text:
    A11A0474.
    STEWART v. THE STATE.
    (713 SE2d 708)
   Miller, Presiding Judge.

Glenn Stewart was indicted on several counts of aggravated child molestation (OCGA § 16-6-4 (c)) and child molestation (OCGA § 16-6-4 (a)). He subsequently filed a motion to dismiss the indictment, alleging a violation of his constitutional right to a speedy trial. The trial court entered an order denying Stewart’s motion, from which he appeals. We discern no error and affirm.

We review a “denial of a motion to dismiss the indictment on speedy trial grounds for abuse of discretion. ...” (Citations omitted.) Ruffin v. State, 284 Ga. 52, 65 (3) (663 SE2d 189) (2008).

The record shows that Stewart was arrested on December 16, 2004. Stewart posted bond and was released from custody on March 2, 2005, and has not been in custody since. On or around February 1, 2006, the grand jury returned an indictment charging Stewart with two counts of aggravated child molestation. Stewart was arraigned on May 16, 2006. Stewart’s attorney was on a leave of absence from July to October 2006.

Stewart’s case first appeared on the trial calendar in March 2007. At the March 7, 2007, calendar call, Stewart’s case was continued as Stewart’s attorney had a leave of absence that conflicted with the March 2007 trial week. Stewart’s case was marked ready and on call for trial at each of the following calendar calls in April, May, and June 2007.

In July 2007, a new prosecutor was assigned to Stewart’s case. In familiarizing himself with Stewart’s case, the new prosecutor interviewed the victim and determined that the case needed to be reindicted to include additional charges and an additional victim. Stewart’s case was thus continued from both the July and August 2007 trial calendars. Stewart’s case was also continued from the September 2007 trial calendar, since Stewart’s attorney had a leave of absence during part of the September 2007 trial week.

The grand jury returned Stewart’s second indictment on September 5, 2007, which, in addition to the previous two counts of aggravated child molestation in his first indictment, set forth an additional count of aggravated child molestation and one count of child molestation. This second indictment also added another count of child molestation involving a second victim. On October 24, 2007, Stewart formally waived his arraignment on the second indictment.

Thereafter, Stewart’s case did not appear on the trial calendar at all during 2008. The record also reflects that Stewart’s attorney was scheduled for two leaves of absence during 2008 — one from February 28, 2008, to March 3, 2008, and the other from September 15, 2008, to January 2, 2009. Stewart’s case next appeared on the trial calendar in February 2009, and thereafter appeared on each successive trial calendar through December 2009. Stewart was excused from appearing at all but three of the 2009 calendar calls. Out of the eleven calendar calls in 2009, Stewart’s case was marked ready and on call for trial at eight of the eleven calendar calls in 2009; at the September 2009 calendar call, he was ordered to appear for trial, but his case was not reached during the trial week. Stewart’s case was continued from four of the calendar calls in 2009 — March pursuant to a joint request, May pursuant to the State’s request, June due to a leave of absence obtained by Stewart’s attorney, and September by the judge.

In March 2010, the prosecutor met with the first victim again. Based on this 2010 meeting, the prosecutor decided to reindict Stewart for a third time to reflect changes in the date ranges of Stewart’s charges. The grand jury returned the third and final indictment on April 14, 2010, charging Stewart with the same offenses set forth in the second indictment — three counts of aggravated child molestation and one count of child molestation involving the original victim, and one count of child molestation involving the second victim. Stewart appeared for his arraignment on this third indictment on April 21, 2010. Pursuant to discussions between the prosecutor and Stewart’s attorney, the parties understood that the State intended to proceed to trial in May 2010 under this third indictment.

On April 22, 2010, the parties appeared for a previously set hearing on several pretrial motions. At the end of this hearing, Stewart filed for the first time a motion to dismiss the indictment due to a violation of his constitutional right to a speedy trial. Because the State had not been previously informed of Stewart’s motion to dismiss, it was not prepared to go forward on the motion at the April 22, 2010, hearing; accordingly, a hearing on the motion was held on June 16, 2010. On July 9, 2010, the trial court entered an order denying Stewart’s motion to dismiss. Stewart now appeals from this order.

An analysis of a constitutional speedy trial claim has two stages. The first stage requires a determination of whether the interval from the defendant’s arrest, indictment, or other formal accusation to the trial is sufficiently long to be considered “presumptively prejudicial.” Ruffin, supra, 284 Ga. at 55 (2) (citing Doggett v. United States, 505 U. S. 647, 651-652 (112 SC 2686, 120 LE2d 520) (1992)). Where the delay is only ordinary, rather than presumptively prejudicial, the defendant’s speedy trial claim fails at the threshold. Id.; Doggett, supra, 505 U. S. at 651-652. A delay that is deemed to be presumptively prejudicial, however, triggers the second stage of the analysis. Id. At this second stage, a court must determine whether the defendant has been deprived of his right to a speedy trial by analyzing a four-part balancing test that considers the conduct of both the State and the defendant (i.e., the Barker-Doggett factors): (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted his right to a speedy trial; and (4) whether the defendant was prejudiced by the delay. Falagian v. State, 300 Ga. App. 187, 188 (1) (684 SE2d 340) (2009) (citing Barker v. Wingo, 407 U. S. 514, 530 (92 SC 2182, 33 LE2d 101) (1972)). “Standing alone, none of these factors are a necessary, or sufficient condition to a finding of deprivation of the right to a speedy trial, but rather should be considered as part of a balancing test.” (Citation omitted.) Davis v. State, 301 Ga. App. 155, 156 (687 SE2d 180) (2009).

1. Presumptive Prejudice. “Speedy trial rights attach at the time of arrest or formal indictment, whichever is earlier.” (Footnote omitted.) Salahuddin v. State, 277 Ga. 561, 562 (592 SE2d 410) (2004). Here, the relevant interval was the time that elapsed between Stewart’s December 16, 2004 arrest and the trial court’s July 9, 2010 denial of Stewart’s motion to dismiss. Accord id. The State concedes, and we agree, that this case long ago crossed the presumptive prejudice threshold. See Ruffin, supra, 284 Ga. at 55 (2) (a); see Chambers v. State, 213 Ga. App. 414, 415 (444 SE2d 820) (1994) (“As a delay approaches one year, in general it is presumptively prejudicial.”) (Citation omitted.). Therefore, this case must proceed to the second stage Barker-Doggett analysis of a constitutional speedy trial claim.

2. Barker-Doggett Analysis.

(a) Whether delay was uncommonly long. The trial court found that the pretrial delay in this case was uncommonly long and presumptively prejudicial, thus triggering an analysis of the remaining factors under Barker-Doggett.

As an initial matter, we find that the trial court misapplied the law by considering the Barker-Doggett length of delay factor simultaneously with its determination of whether the pretrial delay was sufficiently long to be considered presumptively prejudicial. While “[t]he length of the pretrial delay in absolute terms plays a role in the threshold determination of presumptive prejudice ... it also wears another hat as one of the four interrelated criteria that must be weighted in the balance at the second stage of the Barker-Doggett analysis.” (Punctuation omitted.) Ruffin, supra, 284 Ga. at 56 (2) (b) (i). “The uncommon length of the pretrial delay thus merits consideration beyond its use as a liminal screening mechanism.” Id. (citing Doggett, supra, 505 U. S. at 652).

Nevertheless, we agree that a pretrial delay of over five years is uncommonly long, and as such, is a factor to be weighed against the State on the Barker-Doggett scale. Stewart contends on appeal, however, that our opinion in Davis, supra, 301 Ga. App. at 157, requires this factor to be weighed “heavily” against the State. We disagree.

The abuse of discretion we found in Davis was a result of the trial court’s failure to consider the length of delay factor whatsoever in its Barker-Doggett balancing. Davis, supra, 301 Ga. App. at 157. Such is not the case here, where the trial court did consider the length of delay factor, albeit simultaneously with the presumptive prejudice factor, and weighed it against the State in the Barker-Doggett analysis. As such, we cannot say it was an abuse of discretion insofar as the trial court declined to weigh this factor “heavily” against the State. See, e.g., State v. Moses, 301 Ga. App. 315, 317-318 (2) (a), 322 (3) (692 SE2d 1) (2009) (finding no abuse of discretion where the length of pretrial delay, at a little over four years, was weighed as a factor against the State, but not specifically weighed heavily against the State).

(b) Whether Stewart or the government is more to blame for delay. The trial court determined that this factor weighed against the State on the Barker-Doggett scale. Nevertheless, Stewart again argues that the trial court should have weighed this factor heavily against the State. Again, however, we disagree.

“The weight of this factor is determined by the reason given by the party for the delay and exists on a spectrum between deliberate delay to negligence, with deliberate delay weighed most heavily against the responsible party.” Davis, supra, 301 Ga. App. at 157 (2).

The first delay in this case was the year and two months that elapsed between Stewart’s December 2004 arrest and his February 2006 indictment. Although the State indicated that the police were conducting an ongoing investigation subsequent to Stewart’s arrest, the State testified that it could not explain the reason for this first delay. Given the State’s failure “to provide a clear reason for the delay[,] . . . we treat the delay as caused by the State’s negligence.” Frazier v. State, 277 Ga. App. 881, 882 (b) (627 SE2d 894) (2006).

Following his first indictment, Stewart was arraigned approximately three months later, on May 16, 2006; thereafter, approximately ten more months elapsed before Stewart’s case appeared on the trial calendar. The record reflects that the time between a case’s arraignment and appearance on the trial calendar is typically one year. Notably, the trial calendar of the district in which Stewart’s case is pending contains approximately 75 to 100 cases at a time, and as required by statute, newer cases are placed on the calendar as the trial court disposes of the existing cases. Thus, it “appears a large part of the delay was attributable to the number of older cases ahead of [Stewart] on the trial court’s docket.” Nairon v. State, 215 Ga. App. 76, 76-77 (1) (b) (449 SE2d 634) (1994). However, the delay during this time was also partly attributable to Stewart’s counsel’s leave of absence that spanned July through October 2006.

Starting in March 2007, Stewart’s case appeared on seven successive trial calendar calls in 2007. Although Stewart’s case was marked ready and on call at three of these calendar calls, it was also continued from four of these 2007 calendar calls — the first due to a leave of absence of Stewart’s attorney, the second two as a result of the State’s intention to reindict the case, and the final because of both the State’s intention to reindict and Stewart’s attorney’s leave of absence.

With respect to the delay between the removal of Stewart’s case from the trial calendar in October 2007 and its reappearance on the trial calendar in February 2009, the prosecutor testified that Stewart’s case proceeded on a new indictment number following reindictment, and as such, his case was taken off the trial calendar altogether and placed in the back of the line as a newer case. The prosecutor further explained, however, that it was his mistake that Stewart’s case was taken off the trial calendar, and that the trial court’s normal procedure requires that a case stay on the trial calendar based on its original indictment number. Also occurring during this time period were two leaves of absence on the part of Stewart’s attorney — one from February to March 2008 and the other from September 2008 to January 2009.

Starting in February 2009, Stewart’s case appeared on successive trial calendars through March 2010, but was never reached for trial. Stewart’s attorney was also scheduled for multiple leaves of absence during this time between February 2009 and March 2010.

In sum, the record shows that the pretrial delay in this case was partially attributable to Stewart, in light of his attorney’s multiple leaves of absence. The delay was also somewhat “attributable to the number of older cases ahead of [Stewart] on the trial court’s docket.” Nairon, supra, 215 Ga. App. at 76-77 (1) (b). Nevertheless, a large part of the delay was attributable to the government, not only as a result of the State’s multiple reindictments, but also because of the State’s negligence and the trial judge’s failure to call this case in for trial during any one of the available trial weeks on which defense counsel had no leaves of absence and had announced ready for trial. “Nowhere in the record, however, is there any evidence that the delay was the result of bad faith.” Frazier, supra, 277 Ga. App. at 882 (b). Notably, there is no evidence that it “deliberately delayed the trial in an effort to gain a tactical advantage,” Nairon, supra, 215 Ga. App. at 76-77 (1) (b), or in an effort “to hamper the defense,” (citations and punctuation omitted) Layman u. State, 284 Ga. 83, 85 (663 SE2d 169) (2008). Consequently, “although the delay attributable to the State is a negative factor, it is relatively benign.” (Citations and punctuation omitted.) Frazier, supra, 277 Ga. App. at 882 (b).

(c) Stewart’s assertion of right. The trial court weighed this factor against Stewart on the Barker-Doggett scale. We find that the trial court erred to the extent it failed to weigh this factor heavily against Stewart. “The relevant question for purposes of the third Barker-Doggett factor is whether the accused has asserted the right to a speedy trial ‘in due course.’ ” (Citation and footnote omitted.) Ruffin, supra, 284 Ga. at 63 (2) (b) (iii). “This requires a close examination of the procedural history of the case with particular attention to the timing, form, and vigor of the accused’s demands to be tried immediately.” Id. (Citation and footnote omitted.)

Here, Stewart concedes that he never filed a statutory demand for a speedy trial. Nevertheless, this Court “has repeatedly and consistently recognized that a defendant may assert his constitutional speedy trial right through a motion to dismiss asserting a violation of that right.” State v. Porter, 288 Ga. 524, 528 (3) (705 SE2d 636) (2011); see also Ruffin, supra, 284 Ga. at 62 (2) (b) (iii). Thus, Stewart’s April 2010 motion to dismiss was sufficient to assert his constitutional right to a speedy trial. However, Stewart waited over five years, and twenty-one calendar calls, to assert his right.

Despite his delay in asserting his right, Stewart nevertheless cites Grizzard v. State, 301 Ga. App. 613, 616-617 (688 SE2d 402) (2009), arguing that the State in this case was “dilatory in pursuing the matter,” and that therefore, the trial court should have therefore weighed this factor equally against Stewart and the State. We disagree on both counts. First, the State’s conduct here does not rise to the level of negligence that we found in Grizzard. See Grizzard, supra, 301 Ga. App. at 615-616 (1) (b). After the defendant in Grizzard was arrested in 2001, over eight years elapsed before the defendant was brought to trial on child molestation charges; for six of those eight years, there was a complete absence of any activity whatsoever on the part of the State. Id. at 613, 616 (1) (a). Moreover,

[t]he State concede[d] that it did not diligently prosecute the case, that the case had fallen “off the radar” screen, and that even though the State was aware of the case and was responsible for calendaring cases, the case disappeared off the calendar and “just did not get prosecuted” until it began to appear on court calendars [eight years later].

Id. at 613.

Here, on the other hand, the longest period of time during which there was a complete absence of any activity on Stewart’s case was between his October 2007 arraignment (on the second indictment) and his appearance on the trial calendar in February 2009. Although the State admitted that this delay was due to its own mistake, Stewart’s attorney was also unavailable during some of this time — specifically, February 28, 2008, through March 3, 2008, and September 15, 2008, through January 2, 2009. It was not an abuse of discretion insofar as the trial court declined to weigh equally against the State Stewart’s failure to timely assert his right to a speedy trial. That being said, however, we do find error with the trial court’s ruling to the extent it did not weigh heavily against Stewart his failure to timely assert his right. See, e.g., Higgins v. State, 308 Ga. App. 257, 261, 262 (2) (b)-(c), 263 (2) (e) (707 SE2d 523) (2011) (finding that the trial court failed to specifically consider defendant’s 22-month delay in asserting his right to a speedy trial as a factor that weighed heavily against the defendant on the Barker-Doggett scale); see also Brown v. State, 287 Ga. 892, 895 (1) (c), 896 (2) (c) (700 SE2d 407) (2010) (weighing assertion of right factor heavily against co-defendants, one of whom waited more than three years and the other who waited two years, to assert their right to a speedy trial); Layman, supra, 284 Ga. at 85-86 (holding that a four-year delay weighed heavily against the defendant).

(d) Prejudice. The trial court concluded that Stewart failed to present any evidence showing that the pretrial delay has prejudiced the defense, and that, in some respects, the pretrial delay has prejudiced the State’s case. On appeal, Stewart argues that the fourth Barker-Doggett factor should be weighed heavily against the State. We disagree.

With respect to this final Barker-Doggett factor, there are three types of prejudice associated with an unreasonable delay before trial: (i) oppressive pretrial incarceration; (ii) anxiety and concern of the defendant; and (iii) the possibility that the defense will be impaired. Porter, supra, 288 Ga. at 529 (2) (c) (4). “Of these forms of prejudice, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” (Citation and punctuation omitted.) Id.

Before addressing the trial court’s consideration of the three specific types of prejudice, however, we first look at Stewart’s contention that this case gives rise to a presumption of actual prejudice. As discussed above in Division 1, such presumption was established by the length of the pretrial delay in this case, and “once the threshold presumptive prejudice is satisfied, a presumption of prejudice always exists, although it increases in weight over time.” (Citations omitted.) Porter, supra, 288 Ga. at 531 (2) (c) (4). Nevertheless, a finding of presumptive prejudice “cannot alone carry [Stewart’s] Sixth Amendment claim without regard to the other Barker criteria.” (Punctuation and footnote omitted.) Harris v. State, 284 Ga. 455, 457 (667 SE2d 361) (2008). Thus, in weighing the fourth Barker-Doggett factor, the trial court properly considered each specific type of prejudice, which we address below.

(i) Oppressive pretrial incarceration. Stewart does not challenge the trial court’s finding on this type of prejudice and concedes that no oppressive pretrial incarceration occurred here. As such, we need not consider it on appeal.

(ii) Anxiety and concern. The trial court found that Stewart failed to demonstrate that he experienced any extraordinary anxiety and concern occasioned by the pretrial delay in this case. Stewart contends on appeal that his occupation as a truck driver required frequent out-of-state travel for extended periods of time and that the frequency with which he has had to appear in court impacted his ability to take on work and support his family. Consistent with the trial court’s finding, however, the record in this case contains no testimony from Stewart regarding any purported anxiety he might have suffered, nor does it contain any other evidence supporting Stewart’s contentions on this issue. Accord Porter, supra, 288 Ga. at 530 (2) (c) (4). In any event, Stewart chose not to alleviate his anxiety and concern by waiting over five years to assert his speedy trial demand. Accord Higgins, supra, 308 Ga. App. at 262 (2) (d).

(iii) Impairment of defense. The trial court found that Stewart failed to present any evidence showing that his defense has been impaired as a result of the pretrial delay. Stewart challenges the trial court’s finding, asserting there is evidence that his defense was actually impaired. We disagree.

The weight given to the prejudice factor may be bolstered if the defendant can demonstrate some actual impairment to his defense in addition to prejudice that is presumed from the passage of time. Likewise, the weight given to presumed prejudice may be reduced or even eliminated if the State can show that the defense has not, in fact, been substantially impaired.

Porter, supra, 288 Ga. at 532 (2) (d).

Stewart first points to a lost videotape, which contained a 2004 interview that the police conducted with the victim, contending that such videotape “clearly contained valuable impeachment material.” Stewart claims that given the passage of time, the memories of the police interviewer and the victim regarding the particular statements made in that 2004 interview have been significantly impaired. As an initial matter, there is no showing that the police detective who conducted the interview (and who is in fact a witness for the State) would be unable to recall statements made by the victim during the 2004 interview. Moreover, as the trial court correctly noted, “[mjerely asserting that memories have faded over time does not satisfy [the impairment] requirement.” (Citations and punctuation omitted.) Lambert v. State, 302 Ga. App. 573, 577 (4) (692 SE2d 15) (2010). Moreover, given Stewart’s contention that the State knew about the lost videotape as early as 2005, we find that the pretrial delay in this case actually benefitted Stewart’s defense insofar as it gave rise to additional impeachment material that Stewart would otherwise have been without had this case timely proceeded to trial. Notably, the prosecutor testified that he was personally aware of two statements made by the victim in the prosecutor’s 2010 interview that differed from the statements made by the victim in the prosecutor’s 2007 interview.

Stewart next points to diminished recollections of the interview the prosecutor conducted with the victim in 2007. Stewart claims that the prosecutor’s 2007 interview was not recorded and the passage of time has diminished the memories of the prosecutor and the victim. Again, however, Stewart’s assertion that memories have faded over time does not satisfy the requirement of showing actual prejudice. See Lambert, supra, 302 Ga. App. at 577 (4). Moreover, the prosecutor’s testimony demonstrates that he does in fact recollect his 2007 interview with the victim; notably, “he was the only witness who could remember the 2007 statements” of the victim; to the extent that the victim’s 2007 and 2010 statements conflicted, the prosecutor was disqualified and required to become a witness in the case. The prosecutor’s testimony further reflects that the evidence in this case contains notes that he recorded during the 2007 interview, the relevant portions of which the State produced to Stewart.

Stewart’s third contention of impairment is that he was working as a truck driver in Iraq during 2006 and only returned home for brief visits; he argues that his ability to produce documentation as to his whereabouts, particularly during the time between his arrest and first indictment, has significantly diminished given the passage of time. Stewart’s claim is without merit. During this 2006 time frame, Stewart was aware that he had been arrested for the aggravated child molestation offense. Thus, Stewart’s failure to preserve evidence following his 2004 arrest is not a result of pretrial delay, but rather Stewart’s own negligence. See Herndon v. State, 277 Ga. App. 374, 379 (4) (c) (626 SE2d 579) (2006) (“[Defendant claimed] that documents were lost which would have shown that he did not live at a residence from which inculpatory evidence was seized! ; ] [a]t the hearing on his motion, however, [defendant] offered no evidence of his alleged inability to gather or preserve evidence.”); Nairon, supra, 215 Ga. App. at 77 (1) (d) (“We find no evidence that the delay caused [defendant] to lose his briefcase [which was claimed to have contained the defendant’s trial preparation materials] or caused other actual, substantial prejudice to the defendant.”).

Stewart’s final assertion of impairment is that the witnesses’ recollections of events and the ability of the defense to challenge the credibility of the witnesses have been significantly impacted by the pretrial delay. To demonstrate an impaired defense, however, Stewart must present more than vague or conclusory statements. Lambert, supra, 302 Ga. App. at 577 (4). Moreover, Stewart’s assertion fails since it likewise consists of nothing more than mere assertions that memories have faded over time. Id.

Decided July 6, 2011.

Maryann F. Blend, for appellant.

Daniel J. Porter, District Attorney, Franklin P. Clark, Samantha Routh, Assistant District Attorneys, for appellee.

(e) Barker-Doggett balancing. While we certainly do not approve of the delay occasioned in this case, “[a] trial court exercises substantial discretion in applying the Barker balancing test, and its ultimate judgment is reviewed on appeal only for abuse of that discretion.” (Citation and punctuation omitted.) Porter, supra, 288 Ga. at 533 (2) (e). In balancing the first Barker-Doggett factor, the trial court properly weighed the length of delay against the State, although the trial court did err in failing to consider the length of delay factor separately from its threshold presumptive prejudice analysis. As to the reason for delay, the trial court properly weighed this factor against the State, taking into account Stewart’s contribution to some of the delay and the government’s relatively benign culpability. With respect to Stewart’s delay of over five years in asserting his right to a speedy trial, however, the trial court erred in failing to weigh this factor heavily against Stewart. Finally, although the substantial pretrial delay established a presumption of actual prejudice, the trial court correctly determined that Stewart failed to substantiate this presumption with any evidence of actual impairment or extraordinary anxiety and concern.

Although the trial court’s analysis was somewhat flawed, and therefore our deference to the trial court diminished, see Porter, supra, 288 Ga. at 533 (2) (e), we cannot say in this case that the trial court abused its discretion by denying Stewart’s motion to dismiss. Cf. Henderson v. State, 290 Ga. App. 427, 431-432 (1) (d), (e) (662 SE2d 652) (2008).

Judgment affirmed.

Ellington, C. J., and Doyle, J., concur.

       See OCGA § 17-8-1 (“The cases on the criminal docket shall be called in the order in which they stand on the docket unless the defendant is in jail or, otherwise, in the sound discretion of the court.”).

       We note our departure from the trial court’s original order to the extent the trial court implicated the State as the party responsible for failing to call Stewart’s case for trial. As the prosecutor himself correctly pointed out, he can ask a judge to try a case on which the State is ready, but the ultimate decision of whether or not to do so rests solely with the trial judge. See Cuzzort v. State, 271 Ga. 464, 464 (3) (519 SE2d 687) (1999) (“While a trial judge may in his discretion call cases out of order, under [OCGA] § 17-8-1, the district attorney is without authority to independently calendar and call cases for trial.”) (Emphasis supplied.). Nevertheless, “[t]he relevant inquiry for purposes of the second factor is not whether the prosecutor or the accused bears more responsibility for the delay, but whether the government or the criminal defendant is more to blame for that delay.” (Punctuation and footnote omitted.) Ruffin, supra, 284 Ga. at 61 (2) (b) (ii). And the “Supreme Court [of Georgia] has made it clear that in the Barker-Doggett analysis, the ‘government’ includes all state actors, even trial and appellate* court judges.” Id. (Punctuation and footnote omitted.).

       For example, the State testified that its case has been prejudiced because the details of the victinfis allegations have changed over the years.

       In an attempt to fit the instant case under the particular circumstances of Moses, supra, 301 Ga. App. at 322 (2) (d), Stewart argues that the videotape of the 2004 police interview with the victim, as well as Stewart’s ability “to produce ‘alibi’ evidence in the form of pay-stubs, plane tickets or other pertinent documents,” are both material to Stewart’s case. We are not convinced. In Moses, we affirmed the trial court’s finding that the defendant successfully showed his defense would be hampered in that any possible alibi witnesses (the defendant indicated at the hearing on his motion to dismiss that his intent was to call alibi witnesses to establish his whereabouts at the time the crime was committed) would be deemed less credible by a jury because they will assume memory issues due to the four years of delay. 301 Ga. App. at 322 (2) (d).
      In reaching our conclusion in Moses, we reasoned that “[a]lthough a generalized statement that the memories of witnesses have faded over time is not deemed sufficient, memory lapses that substantially relate to a material issue are deemed prejudicial.” Id. Stewart’s arguments merely assert generalized memory lapses and fail to show that they relate to material issues. Accord Threatt v. State, 282 Ga. App. 884, 890-891 (d) (640 SE2d 316) (2006) (“While [the defendant] further alleges that the detective’s memory about his investigation has faded, those memory lapses must substantially relate to a material issue to be prejudicial. . . . [However, the defendant] has not shown how [the detective’s] failings of memory [about inconsequential information] substantially related to a material issue or would hamper the presentation of his defense on retrial.”) (citations and punctuation omitted).


source: Caselaw Access Project

author: Miller, Presiding Judge.

license: Public Domain

text:
    A11A0530.
    DANIELS v. THE STATE.
    (714 SE2d 91)
   Miller, Presiding Judge.

Following a jury trial, Vandy Mack Daniels was convicted of armed robbery (OCGA § 16-8-41), aggravated assault (OCGA § 16-5-21), and possession of a firearm during the commission of a crime (OCGA § 16-11-106). The trial court denied Daniels’s motion for new trial. Daniels appeals, asserting that the trial court erred: (i) in failing to direct a verdict of acquittal; (ii) in failing to include a complete instruction on simple assault when defining the crime of aggravated assault; and (iii) in failing to merge the aggravated assault offense with the armed robbery offense for sentencing purposes. Finally, Daniels contends that he was not afforded reasonably effective assistance of counsel. We agree that the trial court’s failure to merge the aggravated assault conviction with Daniels’s armed robbery conviction in imposing the sentence was erroneous, and we therefore vacate the aggravated assault conviction and remand the case for resentencing. The remaining claims of error, however, are without merit and we affirm on those grounds.

Viewed in the light most favorable to the verdict, see Jackson v. Virginia, 443 U. S. 307, 318-319 (99 SC 2781, 61 LE2d 560) (1979), the evidence shows that on March 7, 2006, Daniels, who was wearing a dark mask with aluminum foil underneath entered a convenience store, pointed a gun at the store clerk behind the counter, and demanded money. A second store employee was also present behind the counter with the store clerk at the time of the robbery. While the store clerk was gathering money from the cash registers, Daniels pulled the trigger of his gun three or four times. Each time, however, Daniels’s weapon misfired. The store clerk put the cash into Daniels’s bank bag. After Daniels obtained the cash, he told the clerk to turn around and put her hands up, at which point Daniels ran out the front door of the convenience store.

At approximately the same time Daniels ran from the convenience store, a third employee, who had been unaware of the robbery, came out from the back room where he had been working. When the third employee was informed that the store had been robbed, he ran from the store, pursuing Daniels on foot. The store clerk thereafter called the police to report the robbery. While en route to the convenience store, the police were informed that a store employee was pursuing Daniels; they subsequently changed course and went directly to the area to which Daniels had fled.

Approximately seven police officers coordinated their efforts in order to locate Daniels. The officers saw Daniels running out of the nearby woods and apprehended Daniels after he was knocked down by a ‘‘concerned citizen.” During Daniels’s arrest, the officers recovered a gun with four empty cartridges and one loaded cartridge; a mask with cutout eye holes and tinfoil; and a bank bag containing cash, all of which were lying next to him on the ground.

Daniels was tried before a jury on February 19, 2007. The jury returned a verdict finding Daniels guilty of armed robbery, aggravated assault, and possession of a firearm during the commission of a crime. At his June 1, 2007 sentencing hearing, Daniels was sentenced to life imprisonment without possibility of parole for armed robbery in accordance with this State’s recidivist statute; twenty consecutive years for aggravated assault; and five consecutive years for possession of a firearm during the commission of a crime. The trial court granted Daniels’s request to file an out-of-time motion for a new trial. Following a hearing, the trial court denied Daniels’s motion for new trial on the merits. The instant notice of appeal followed.

1. On appeal, Daniels first contends that the trial court erred in denying his motion for a directed verdict of acquittal because there was no in-court identification of Daniels as the person who was apprehended shortly after the armed robbery. We disagree.

The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson[, supra, 443 U. S. 307], the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Moreover, the test established in Jackson is the proper test for us to use when the sufficiency of the evidence is challenged, [and] the challenge arises from the overruling of a motion for directed verdict. . . .

(Citations and punctuation omitted.) Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). Thus, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, supra, 443 U. S. at 319 (III) (B).

Here, contrary to Daniels’s assertion otherwise, the testimony of the arresting officer positively identified Daniels in court as the same person who was arrested and charged for the crimes of armed robbery, aggravated assault, and possession of a firearm during the commission of a crime:

Q. . . . [D]id you help to arrest the offender?
A. Yes, sir, I did.
Q. And was that the defendant Vandy Mack Daniels?
A. Yes, sir, it was him. I placed the handcuffs on him.

Daniels nevertheless argues that none of the testifying witnesses directly identified Daniels as the masked perpetrator who robbed the convenience store. In-court identification, however, was not the only way for the State to prove that Daniels was the person who committed the crimes. Pierce v. State, 251 Ga. App. 600, 602 (1) (554 SE2d 787) (2001). Indeed, the State can connect a defendant to a crime utilizing evidence which is entirely circumstantial. When the State does so, however, such circumstantial

evidence must be so strong as to exclude every other reasonable hypothesis save that of the guilt of the accused. But it need not exclude every conceivable inference or hypothesis — only those that are reasonable. Whether every reasonable hypothesis except that of the guilt of the defendant has been excluded is a question for the jury. Where the jury determines the evidence excluded every reasonable hypothesis save that of guilt, such a finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.

(Footnote omitted.) Hart v. State, 305 Ga. App. 259, 262 (1) (a) (699 SE2d 445) (2010).

Here, Daniels matched the description of the perpetrator given by both the clerk and the other store employee behind the counter. Moreover, when Daniels was apprehended from the woods in the nearby area, the officer recovered next to his person the contraband and instrumentalities used in the commission of the robbery, including the dark-colored mask with tinfoil, a bank bag containing stolen money, and a handgun. This evidence of the circumstances was sufficient to establish Daniels’s identity as the perpetrator and his guilt of the charged offenses. Accord Hart, supra, 305 Ga. App. at 262 (1) (a); Mullins v. State, 267 Ga. App. 393, 395 (1) (a) (599 SE2d 340) (2004).

2. Daniels contends that the trial court’s jury charge was incomplete as to aggravated assault because the charge did not fully define, simple assault as an essential element of the offense of aggravated assault. We disagree.

In reviewing an allegedly erroneous jury instruction, we apply the plain legal error standard of review. A jury charge must be considered as a whole and the parts read in conjunction with each other. Where a charge as a whole substantially presents issues in such a way as is not likely to confuse the jury even though a portion of the charge may not be as clear and precise as could be desired, a reviewing court will not disturb a verdict amply authorized by the evidence.

(Citation, punctuation and footnote omitted.) Pincherli v. State, 295 Ga. App. 408, 413-414 (3) (671 SE2d 891) (2008).

Trial courts should tailor their charges to match the allegations of indictments, either by charging only the relevant portions of the applicable Code sections or by giving a limiting instruction that directs the jury to consider only whether the crimes were committed in the manner alleged in the indictment.

(Citation omitted.) Braley v. State, 276 Ga. 47, 53 (31) (572 SE2d 583) (2002).

The indictment in this case charged Daniels with aggravated assault by committing the underlying assault on the victim with a handgun, a deadly weapon. See OCGA § 16-5-21 (a) (2) (“A person commits the offense of aggravated assault when he or she assaults . . . [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.”). This count of the indictment further specified the manner in which Daniels was alleged to have committed the underlying assault — “by pointing said handgun at the victim and repeatedly pulling the gun’s trigger in an attempt to shoot said victim.” (Emphasis supplied.) At trial, the court charged the jury as follows:

Count two of the indictment charges Mr. Daniels with aggravated assault. Georgia law provides as follows, a person commits the offense of aggravated assault when he assaults another person with a deadly weapon. To constitute such an assault, actual injury to the alleged victim need not be shown. It is only necessary that the evidence show[ ] . . . beyond a reasonable doubt that the defendant attempted to cause a violent injury to the alleged victim. The State must also prove as a material element of aggravated assault in this case that the assault was made with a deadly weapon.

(Emphasis supplied.)

Daniels contends that this charge was incomplete because it failed to instruct the jury that, in addition to “attempting to commit a violent injury,” assault can also be committed by “placing another in reasonable apprehension of immediately receiving a violent injury.” As Daniels correctly points out, “central to the offense of aggravated assault is that an assault as defined in OCGA § 16-5-20 be committed on the victim.” (Citation omitted.) Brinson v. State, 272 Ga. 345, 347 (1) (529 SE2d 129) (2000). He is also correct in his assertion that under OCGA § 16-5-20, a person commits assault by: “(1) [a]ttempt[ing] to commit a violent injury to the person of another; or (2) [c]ommit[ting] an act which places another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-20 (a) (1), (2). Daniels is incorrect, however, insofar as he argues that the trial court erred when it charged the jury with only the first subsection of OCGA § 16-5-20 (a).

To the contrary, the trial court did as it was required and delivered a charge tailored to the indictment. See West v. State, 270 Ga. App. 71, 74 (1) (606 SE2d 100) (2004) (“[T]he trial court has the duty to deliver charges tailored to the indictment and adjusted to the evidence.”) (citations and punctuation omitted). Notably, the aggravated assault count of the indictment charged Daniels with making an assault by attempting to shoot the victim (a violent injury) with a handgun (a deadly weapon). There is nothing in the aggravated assault count that charges Daniels with making an assault by placing the victim in reasonable apprehension of immediately receiving a violent injury. Accordingly, the trial court properly tailored its charge to the allegation in the indictment by charging the jury with just the relevant portion of the applicable simple assault statute (OCGA § 16-5-20 (a) (l)). Thus, the trial court’s jury charge on aggravated assault was not erroneous.

3. Daniels contends his trial counsel was ineffective, specifically claiming that his trial counsel offered to the jury his personal opinion as to Daniels’s guilt regarding other crimes with which Daniels was not charged. We discern no error.

To establish ineffective assistance of counsel under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), a criminal defendant “bears the burden of showing (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense by creating a reasonable probability that but for counsel’s errors, the outcome of the trial would have been different.” (Citations and footnotes omitted.) Miller v. State, 305 Ga. App. 620, 621 (2) (700 SE2d 617) (2010). However, “a court addressing the ineffective assistance issue is not required to approach the inquiry in that order or even to address both components if the defendant has made an insufficient showing on one.” (Citation and punctuation omitted.) Covington v. State, 251 Ga. App. 849, 852 (2) (555 SE2d 204) (2001). “We will not reverse a trial court’s findings regarding either the deficiency or prejudice prong of the Strickland test unless clearly erroneous.” Artis v. State, 299 Ga. App. 287, 291 (3) (682 SE2d 375) (2009).

We conclude that Daniels cannot carry his burden of showing that his trial counsel’s performance was deficient. “In evaluating an attorney’s performance, there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Where trial counsel does not testify at the motion for new trial hearing, it is extremely difficult to overcome this presumption.” Rivers v. State, 271 Ga. 115, 117 (2) (516 SE2d 525) (1999). Here, trial counsel did not testify at the motion for new trial hearing. Under these circumstances, we presume that trial counsel’s decisions constituted trial strategy. See id. In this context, trial counsel’s closing argument was a trial strategy to convince the jury that the evidence proffered by the State was insufficient to prove any of the crimes with which Daniels was actually charged — i.e., armed robbery, aggravated assault, or possession of a weapon during the commission of a crime. The relevant portion of trial counsel’s closing argument reads as follows:

[T]he State has not proved . . . this man committed an armed robbery. They have not proved to you that he was the man clicking the gun if indeed he was the man clicking the gun. . . . [H]e may have committed the crime of theft by receiving stolen property. For all I know there’s somebody out there in the woods dead that he killed. . . . He may have committed that crime but he’s not charged with that. He’s charged with robbing that store, clicking that gun at [the store clerk] and using a gun in commission of that robbery.

Daniels asserts that his trial counsel’s comments suggested Daniels “may be guilty either of theft by receiving or . . . of an unrelated murder,” and therefore rendered trial counsel ineffective. Contrary to his argument, this Court has concluded “that it was a valid trial strategy . . . for counsel to argue that while the evidence might show a lesser charged offense, the evidence did not show that his client was guilty of a greater charged offense.” Mallon v. State, 266 Ga. App. 394, 396 (2) (597 SE2d 497) (2004). We likewise conclude here that trial counsel’s point in his closing argument was that regardless of any other crimes, Daniels was not proven to be guilty of the specific crime for which he was charged. Trial counsel’s argument, aimed at requesting an acquittal on the charged offenses, was a reasonable trial strategy. Accord Paul v. State, 257 Ga. App. 86, 87 (570 SE2d 399) (2002) (“[Defense counsel’s decision] to show that the State could prove robbery, but not armed robbery. . . was a reasonable professional strategy considering the overwhelming evidence that [the defendant] stole the [victim’s] pocketbook.”) (punctuation omitted).

Accordingly, Daniels cannot overcome the strong presumption that his counsel rendered effective assistance.

4. In his final enumeration, Daniels argues that the trial court erred in failing to merge the offense of aggravated assault with that of armed robbery for purposes of sentencing. We agree.

Although “aggravated assault is not included in armed robbery as a matter of law, ... it may be included as a matter of fact.” (Citation and punctuation omitted.) Young v. State, 272 Ga. App. 304, 308 (2) (612 SE2d 118) (2005).

To determine if the aggravated assault [ ] [was a] lesser included offense[ ] of the armed robber[y], we apply the “required evidence” test set forth in Drinkard v. Walker, 281 Ga. 211 (636 SE2d 530) (2006). Under that test, we examine whether each offense requires proof of a fact which the other does not.

Decided July 6, 2011.

Peter D. Johnson, for appellant.

Richard A. Mallard, District Attorney, Keith A. McIntyre, Assistant District Attorney, for appellee.

(Citation and punctuation omitted.) Long v. State, 287 Ga. 886, 888 (2) (700 SE2d 399) (2010).

In this case, Daniels was charged with armed robbery (OCGA § 16-8-41) by use of a gun. Daniels was also charged with aggravated assault (OCGA § 16-5-21) by pointing a gun, a deadly weapon, at the store clerk and repeatedly pulling the gun’s trigger. The Supreme Court of Georgia has established that aggravated assault with a deadly weapon does not require proof of a fact that armed robbery does not. Long, supra, 287 Ga. at 889 (2). The elements of Daniels’s armed robbery charge under OCGA § 16-8-41 (a) include an intent to rob, the use of an offensive weapon, and the taking of property from the person or presence of another. See id. The elements of Daniels’s aggravated assault charge under OCGA § 16-5-21 (a) include an assault upon the victim, an intent to rob, and the use of a deadly weapon. Both crimes required proof of an intent to rob. Id. at 888 (2). Moreover, the “assault upon the victim” requirement of aggravated assault is the equivalent of the “use of an offensive weapon” requirement of armed robbery, and the “deadly weapon” requirement of this form of aggravated assault is the equivalent of the “offensive weapon” requirement of armed robbery. Id. at 888-889 (2).

Thus, there is no element of aggravated assault with a deadly weapon that is not contained in armed robbery, and Daniels’s aggravated assault conviction merges into his armed robbery conviction. See Long, supra, 287 Ga. at 889 (2). Accordingly, the conviction for and sentence imposed on the aggravated assault count is hereby vacated, and we remand this case for resentencing.

Judgment affirmed in part and vacated in part, and case remanded for resentencing.

Ellington, C. J., and Doyle, J., concur.

       “[T]he grant of an out-of-time appeal constitutes permission to pursue the post conviction remedy of a new trial. ... In this respect, the grant of an out-of-time appeal is the functional equivalent of the entry of a judgment.” Garcia v. State, 275 Ga. App. 405, 405-406 (620 SE2d 624) (2005). Moreover, “when a motion for new trial . . . has been filed, the notice [of appeal] shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion.” OCGA § 5-6-38 (a).

       The record in this case reflects that after the jury retired to elect a foreperson, the trial court asked for exceptions to the charges and Daniels’s trial counsel reserved his objections. At the time of Daniels’s February 2007 trial, trial counsel’s reservation of objections was procedurally sufficient to preserve error with regard to jury instructions in criminal cases. See Loadholt v. State, 286 Ga. 402, 404 (3) (687 SE2d 824) (2010). Thus, trial counsel was not required to “inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate,” as is now required by OCGA § 17-8-58 (a). See id. at 405 (3), n. 3 (“The law with respect to the preservation of error with regard to jury instructions in criminal cases changed with the enactment of OCGA § 17-8-58, effective July 1, 2007.”).

       Daniels also contends that without this OCGA § 16-5-20 (a) (2) language, the charge failed to instruct the jury on the essential elements of the offense of aggravated assault. Daniels’s argument is without merit. The Supreme Court of Georgia has stated that “a victim’s apprehension of receiving a violent injury is not an essential element of an assault in which it is alleged that the defendant actually attempted to commit a violent injury to the person of the victim.” (Citations and punctuation omitted.) Brinson, supra, 272 Ga. at 347 (1).

       Cf. Cantera v. State, 289 Ga. 583 (713 SE2d 826) (2011) (discerning no error where trial court failed to instruct jury on simple assault altogether in connection with its charge on aggravated assault where simple assault did not constitute a substantive point or issue under the circumstances of that aggravated assault case).


author: Dillard, Judge.

text:
    A11A0547.
    SINGLETARY v. THE STATE.
    (713 SE2d 698)
   Dillard, Judge.

Douglas Williams Singletary appeals his conviction for affray, contending that the evidence was insufficient to support his conviction beyond a reasonable doubt because the State failed to prove that he engaged in a fight in a public place. For the reasons noted infra, we agree and reverse Singletary’s conviction.

Viewing the evidence in the light most favorable to the jury’s verdict, the record shows that on January 4, 2010, Singletary was a prisoner in the Hall County jail. Early that morning, Singletary and another inmate, Kevin Eccles, were clearing breakfast trays from a communal area in their cell pod when the two became engaged in a physical altercation. An officer assigned to the area became aware of the fight when he noticed the reactions of locked-up inmates, who were looking down into the communal area.

Several officers responded to the fray and commanded Single-tary and Eccles to stop fighting. The two inmates, however, refused to cease their fisticuffs, and the officers eventually had to step in and separate them. For his part, Singletary resisted the officers’ efforts to restore order while unleashing a stream of obscenities at them; but he was ultimately subdued with a taser, handcuffs, and leg shackles. And while Eccles later characterized his altercation with Singletary as merely “a little tussle,” this unfortunate encounter left several puddles of blood on the floor.

Thereafter, Singletary was indicted on charges of felony obstruction, battery, and affray, and he was ultimately convicted by a jury of misdemeanor obstruction and affray. The trial court denied Single-tary’s motions for directed verdict and a new trial based on the insufficiency of the evidence. This appeal follows, in which Single-tary only challenges his conviction for affray.

Specifically, Singletary argues that the evidence is insufficient to sustain his conviction for affray because the State was incapable of proving that the Hall County jail was a “public place” within the meaning of OCGA §§ 16-1-3 (15) and 16-11-32. We agree.

At the outset, we note that the offense of “affray” is defined as “fighting by two or more persons in some public place to the disturbance of the public tranquility.” Additionally, OCGA § 16-1-3 (15), which applies to OCGA § 16-11-32 (a), defines “public place” as “any place where the conduct involved may reasonably be expected to be viewed by people other than members of the actor’s family or household.” And under this general definition, we have previously (and understandably) held that the determination of what constitutes a “public place” is a question of fact for the jury.

Nevertheless, the general — and fairly sweeping — definition of “public place” was narrowed somewhat in 1996, when the General Assembly amended Georgia’s public-indecency statute, OCGA § 16-6-8, to include the following: “For purposes of this Code section only, ‘public place’ shall include jails and penal and correctional institutions of the state and its political subdivisions.” This 1996 enactment, then, served to limit the broader, earlier-enacted definition of “public place.”

In construing these statutes, “we apply the fundamental rules of statutory construction that require us to construe the statute [s] according to [their] terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage.” Additionally, “[a]ll statutes are presumed to be enacted with full knowledge of existing law[,] and their meaning and effect [are] to be determined with reference to the constitution as well as other statutes and decisions of the courts.”

With these guiding principles in mind, we conclude that if the General Assembly had intended for the definition of “public place” in OCGA § 16-1-3 (15) to include “jails and penal and correctional institutions of the state and its political subdivisions,” it would have been unnecessary to specifically define “public place” as including such institutions in the later-enacted public-indecency statute. Further, the public-indecency statute explicitly provides that jails and penal/correctional institutions are only “public places” for purposes of that particular Code section.

Taking the words of OCGA § 16-1-3 (15) and OCGA § 16-6-8 (d) at their plain meaning, avoiding an interpretation that would result in surplusage, and applying the last-enacted rule, we conclude that “public place” includes “jails and penal and correctional institutions of the state and its political subdivisions” only in the context of the public-indecency statute. Therefore, as a matter of law, Singletary cannot be/could not have been convicted of affray for engaging in a fight in the Hall County Jail, which is not a “public place” and, thus, cannot satisfy an essential element of the crime of affray.

Decided July 6, 2011.

Travis A. Williams, H. Bradford Morris, Jr., for appellant.

Lee Darragh, District Attorney, John D. West, Jr., Assistant District Attorney, for appellee.

Accordingly, for all of the foregoing reasons, we reverse Single-tary’s conviction of misdemeanor affray and remand this case to the trial court for resentencing consistent with this opinion.

Judgment reversed and case remanded for resentencing.

Smith, P. J., and Mikell, J., concur.

        See OCGA § 16-11-32 (“An affray is the fighting by two or more persons in some public place to the disturbance of the public tranquility.”).

        See, e.g., English v. State, 301 Ga. App. 842, 842 (689 SE2d 310) (2010) (holding that on appeal a defendant no longer enjoys a presumption of innocence and that “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (footnote and punctuation omitted)).

       Prior to trial, the State nolle prossed the battery charge.

        See OCGA § 16-11-32 (a); see also In the Interest of X. W., 301 Ga. App. 625, 630 (4) (688 SE2d 646) (2009) (though challenged on other grounds, upholding adjudication of delinquency based on affray that occurred inside public-school restroom). See generally Watson v. State, 261 Ga. App. 562, 564 (1) (583 SE2d 228) (2003) (holding that “[pjarticipants in the affray must intend to fight; unwilling participants, or those acting solely in self-defense, lack the necessary intent” (footnote omitted)).

        See generally OCGA § 16-1-3 (containing “definitions” for Title 16).

       OCGA § 16-1-3 (15); see also Ga. L. 1968, pp. 1249, 1265, § 1.

        See Collins v. State, 191 Ga. App. 289, 289 (1) (381 SE2d 430) (1989) (“Whether the act was performed in a ‘public place’ within the meaning of the statute was a question of fact which the trial court properly left for the jury’s resolution.” (citation omitted)); Greene v. State, 191 Ga. App. 149, 150 (381 SE2d 310) (1989) (“What constitutes a ‘public place’ within the meaning of our statute! ] is a question of fact which must be proved or disproved by the evidence in each case.” (citation and punctuation omitted)); Clark v. State, 169 Ga. App. 535, 536 (3) (313 SE2d 748) (1984) (“Whether an act is performed in a ‘public place’ is a jury question.” (citation omitted)); see also United States v. Floyd, 281 F3d 1346, 1349 (III) (A) (2002) (public intoxication); Martin v. State, 291 Ga. App. 363, 366 (1) (b) (662 SE2d 185) (2008) (same); Ridley v. State, 176 Ga. App. 669, 670 (337 SE2d 382) (1985) (same). Cf. People v. Giacinti, 44 Ill. App. 3d 699, 702 (358 NE2d 934) (Ill. App. 3d 1974) (noting, in context of public-indecency statute that used a similar definition for “public place,” that “when imprisoned, the prisoner is deprived of his private life” and “[h]is entire existence becomes public, open to the view of other prisoners, as well as prison officials”). Compare Favors v. State, 104 Ga. App. 854, 855 (123 SE2d 207) (1961) (holding, in case concerning public intoxication, that the yard of a county jail may become a public place “under certain circumstances, and whether the yard of a certain jail is a place of public gathering or assembly in a given instance is for the jury”). But see Tooke v. State, 4 Ga. App. 495, 504-08 (4) (61 SE 917) (1908) (analyzing the nature of “public places” and holding that “while a town guardhouse may be made a public place by an assemblage of persons there, it is not primarily nor per se such a place” in context of prohibited liquor sales).

       OCGA § 16-6-8 (d) (emphasis supplied); see Ga. L. 1996, pp. 312-13, § 1; see also Minor v. State, 232 Ga. App. 246, 246 (1) (501 SE2d 576) (1998) (“Correctional institutions are public places within the meaning of the public indecency statute.” (citing OCGA § 16-6-8 (d))).

        See Berry v. City of East Point, 277 Ga. App. 649, 654 (6) (c) (627 SE2d 391) (2006) (holding that later-enacted provision governed over earlier-enacted provision and that “a specific statute will prevail over a general statute, absent any indication of a contrary legislative intent, to resolve any inconsistency between them” (citation and punctuation omitted)); see also United Savings Ass’n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U. S. 365, 371 (II) (108 SC 626, 98 LE2d 740) (1988) (Scalia, J.) (“A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme — because the same terminology is used elsewhere in a context that makes its meaning clear, or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.” (citations omitted)).

        Currid v. DeKalb State Ct. Probation Dept., 285 Ga. 184, 187 (674 SE2d 894) (2009) (citation and punctuation omitted); see also 2Á Norman J. Singer, Statutes and Statutory Construction § 46:06 (6th ed. 2000) (“It is an elementary rule of construction that effect must be given, if possible, to every word, clause and sentence of a statute.”).

        Higdon v. City of Senoia, 273 Ga. 83, 86 (3) (538 SE2d 39) (2000) (citation omitted); see also Singer, supra note 10, § 46:05 (noting that “statutes must be construed to further the intent of the legislature as evidenced by the entire statutory scheme” (emphasis supplied)); id. § 46:07 (“The legislature is presumed to have intended to avoid surplusage in the words and sentences and therefore it is permissible to interpret the statute to avoid such a pitfall.”).

        See Harris v. State, 286 Ga. 245, 251 (5) (686 SE2d 777) (2009) (applying principles of statutory construction to Title 16’s various definitions of “motor vehicle”). This observation is further bolstered by the fact that prior to its amendment, the public-indecency statute applied OCGA § 16-1-3 (15)’s general definition of “public place,” which left the question to the jury. See, e.g., Collins, 191 Ga. App. at 289 (1); Greene, 191 Ga. App. at 149-50; Clark, 169 Ga. App. at 536 (3); Rushing v. State, 133 Ga. App. 434, 435 (1) (211 SE2d 389) (1974) (“Cases construing factual situations based on former statutes have no application, nor do those applying the common law rules or definition of a public place, for here we must apply the definition given us by statute. Thus, a question of fact was presented for resolution by the jury.” (punctuation omitted)).

        See Harris, 286 Ga. at 251 (5) (“[The viewj that the [phrase] already meant what the General Assembly later used many words to define would render those many words mere surplusage, in violation of [a] fundamental canon of statutory construction.” (citation omitted)); Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 22 (Princeton Univ. Press 1997) (“The text is the law, and it is the text that must be observed.”).

        See Gamble v. State, 113 Ga. 701, 703-04 (39 SE 301) (1901) (engaging in analysis of what constitutes a public place and reversing conviction because essential element of crime was missing, i.e., a private dance “was not shown to be so open to the general publicl,] or to any portion of the public!,] as to constitute it a public place within the meaning of the law of affrays”).


text:
    A11A0581.
    TREND STITCHERS, LLC v. WHEELER.
    (713 SE2d 720)
   Dillard, Judge.

After the trial court granted summary judgment in its favor, appellant Trend Stitchers, LLC filed a timely motion for attorney fees under OCGA § 9-15-14, which was ultimately returned by the clerk of court due to the nonpayment of a “post-judgment motion” filing fee. Thereafter, Trend Stitchers filed a motion for fees to be filed nunc pro tunc under OCGA § 9-11-60 (g), which the trial court denied. Trend Stitchers appeals this decision, arguing that a timely filed motion under OCGA § 9-15-14 is a continuation of an existing case, which does not require a new filing fee. For the reasons noted infra, we reverse the trial court’s order and remand this case for further proceedings consistent with this opinion.

The underlying facts of this appeal are not in dispute. In April 2009, appellee Runta Wheeler filed a complaint against appellant Trend Stitchers, alleging that she was injured when she stepped in a puddle of water and fell as she entered a convenience store operated by Trend Stitchers. Trend Stitchers filed a timely answer denying all liability, and then moved for summary judgment on Wheeler’s claims, which the trial court granted. In so holding, the trial court noted that “this action comes close to meeting the criterion of OCGA § 9-15-14 (a) and so much of OCGA § 9-15-14 (b) as [it] refers to an action’s ‘lack(ing) substantial justification’ . . .

Thereafter, Trend Stitchers filed a timely motion for attorney fees under OCGA § 9-15-14, which was ultimately (and inexplicably) returned to Trend Stitchers’s counsel along with a copy of the court’s updated fee schedule. After inquiring into the matter and learning that its OCGA § 9-15-14 motion for attorney fees had in fact been rejected for failure to pay a “post-judgment” filing fee, Trend Stitchers promptly filed a motion, pursuant to OCGA § 9-11-60 (g), for fees to be filed nunc pro tunc, which the trial court denied. The clerk of court then assessed a fee for Trend Stitchers’s motion for attorney fees, which Trend Stitchers paid. This appeal follows.

Trend Stitchers argues that the trial court erred in concluding that a motion for attorney fees filed under OCGA § 9-15-14 within the statutorily prescribed 45-day time period, but more than 30 days after the entry of judgment, is a post-judgment motion that is subject to being assessed a “new case fee.” We agree.

OCGA § 9-15-14 (e) provides that “[a]ttorney’s fees and expenses under this Code section may be requested by motion at any time during the course of the action but not later than 45 days after the final disposition of the action,” This statutory language makes clear that a request for attorney fees under OCGA § 9-15-14 is part of the original “course of the action” and is not to be considered a “new case” for purposes of OCGA § 15-6-77 (e) (l). And we have previously explained the unique nature and posture of a request for attorney fees under OCGA § 9-15-14, noting that “[w]hile the dismissal of a lawsuit generally deprives the trial court of jurisdiction to take further action in the case, that rule does not apply to OCGA § 9-15-14 motions” because “[t]he 45-day period provide(s) a statutory exception to post-judgment jurisdiction as a limited ‘window of opportunity’ to seek such sanctions.” Accordingly, a motion made under OCGA § 9-15-14 is not subject to a “new case” filing fee, but is instead covered by the original case-initiation fee.

Decided July 6, 2011.

Albert A. Chapar, Jr., Rebecca E. Strickland, for appellant.

Lipman & Drew, Robert B. Lipman, Jay L. Drew, for appellee.

We therefore reverse the trial court’s order and remand this case for further proceedings consistent with this opinion.

Judgment reversed and case remanded with direction.

Smith, P. J., and Mikell, J., concur.

       OCGA § 9-11-60 (g) provides that “[cllerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.”

       Orders entered upon motions to correct a clerical error pursuant to OCGA § 9-11-60 (g) are directly appealable. See, e.g., Leventhal v. Moseley, 264 Ga. 891, 892 (453 SE2d 455) (1995).

       (Emphasis supplied.)

       OCGA § 15-6-77 (e) (1) provides, inter alia, that “[a]ny postjudgment proceeding filed more than 30 days after judgment or dismissal in an action shall be considered as a new case for the purposes of this Code section.”

        Harris v. Werner, 278 Ga. App. 166, 167 (628 SE2d 230) (2006) (citations and punctuation omitted; emphasis supplied); see also Condon v. Vickery, 270 Ga. App. 322, 326 (3) (a) (606 SE2d 336) (2004) (holding that a motion for attorney fees under OCGA § 9-15-14 may not be elevated to that of a separate cause of action). Compare OCGA § 51-7-81 (providing statutory mechanism for seeking damages for abusive litigation vis-á-vis a separate and distinct civil action).


author: Adams, Judge.

text:
    A11A0595.
    SPANN v. THE STATE.
    (713 SE2d 722)
   Adams, Judge.

Teresa Jean Spann was convicted following a bench trial of driving under the influence. She appeals, contending that the trial court erred by not allowing the issuance of an out-of-state subpoena pursuant to OCGA § 24-10-90 et seq., The Uniform Act to Secure the Attendance of Witnesses from Without the State (Uniform Act), and by admitting evidence of a prior similar offense.

1. In her first enumeration of error, Spann challenges the trial court’s denial of her motion for issuance of an out-of-state subpoena to the CEO of CMI, Inc., the Kentucky corporation that manufactures the Intoxilyzer 5000 so that she could obtain the source code for that machine. The record shows that the trial court originally granted Spann’s request for the issuance of the out-of-state subpoena, based on a finding that production of the code was both necessary and material for Spann to challenge the accuracy of the results of the State-administered breath test. However, citing this Court’s decisions in Davenport v. State, 303 Ga. App. 401 (693 SE2d 510) (2010), and Yeary v. State, 302 Ga. App. 535 (690 SE2d 901) (2010), the trial court subsequently vacated that order and denied Spann’s motion for issuance of the out-of-state subpoena, finding that Spann had failed to show that either the witness or the source code was necessary and material to the case.

Decided July 6, 2011.

Head, Thomas, Webb & Willis, William C. Head, for appellant.

Brian K. Fortner, Solicitor-General, Evelyn Proctor, Assistant Solicitor-General, Deah B. Warren, for appellee.

The Supreme Court, however, recently vacated our opinions in Davenport and Yeary, finding, inter alia, that both trial courts and this Court have employed an improper standard in cases involving requests for issuance of an out-of-state subpoena by requiring a party to show that the out-of-state witness is both “necessary and material.” Instead, that Court held that pursuant to OCGA § 24-10-94 (a), the trial court should make the initial finding concerning whether the witness is “material” and “whether the state in which [that] witness is located has laws ‘for commanding persons within its borders to attend and testify in criminal prosecutions ... in this state[.]’ ” Davenport v. State, 289 Ga. 399, 401 (711 SE2d 699) (2011). If the trial court finds those criteria are met, “the Georgia trial judge ‘may issue a certificate under . . . seal’ that is then presented to a judge of a court of record in the out-of-state county in which the witness is found.” Id. at 401. The judge of the out-of-state court may then hold a hearing to make certain findings, including whether the out-of-state witness is “material and necessary to the Georgia criminal proceedings^]” and based on these findings, will then determine whether to issue a summons directing the witness to attend and testify in the Georgia proceedings. Id.

In light of the foregoing, we must remand the case to the trial court for reconsideration of its order denying Spann’s motion for the issuance of the out-of-state subpoena. If the court below determines that the witness for whom a certificate was requested is a “material” witness, it then must consider whether it ought to have issued a certificate in this case, and if so, whether Spann is entitled to a new trial or a new trial conditioned on the issuance by the appropriate out-of-state court of a subpoena to compel the appearance of the witness in Georgia. If the court below determines that no new trial is warranted, the judgment of conviction will stand affirmed, provided that Spann may file a timely appeal from that determination.

2. However, we find Spann’s argument that the trial court erred by admitting similar transaction evidence because this evidence “as applied to these facts, violated [her] rights granted under the United States Constitution,” to be unavailing. (Emphasis in original.) See also Wade v. State, 295 Ga. App. 45 (670 SE2d 864) (2008).

Judgment affirmed on condition and remanded with direction.

Barnes, P. J., and Blackwell, J., concur.

       Following the denial of certain motions filed by Spann, she stipulated to the facts shown at the previous motions hearing.


text:
    A11A0670.
    GRIZZLE v. THE STATE.
    (713 SE2d 701)
   Dillard, Judge.

Following trial, a jury convicted James Grizzle on one count each of possession of methamphetamine with intent to distribute, possession of MDMA (“ecstasy”), possession of a firearm during the commission of a felony, misdemeanor and felony fleeing or attempting to elude a police officer, and numerous traffic offenses. Grizzle appeals the denial of his motion to suppress evidence and the resulting convictions, arguing that the trial court erred in (1) finding that the impoundment and subsequent inventory search of his motorcycle was reasonably necessary; and (2) ruling that the opening of a bag, which was found during the vehicle inventory search, was lawful. For the reasons noted infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that in the early evening hours of June 21, 2008, several Georgia State Patrol officers set up a roadblock on State Highway 52 in Hall County to check motorists for compliance with licensing, insurance, registration, seat belt, and DUI laws. A short time after the officers began checking vehicles, a motorcyclist (later identified as James Grizzle) slowly approached the roadblock but then sped through, ignoring the officers’ orders to stop. A high-speed chase ensued, and then ended a few minutes later when the officers forced Grizzle’s motorcycle off the road and into a ditch. Immediately, the officers arrested Grizzle, who was amazingly uninjured, and, after finding over $4,000 in his pocket, placed him in the back seat of a patrol vehicle.

Subsequently, the officers ran a computer check on Grizzle’s license and determined that it was expired. At that time, the officers also determined that Grizzle’s motorcycle was uninsured and that its displayed license tag was registered to a different vehicle. Based on this information, the officers decided that they could not allow anyone else to drive Grizzle’s motorcycle, and that they would need to call a wrecker service to have the vehicle impounded. After calling the wrecker service, one of the officers conducted an inventory search of the motorcycle pursuant to Georgia State Patrol policy, which entailed listing in detail any items of value found in the vehicle. During that search, the officer found a zippered, red bag in the storage compartment under the motorcycle’s seat, which contained two bags of methamphetamine, a bag of MDMA (ecstasy), and a loaded pistol.

Thereafter, Grizzle was indicted on one count each of possession of methamphetamine with intent to distribute, possession of MDMA, possession of a firearm during the commission of a felony, misdemeanor and felony fleeing or attempting to elude a police officer, failure to provide proof of insurance, possessing an invalid driver’s license, affixing a license plate for purpose of concealing the identity of a vehicle, and several other traffic offenses. Prior to trial, Grizzle filed a motion to suppress the evidence found as a result of the inventory search of his motorcycle. The trial court held a hearing on the issue (during which only the officers involved testified), and ultimately denied the motion. Grizzle was then tried before a jury and found guilty on all counts of the indictment. Grizzle filed a motion for new trial, which the trial court denied. This appeal follows.

At the outset, we note that “[w]hen reviewing a trial court’s decision on a motion to suppress, this Court’s responsibility is to ensure that there was a substantial basis for the decision.” In doing so, we are guided by the following principles: (1) the trial judge sits as the trier of fact on a motion to suppress, and his findings should not be disturbed if there is any evidence to support them; (2) the trial court’s decision as to questions of fact and credibility “must be accepted unless clearly erroneous”; and (3) we must “construe the evidence most favorably to the upholding of the trial court’s findings and judgment.” Nevertheless, when “the evidence is uncontro-verted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” With these guiding principles in mind, we will now address Grizzle’s enumerations of error in turn.

1. Grizzle first contends that the trial court erred in denying his motion to suppress evidence, arguing that the impoundment and subsequent inventory search of his motorcycle were not reasonably necessary. We disagree.

It is well established that “[clases supporting the State’s right to impound a vehicle incident to the arrest of a person in control of it are founded on a doctrine of necessity.” Under that doctrine, “[w]hile the police may not impound a car to search for contraband, they may impound a vehicle if they must take charge of it for some reason.” And ultimately, the “test for the validity of the police’s conduct is whether, under the circumstances then confronting the police, their conduct was reasonable within the meaning of the Fourth Amendment.” More specifically, the test “is whether the impoundment was reasonably necessary under the circumstances, not whether it was absolutely necessary.” Furthermore, subsequent to a reasonable impoundment, “[t]he contents of an impounded vehicle are routinely inventoried to protect the property of the owner, protect the officers against claims for lost or stolen property, and protect the police from potential danger.” Finally, inventories conducted by the police pursuant to standard police procedures are deemed to be reasonable under the Fourth Amendment.

In the case sub judice, the trial court did not err in finding that the officers’ conduct in impounding Grizzle’s motorcycle was reasonably necessary. Following the high-speed chase, Grizzle was arrested for attempting to elude police and for several traffic offenses, including driving with an expired license, and therefore, at that time, he was not going to be allowed to drive his motorcycle under any circumstances. And even if Grizzle had requested that officers allow someone of his choosing to take possession of his motorcycle, such a request could not be honored because his motorcycle was uninsured and displayed a license tag that was actually registered to a different vehicle. Thus, the motorcycle could not be lawfully driven by anyone. Accordingly, the trial court’s finding that the impoundment of Grizzle’s motorcycle was reasonably necessary under the circumstances is supported by the evidence and will not be disturbed on appeal.

2. Grizzle further contends that the trial court erred in finding that the officer’s opening of the zippered, red bag, which was found during the inventory search of his motorcycle, was lawful. Again, we disagree.

The United States Supreme Court has held that “an inventory search may be ‘reasonable’ under the Fourth Amendment even though it is not conducted pursuant to a warrant based upon probable cause.” In this respect, “an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence,” but instead “[t]he policy or practice governing inventory searches should be designed to produce an inventory.” Pursuant to these principles, and as previously noted supra, “[t]he first purpose of an inventory search is the protection of the owner’s property while it remains in police custody” and “[t]he second purpose ... is the protection of the police against claims or disputes over lost or stolen property.” And in State v. Evans, this Court recognized that taking an inventory of the contents in a closed container in the trunk of a vehicle serves both of these purposes.

Here, one of the officers involved in Grizzle’s arrest testified during the hearing on the motion to suppress that Georgia State Patrol policy requires vehicle inventories that include listing all items of value found in the vehicle. Additionally, the officer who conducted the inventory of Grizzle’s motorcycle specifically testified that he did so pursuant to State Patrol policy and, in doing so, completed a standard inventory form that required listing all items of value found in the vehicle. Indeed, that officer testified that the purpose of conducting such inventories is to protect the department from claims of theft, explaining that “everything will be listed on there that was in that vehicle at the time” in case the owner later claims that something was taken. Based on this testimony, there is evidence to support the trial court’s finding that the officers’ search of the zippered, red bag was conducted pursuant to State Patrol procedures, which required that all items of value be listed and, thus, did not exceed the permissible scope of the inventory search of Grizzle’s motorcycle. Moreover “there was no showing that the police, who were following standardized procedures, acted in bad faith or for the sole purpose of investigation.” Accordingly, the trial court did not err in denying Grizzle’s motion to suppress.

Decided July 6, 2011

Charles E. W. Barrow, for appellant.

Lee Darragh, District Attorney, Wanda L. Vance, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

        See, e.g., Goolsby v. State, 299 Ga. App. 330, 330-31 (682 SE2d 671) (2009); see also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       OCGA § 16-13-30 (b).

       OCGA § 16-13-30 (a).

       OCGA § 16-11-106 (b).

       OCGA § 40-6-395 (a), (b) (1), (5) (A) (i).

       OCGA § 40-6-10 (b).

       OCGA § 40-5-20 (a).

       OCGA § 40-2-7.

        Dover v. State, 307 Ga. App. 126, 127 (1) (704 SE2d 235) (2010) (punctuation and footnote omitted).

        Polizzotto v. State, 248 Ga. App. 814, 816 (1) (547 SE2d 390) (2001) (citation and punctuation omitted). This Court may also consider testimony adduced at trial in addition to the testimony submitted during the motion to suppress hearing. See Postell v. State, 279 Ga. App. 275, 276 (1) (630 SE2d 867) (2006).

        Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

        Dover, 307 Ga. App. at 128 (1) (a) (punctuation and footnote omitted).

        Lewis v. State, 294 Ga. App. 607, 611 (2) (669 SE2d 558) (2008) (citation and punctuation omitted).

        Id. (citation, punctuation and footnote omitted).

        Carlisle v. State, 278 Ga. App. 528, 530 (629 SE2d 512) (2006) (footnote omitted).

        Wright v. State, 276 Ga. 454, 460 (5) (579 SE2d 214) (2003) (citation and punctuation omitted); see South Dakota v. Opperman, 428 U. S. 364, 369 (2) (96 SC 3092, 49 LE2d 1000) (1976).

        See Opperman, 428 U. S. at 372 (3).

        See Bell v. State, 302 Ga. App. 519, 520-21 (691 SE2d 573) (2010) (holding that impoundment was reasonable, despite defendant’s request that friend be allowed to pick up vehicle, because vehicle had an expired tag and could not be lawfully driven); Stringer v. State, 285 Ga. App. 599, 602 (1) (647 SE2d 310) (2007) (impoundment was reasonable when truck could not lawfully be driven because defendant could not produce proof of insurance); Garner v. State, 154 Ga. App. 839, 841 (1) (269 SE2d 912) (1980) (impoundment reasonable when accused was arrested for, inter alia, an expired tag and driving without a license); see also OCGA § 40-2-8 (b) (1) (providing that “[a]ny vehicle operated in the State of Georgia which is required to be registered and which does not have attached to the rear thereof a numbered license plate and current revalidation decal. . . shall be stored at the owner’s risk and expense by any law enforcement officer of the State of Georgia”).

        Colorado v. Bertine, 479 U. S. 367, 371 (107 SC 738, 93 LE2d 739) (1987).

        Florida v. Wells, 495 U. S. 1, 4 (110 SC 1632, 109 LE2d 1) (1990).

        Lopez v. State, 286 Ga. App. 873, 877 (3) (650 SE2d 430) (2007) (punctuation and footnote omitted); see Opperman, 428 U. S. at 369 (2).

       181 Ga. App. 422, 424 (2) (352 SE2d 599) (1986).

        See Bertine, 479 U. S. at 374 (holding that opening of backpack found in vehicle’s back seat did not exceed the scope of reasonable police procedure related to inventory search that included opening closed containers); Lopez, 286 Ga. App. at 877 (3) (holding that opening of closed container in trunk of vehicle served purpose of inventory search); Taylor v. State, 228 Ga. App. 325, 326-27 (1) (a) (491 SE2d 417) (1997) (holding that trooper’s testimony that locked briefcase would have been opened to inventory its contents was evidence of reasonable inventory search); Evans, 181 Ga. App. at 424 (2) (same). Compare Wells, 495 U. S. at 4-5 (holding that inventory search violated Fourth Amendment because there was no evidence that officers had any policy regarding search of closed containers).

         Bertine, 479 U. S. at 372.


text:
    A11A0688.
    SUBSEQUENT INJURY TRUST FUND, STATE OF GEORGIA v. CITY OF ATLANTA et al.
    (713 SE2d 706)
   Miller, Presiding Judge.

In this case of first impression, we granted the Subsequent Injury Trust Fund’s (the “Fund”) application for discretionary review to determine whether an employer’s advance payment to an employee under OCGA § 34-9-222 constitutes the payment of an income benefit for purposes of calculating the 78-week time limitation for filing a claim for reimbursement under OCGA § 34-9-362 (a). The superior court found that the claim for reimbursement filed by Employer/Seif-Insurer City of Atlanta and its servicing agent, NovaPro Risk Solutions (collectively, the “City”) was proper and not time-barred, and, in doing so, reversed the award of the State Board of Workers’ Compensation (the “Board”) which held that the City’s claim was time-barred. The Board reasoned that “only 59 weeks of income benefits had been paid as of October 15, 2002 when the [City’s] claim was filed.”

The Fund appeals, asserting that it was required to deny the City’s claim as untimely, since the City’s advance payment to the employee, in addition to temporary total disability (“TTD”) income benefits being paid, equated to more than 78 weeks of paid income benefits, triggering its 78-week claims limitation. We conclude that a lump sum payment of future income benefits to prevent extreme hardship is not subject to conversion into weekly income benefits paid to compensate for lost income in calculating the expiration of the foregoing limitation on claims. Accordingly, we affirm.

In the absence of legal error, the factual findings of the Board must be affirmed by the superior court and by the Court of Appeals when supported by any evidence in the administrative record. Erroneous applications of law to undisputed facts[, as here], as well as decisions based on erroneous theories of law, however, are subject to the de novo standard of review.

(Citation and punctuation omitted.) Strickland v. Crossmark, Inc., 298 Ga. App. 568, 569 (680 SE2d 606) (2009).

The relevant facts are undisputed. On April 5, 2001, Ollie Thornton sustained a compensable work injury while employed by the City. He initially received his salary in lieu of workers’ compensation benefits, but on September 2, 2001, he began receiving workers’ compensation TTD income benefits. On May 30, 2002, the Board issued an order finding that an advance of $12,000 was in “[Thornton’s] best interest to prevent extreme hardship.” On June 21, 2002, the City paid Thornton $12,000 pursuant to such order. The Board’s order provided that the advance was to be credited against the City’s liability to pay the employee permanent partial disability (“PPD”) income benefits in the future. On October 15, 2002, after having been paid TTD benefits for 59 weeks, the City notified the Fund of a potential claim for reimbursement.

The City settled Thornton’s workers’ compensation case, and then requested reimbursement from the Fund. The Fund, citing OCGA § 34-9-362, denied reimbursement on the ground that the City’s October 2002 notice of claim was untimely. The City filed a request for a hearing before the Board to challenge the denial of such request. Following the requested hearing, the administrative law judge (“ALJ”) ruled in favor of the Fund, finding that the claim was time-barred, as a matter of law, under OCGA § 34-9-362 (a). The ALJ’s decision was adopted as the award of the Board, and, on further appeal to the superior court, the decision in favor of the Fund was reversed. The instant appeal followed.

The Fund maintains that the $12,000 advance paid to Thornton must be considered a payment of income benefits to him for purposes of calculating the running of its 78-week claims limitation. The Fund contends that the superior court erred in finding that the City’s payment of the advance at issue pursuant to OCGA § 34-9-222 did not constitute the payment of income benefits for purposes of calculating the time limitation at issue because Georgia law does not allow an employee to receive PPD benefits contemporaneously with the payment of TTD or TPD benefits. See OCGA § 34-9-263 (b) (2), citing OCGA §§ 34-9-261 and 34-9-262, respectively; Universal Ceramics v. Watson, 177 Ga. App. 345, 348 (3) (339 SE2d 304) (1985). We are not persuaded.

OCGA § 34-9-222 (b) provides that the Board may order “the employer to make advance payments of a part of. . . future income benefits by payment of a lump sum equal to such part of future payments.” Such an award, in addition to other income benefits being received, is authorized to “prevent extreme hardship or [as] essential to the rehabilitation of the claimant. ...” OCGA § 34-9-222 (a); see also Edgeman v. Organic Chemical Corp., 173 Ga. App. 4, 6 (3) (325 SE2d 400) (1984) (holding that despite the fact that the employee was receiving TTD income benefits, OCGA § 34-9-222 allows for the advance of a lump sum payment credited against any future income benefit due, including PPD income benefits, where the employee faced extreme hardship arising out of a deteriorating financial condition). While the advance at issue is plainly one of PPD income benefits (id.), the record shows that the Board ordered the advance upon crediting it against the City’s liability for such benefits due in the future and as in “[Thornton’s] best interest to prevent extreme hardship.” The advance, therefore, was not ordered to further compensate Thornton for present lost wages as would have been the case had the advance not been ordered pursuant to the Board’s broad authority to provide extraordinary relief under OCGA § 34-9-222. See Mickens v. Western Probation Detention Center, 244 Ga. App. 268, 269 (1) (534 SE2d 927) (2000) (OCGA §§ 34-9-261 and 34-9-262 compensate for lost wages). Consequently, we conclude (i) that the advance, as ordered, was authorized (see Edgeman, supra, 173 Ga. App. at 6 (3)), and (ii) that Georgia law prohibiting an employee’s receipt of PPD income benefits contemporaneously with the payment of TTD or TPD income benefits, as above, was not violated.

Decided July 6, 2011

Thurbert E. Baker, Attorney General, Harrison & Llop, Rita J. Llop, for appellant.

Swift, Currie, McGhee & Hiers, Timothy C. Lemke, Ashley D. Alfonso, for appellee.

Given the foregoing, we further conclude that an advance of future income benefits paid to foreclose extreme hardship, rather than to compensate for present lost wages, as here, is not subject to conversion to the equivalent of weekly income benefits paid within the meaning of the 78-week limitation on the receipt of income benefits as set out in OCGA § 34-9-362 (a). The Workers’ Compensation Act was enacted to serve a humane purpose. See Schwartz v. Greenbaum, 236 Ga. 476, 477 (1) (224 SE2d 38) (1976). To interpret the Act otherwise as to the Board’s power to make advance payments of future income benefits to provide relief in extraordinary circumstances would ill serve that high purpose. And in circumstances of Board-ordered advance payments made late in the 78-week limitation period, such an interpretation would operate to deny most employers, so situated, reimbursement of lump sums advanced in good faith under OCGA § 34-9-222. This we decline to do.

Accordingly, the City’s claim for reimbursement is timely, and reversal of the Board’s order is required. Consequently, the City is entitled to consideration of its claim for reimbursement, as appropriate.

Judgment affirmed.

Ellington, C. J., and Doyle, J., concur.

       The Fund reimburses employers who hire employees with pre-existing disabilities “when an injury to a disabled worker merges with a pre-existing permanent impairment to cause a greater disability than would have resulted from the subsequent injury alone.” OCGA § 34-9-350.

       OCGA § 34-9-362 (a) requires that “[a]n employer or insurer shall notify the administrator of the [F]und of any possible claim against the [FJund as soon as practicable, but in no event later than 78 calendar weeks following the injury or the payment of an amount equivalent to 78 weeks of income or death benefits, whichever occurs last.”

       Under the Workers’ Compensation Act, an injured employee may receive TTD benefits for up to 400 weeks while totally disabled from employment as a result of a non-catastrophic work injury. See OCGA § 34-9-261. If the employee returns to work at reduced pay because of the injury, he may be entitled to temporary partial disability benefits (TPD). See OCGA § 34-9-262. PPD benefits may only be paid after the employee is no longer entitled to receive TTD or TPD benefits. OCGA § 34-9-263 (b) (2).