author: Miller, Judge.

text:
    A12A0426.
    IN THE INTEREST OF J. D., a child.
    (728 SE2d 698)
   Miller, Judge.

Sherwanda Stallworth, the mother of J. D., appeals from the order of the juvenile court finding her in contempt for wilful violation of two juvenile court orders and sentencing her to a total of forty days for both acts of contempt. Specifically, Stallworth contends that (1) the juvenile court erred in failing to designate the convictions for contempt as either criminal or civil; (2) her second conviction for contempt was in error because her action did not constitute an additional contempt of court, and because the juvenile court’s findings of fact were contrary to the weight of the evidence; and (3) her second conviction for contempt was in error because she was issued an unenforceable subpoena. For the following reasons, we affirm the juvenile court’s findings of contempt.

“The question of whether a contempt has occurred is for the trial court, and its determination will be overturned only if there has been a gross abuse of discretion.” (Citation omitted.) In re Hughes, 299 Ga. App. 66, 67-68 (2) (681 SE2d 745) (2009).

The evidence shows that in 2010, J. D. was placed on probation by order of the juvenile court. In December 2010, the juvenile court put Stallworth under a protective order that required her to do the following things in furtherance of her son’s delinquency probation:

1. ensure that she keep her home in a clean, appropriate manner;
2. cooperate in good faith with the juvenile court, case workers, or any other agency entrusted by the juvenile court;
3. refrain from acts that might make the child’s home an inappropriate place for her children;
4. ensure that the child attends school;
5. participate with the child in any counseling or treatment deemed necessary;
6. attend all appointments with the juvenile court and ensure that the child has transportation to all appointments.

On June 17,2011, a contempt hearing was scheduled in regard to J. D.’s failure to comply with certain terms of his probation. Stall-worth admitted that she had received a subpoena to appear at J. D.’s contempt hearing. Although J. D. appeared, Stallworth did not. The juvenile court sent deputies to Stallworth’s home in an attempt to locate her. As Stallworth was unable to be located, the juvenile court indicated that it would conduct a show cause hearing where Stall-worth would have an opportunity to explain why she should not be held in contempt of court. Following the June 17, 2011, hearing, the State filed a motion for wilful contempt against Stallworth for her failure to appear. The State subsequently filed an amended motion for contempt against Stallworth for her wilful failure to comply with the terms of the trial court’s prior protective order — specifically, that she failed to cooperate in good faith with the juvenile court, caseworkers, or other agency entrusted by the juvenile court, and that she failed to participate with J. D. in any counseling or treatment deemed necessary.

The juvenile court considered these two motions as a single contempt of court charge at a hearing on July 28, 2011. Although Stallworth admitted to the contempt charge, she also testified that she had not been able to attend the June 17, 2011, hearing because she was in the hospital for chest pains. Later during the hearing, however, she provided conflicting testimony regarding her whereabouts on June 17, 2011, indicating on one hand that she had been at a friend’s house to get a ride to the doctor, and on the other hand, that she was actually at home and did not have transportation where she lived. Stallworth’s counsel nevertheless advised the juvenile court that Stallworth had proof of her time in the hospital, but had failed to bring the paperwork with her to court. The juvenile court granted a continuance of several hours and ordered Stallworth, both verbally and by subpoena, to return to court at 4:30 p.m. that day. The juvenile court stated on the record that if Stallworth was not back by 4:30 p.m., she would serve 20 days for the first contempt charge — based upon her failure to appear at the June 17, 2011, hearing and her failure to comply with the protective order regrading J. D.’s probation — and another 20 days for failing to appear at 4:30 p.m. on July 28, 2011. When court reconvened at 4:30 p.m., Stallworth failed to appear. The juvenile court postponed the disposition of the first contempt charge and indicated that there would be another show cause hearing as to why Stallworth should not be held in contempt for failing to appear at 4:30 p.m. on July 28, 2011. The State subsequently filed a motion for contempt against Stallworth for her failure to appear at 4:30 p.m. on July 28, 2011. Both the first and second contempt charges were continued until August 22, 2011.

At the August 22, 2011, hearing, Stallworth again admitted to the first contempt of court charge, but denied wilful contempt in the second charge. She indicated that she had been unable to secure transportation to return to court by 4:30 p.m. The juvenile court found her in wilful contempt on both charges and sentenced her to 20 days for each conviction; the juvenile court further provided, however, that after Stallworth’s service of the first 20 days in detention, the balance would be suspended upon Stallworth’s compliance with the terms and conditions of the protective order. Stallworth was taken from the courtroom immediately to begin her sentence. She timely filed her notice of appeal to challenge the juvenile court’s contempt order.

1. Stallworth argues that the juvenile court erred in failing to designate the convictions for contempt as either criminal or civil. We discern no reversible error.

“Once an act has been determined to constitute contempt of court, the action the court takes to deal with the contempt determines whether the contempt is deemed ‘criminal’ contempt or ‘civil’ contempt, a distinction historically made by both appellate courts in this state.” (Citation and punctuation omitted.) Rhone v. Bolden, 270 Ga. App. 712, 714 (2) (608 SE2d 22) (2004). “The distinction between criminal and civil contempt is that criminal contempt imposes unconditional punishment for prior acts of contumacy, whereas civil contempt imposes conditional punishment as a means of coercing future compliance with a prior court order.” (Citation omitted.) Cabiness v. Lambros, 303 Ga. App. 253, 255 (1) (692 SE2d 817) (2010). Thus, where a trial court does not specify whether a contemnor is in civil or criminal contempt, this Court must examine the purpose of the contempt order to make such determination. See, e.g., Phillips v. Tittle, 261 Ga. 820 (411 SE2d 871) (1992); Thedieck v. Thedieck, 220 Ga. App. 764, 765-766 (1) (470 SE2d 265) (1996).

[T]he conditional or unconditional imposition of a fine or imprisonment indicates the purpose of an order. If the contemnor is imprisoned for a specified unconditional period (hot to exceed 20 days under OCGA § 15-6-8 (5)[]), the purpose is punishment and thus the contempt is criminal. If the contemnor is imprisoned only until he performs a specified act, the purpose is remedial and hence the contempt is civil.

(Citations and punctuation omitted.) Thedieck, supra, 220 Ga. App. at 766 (1); see also In re Earle, 248 Ga. App. 355, 358 (1) (b) (545 SE2d 405) (2001) (“When the trial court orders incarceration for an indefinite period until the performance of a specified act, the contempt is civil.”) (citations and punctuation omitted).

Here, although the juvenile court did not specify whether it found Stallworth in civil or criminal contempt, the purpose of the contempt order was to impose a prison sentence upon Stallworth for her prior acts of contumacy. See Cabiness, supra, 303 Ga. App. at 255 (1). Notably, her sentence for the first contempt charge was for a specified unconditional period of 20 days. Thus, the first contempt was clearly criminal. Stallworth’s sentence for the second contempt charge was also for a specified period of 20 days, but could be suspended upon her compliance with the juvenile court’s protective order. The fact that Stallworth could suspend her sentence, however, did not render this second contempt civil. Significantly, her sentence was not “for an indefinite period” until she in fact complied with the protective order or performed any other specified act. See Earle, supra, 248 Ga. App. at 358 (1) (b). Rather, according to the juvenile court’s order, even if Stallworth failed to comply with the protective order, she was nevertheless to be released after she served a total of 40 days (20 days for each contempt conviction) in prison. Accordingly, the convictions of contempt imposed upon Stallworth were both criminal, and the trial court did not commit reversible error by failing to specify the nature of the contempt.

2. With respect to the second contempt conviction, Stallworth contends that the juvenile court erred because Stallworth’s failure to return to court at 4:30 p.m. on July 28, 2011, went to the first contempt charge and did not constitute an additional contempt of court; and because the juvenile court’s findings of fact were contrary to the weight of the evidence. Stallworth’s contentions are meritless.

Juvenile courts are authorized to punish for contempt for disobedience of an order of the court or for obstructing or interfering with its proceedings. The question of whether a contempt has occurred is for the trial court, and its determination will be overturned only if there has been a gross abuse of discretion.

(Citation omitted.) Hughes, supra, 299 Ga. App. at 67-68 (2). “On appeal of a criminal contempt conviction[,] the appropriate standard of appellate review 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.” (Punctuation and footnote omitted.) In re Waitz, 255 Ga. App. 841, 842 (567 SE2d 87) (2002).

In order to establish criminal contempt for violation of a court order, there must be proof beyond a reasonable doubt not only that the alleged contemnor violated a court order, but also that he did so wilfully. And to show wilfulness, there must be proof beyond a reasonable doubt that the alleged contemnor had the ability to comply with the court order: It is essential to constitute a contempt that the thing ordered to be done be within the power of the person against whom the order is directed.

(Citation omitted.) In re Bowens, 308 Ga. App. 241, 242 (1) (706 SE2d 694) (2011).

Here, during the hearing on the first contempt charge, Stall-worth indicated that she had medical documentation explaining her failure to appear at J. D.’s contempt hearing on June 17, 2011. As a result, the juvenile court granted a continuance of several hours and ordered Stallworth to appear back in court at 4:30 p.m. with such documentation. The juvenile court stated on the record that if Stall-worth was not back by 4:30 p.m., she would serve 20 days for the first contempt charge and another 20 days for failing to appear at 4:30 p.m. on July 28, 2011. Despite the juvenile court’s express order, it is undisputed that Stallworth failed to appear when court reconvened at 4:30 p.m., and Stallworth’s counsel indicated that he had received no contact from Stallworth regarding her whereabouts. Given that Stallworth failed to comply with this additional court order, the juvenile court did not grossly abuse its discretion in finding that Stallworth’s action constituted an additional contempt of court, separate from the first contempt charge based upon Stallworth’s failure to appear at the June 17, 2011, hearing and her failure to comply with the protective order regarding J. D.’s probation.

Not only was there evidence that Stallworth violated this additional court order, but there was also evidence that she did so wilfully. Although Stallworth later testified that the reason she failed to appear at 4:30 p.m. was her inability to secure timely transportation, the juvenile court judge was authorized to reject her testimony as not credible and find that Stallworth had in fact had the ability to comply with the juvenile court’s order to return at 4:30 p.m. “[I]n a contempt hearing before a judge sitting as the trier of fact, the hearing judge, and not the appellate court, determines the credibility of witnesses.” (Citation and punctuation omitted.) Bowens, supra, 308 Ga. App. at 243 (1). Indeed, Stallworth had a history of providing untruthful and inconsistent testimony before the same juvenile court judge. Notably, despite the fact that the July 28, 2011, hearing was specifically continued to 4:30 p.m. in order for Stallworth to retrieve medical documentation that purportedly excused her absence from the June 17,2011, hearing, Stallworth’s counsel later revealed that Stallworth “was mistaken as to the date” and did not in fact have any medical excuse for June 17, 2011.

Thus, the evidence, viewed in the light most favorable to the prosecution, was sufficient to prove that Stallworth wilfully disobeyed the juvenile court’s order to return to court at 4:30 p.m. on July 28, 2011.

3. Stallworth also challenges her second contempt conviction on the grounds that the subpoena was issued to her less than 24 hours prior to the hearing and was thus unenforceable. Again, we discern no reversible error.

It is true that a subpoenaed witness cannot be held in contempt for failure to obey a subpoena that was not served upon the witness at least 24 hours before the hearing as required by OCGA § 24-10-25 (a). See Eubanks v. Brooks, 139 Ga. App. 166, 167 (227 SE2d 923) (1976). Here, the subpoena of which Stallworth complains was served upon her approximately five hours before she was to return to court. However, a witness can waive the 24-hour notice requirement. See id. at 168; see also Adams v. State, 282 Ga. App. 819, 822 (3) (a) (640 SE2d 329) (2006); Stein v. Cherokee Ins. Co., 169 Ga. App. 1,2 (1) (311 SE2d 220) (1983). Under the facts of this case, we conclude that Stallworth waived that requirement. In granting Stallworth a continuance, the juvenile court issued her a verbal order, as well as the written subpoena, requiring her to return to court at 4:30 p.m. or otherwise be held in contempt. At no point before leaving the courtroom, however, did Stallworth object to the timeliness of the subpoena. We further note that the assurance of adequate time for preparation by a witness is the obvious intent of the 24-hour notice requirement. See Stein, supra, 169 Ga. App. at 2 (1). And here, Stallworth had since June 17,2011, to gather any relevant medical documentation to bring with her to her July 28, 2011, contempt hearing. We thus conclude that Stallworth waived any challenge to the subpoena’s timeliness, and the juvenile court did not err in holding Stallworth in contempt.

Judgment affirmed.

Mikell, P. J., and Blackwell, J., concur.

Decided May 18, 2012.

Richard C. Metz, for appellant.

Larry Chisolm, District Attorney, Diane M. McLeod, Assistant District Attorney, for appellee.

       See Reece v. Smith, 292 Ga. App. 875, 877 (1) (665 SE2d 918) (2008) (explaining that a superior court is authorized to sentence a contemnor to 20 days in jail and to fíne him up to $500 for each individual act of criminal contempt) (citing OCGA § 15-6-8 (5)).


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A12A0608.
    HERITAGE CONSTRUCTION CORPORATION et al. v. STATE BANK AND TRUST COMPANY.
    (728 SE2d 703)
   PHIPPS, Presiding Judge.

State Bank and Trust Company filed suit against Heritage Construction Corporation, Burnt Bridge at Settendown Creek, LLC, and Raymond Moss (collectively, “Heritage Construction”), to collect money owed after Heritage Construction defaulted on three loans. State Bank filed a motion for summary judgment, which the trial court granted. Heritage Construction now appeals, contending that the trial court erred in granting State Bank’s motion for summary judgment because State Bank failed to show a complete chain of assignments for the loans in order to have standing to file suit, and therefore, an issue of fact remains whether State Bank is the real party in interest. We find no merit to Heritage Construction’s claim and affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the nonmovant.

So viewed, the evidence shows that Moss signed, on behalf of Burnt Bridge, a promissory note and personal guaranty agreement for a loan. Moss also signed, on behalf of Heritage, promissory notes and personal guaranty agreements for two loans. First National Bank of Forsyth County was the original lender on the three notes. First National, however, became part of The Buckhead Community Bank and The Forsyth Community Bank, and Moss executed new promissory notes and personal guaranty agreements for the loans; the documents showed The Buckhead Community Bank d/b/a The Forsyth Community Bank as the lender, Burnt Bridge and Heritage as the borrowers, and Moss as the guarantor.

The Buckhead Community Bank d/b/a The Forsyth Community Bank closed, and the Federal Deposit Insurance Corporation (FDIC) was appointed receiver for The Buckhead Community Bank. The FDIC, as receiver, then executed a Receiver’s Assignment of Loan Documents, assigning the loans to State Bank, and State Bank filed the instant action to recover the amounts owed on the loans.

Heritage Construction argues that State Bank has not shown a complete chain of assignments because it failed to provide affidavits from the original lenders, First National Bank of Forsyth County or The Buckhead Community Bank. Heritage Construction further argues that aside from the Receiver’s Assignment of Loan Documents, no documentation shows that the Georgia Department of Banking and Finance closed The Buckhead Community Bank or appointed the FDIC as receiver for the assets and liabilities of The Buckhead Community Bank, and thus no privity of contract between State Bank and the original lenders was shown.

To support its position, Heritage Construction cites Wirth v. Cach, LLC and Ponder v. CACV of Colorado for the proposition that a “statement alone” in an affidavit which was submitted to the trial court by a State Bank custodian of records was insufficient evidence to provide standing to bring this action. The statement at issue was that “[State Bank] acquired certain assets [of] The Buckhead Community Bank d/b/a ... First National Bank of Forsyth County and/or First National Bank of Forsyth County from the FDIC, including the Note[s] and Guarantees].”

“A party may assign to another a contractual right to collect payment, including the right to sue to enforce the right. But an assignment must be in writing in order for the contractual right to be enforceable by the assignee.” Notwithstanding, “a party may make admissions in judicio in their pleadings, motions and briefs. What a party admits to be true in its pleadings may not subsequently be denied.”

Here, Moss executed an affidavit in which he stated that the original “banks failed and were taken over by the Federal Deposit Insurance Corporation.” Further, in its brief filed in response to State Bank’s motion for summary judgment, Heritage Construction stated that

Mr. Moss was in the process of modifying the contracts that give rise to this matter with the First National Bank of Forsyth County and The Buckhead Community Bank d/b/a The Forsyth Community Bank . . . [w]hen the banks failed and were taken over by the Federal Deposit Insurance Corporation. . . .

Further, it was Moss who deposed that First National had become part of The Buckhead Community Bank and The Forsyth Community Bank. These factual admissions in judicio made by Heritage Construction in its trial court brief and by Moss in his affidavit and deposition are binding. The FDIC, by its Receiver’s Assignment of Loan Documents, ultimately assigned the loans to State Bank.

Moreover, contrary to Heritage Construction’s claim, the exhibits on which State Bank relied in support of its motion for summary judgment evidenced a complete chain of assignments. This evidence included the promissory notes and personal guaranty agreements that Moss executed before and after First National became part of The Buckhead Community Bank (and The Forsyth Community Bank); the Receiver’s Assignment of Loan Documents, which listed the FDIC as receiver for The Buckhead Community Bank and showed that the FDIC (as receiver for The Buckhead Community Bank) assigned the loans to State Bank; and the affidavit from State Bank’s custodian of record which provided that State Bank acquired from the FDIC the notes and guaranties of The Buckhead Community Bank and/or First National Bank of Forsyth County. “Accordingly, the trial court did not err in finding that there was a valid assignment of the loan[s] to [State Bank].”

The facts in Wirth are distinguishable from this case. In Wirth, the creditor submitted on summary judgment an affidavit which purported to show that the account had been assigned to it, but the affidavit failed to “refer to or attach any written agreements which could complete the chain of assignment” to the creditor who had filed suit, and there was no competent evidence establishing the assignment. The facts of Ponder are also distinguishable. In Ponder, summary judgment for the bank was not authorized because the record was “totally devoid of any evidence supporting” an assignment of a debt. In this case, the affidavit by State Bank’s custodian of records referred to and included a copy of the Receiver’s Assignment of Loan Documents, and the appellate record contained other evidence in support of the motion. Therefore, Heritage Construction’s arguments are without merit, and the trial court’s judgment is affirmed.

Decided May 18, 2012.

Macey, Wilensky, Kessler & Hennings, Hal J. Leitman, for appellant.

Quirk & Quirk, Joseph P. Quirk, Kevin E. Quirk, for appellee.

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

        Hosch v. Colonial Pacific Leasing Corp., 313 Ga. App. 873 (722 SE2d 778) (2012) (citation omitted).

       300 Ga. App. 488 (685 SE2d 433) (2009).

       289 Ga. App. 858 (658 SE2d 469) (2008).

        Hosch, supra at 874 (2) (citation and punctuation omitted).

        Kensington Partners v. Beal Bank Nevada, 311 Ga.App. 196-197 (1) (715SE2d491) (2011) (citations and punctuation omitted).

       Id.

       See id. at 197-198 (1), (2) (affidavit of representative of bank that was assigned loan and other evidence were sufficient to establish that bank had acquired the note and deed for valuable consideration by assignment from the FDIC, as receiver for original failed bank).

       Id. at 197 (1).

       Supra.

        Wirth, supra at 490.

       Supra.

        Ponder, supra at 859-860.


text:
    A12A0626.
    ASHLEY v. THE STATE.
    (728 SE2d 706)
   PHIPPS, Presiding Judge.

Homer Ashley was tried by a jury and convicted of two counts of distribution of dihydrocodeinone, in violation of the Georgia Controlled Substances Act. He appeals, contending that the drugs were improperly admitted into evidence because the chain of custody was not proved, the chemist who analyzed the drugs should not have been qualified as an expert witness, and the evidence was insufficient. For the reasons that follow, we affirm.

The evidence showed that Sergeant Christopher Brewer with the Laurens County Sheriff’s Department met with a confidential informant who had stated that she could purchase narcotics from Ashley. On January21,2010, Sergeant Brewer and Corporal Van Payne, also with the sheriff’s department, met with the informant to attempt to purchase from Ashley dihydrocodeinone, or “what’s commonly referred to as Lortabs.” The informant, whose driver’s license had been suspended, was driven around by another individual. Before sending the informant to purchase the narcotics, Corporal Payne searched the vehicle, and Sergeant Brewer searched the informant and the driver to make sure no drugs or money were present. Sergeant Brewer then provided the informant with $ 140 in official funds, an audio and video recording device, and an audio transmitting device (so that he could listen to conversations as they occurred).

The driver drove the informant to the location where the sale was to take place, and Sergeant Brewer followed. Sergeant Brewer observed Ashley enter the informant’s vehicle and heard the conversation which ensued. The informant testified at trial that she had purchased 20 Lortab pills from Ashley that day. After the transaction, Sergeant Brewer met the informant (and the driver) at a pre-arranged location, and the informant gave Sergeant Brewer pills which later tested positive for dihydrocodeinone. The informant also gave to Sergeant Brewer a piece of mail addressed to Ashley, which the informant had obtained from a bag Ashley carried during the transaction.

On March 10, 2010, Sergeant Brewer met with a different confidential informant who stated that he could purchase narcotics from Ashley. Before the informant was sent to purchase the narcotics, the informant and his vehicle were searched. The informant was then provided with $50 in official funds, an audio and video recording device, and an audio transmitting device. The informant went to the location where the sale was to take place. Sergeant Brewer followed the informant, observed from a distance the informant’s contact with Ashley, and heard their conversation which accompanied the transaction. After the transaction, the informant and his vehicle were searched, and the informant gave Sergeant Brewer pills which later tested positive for dihydrocodeinone. At trial, the informant and Sergeant Brewer identified the pills which the informant had purchased from Ashley that day.

Sergeant Brewer testified that prior to trial, he had reviewed the audio and video recordings of the January and March transactions and they accurately depicted the events that had occurred. The informant from the January transaction described the events as the audio and video recordings were being played for the jury, and the informant from the March transaction verified that the video recording, which was played for the jury, accurately depicted the events that occurred during his transaction with Ashley.

1. Ashley contends that the drugs were improperly admitted into evidence because the state “failed to prove chain of custody . . . because there was no eyewitness testimony concerning what happened to the bags and pills when the pills were allegedly tested the first time before being shipped back to the Sheriffs Office.”

Where the State seeks to introduce evidence of a fungible nature, it must show a chain of custody adequate to preserve the identity of the evidence. The burden is on the State to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. The State need not negative every possibility of tampering, and need only establish reasonable assurance of the identity of the evidence. When there is only a bare speculation of tampering, it is proper to admit the evidence and let what doubt remains go to the weight.

The lack of testimony by a crime lab employee who originally receives drugs does not, in all circumstances, break the chain of custody. “Absent affirmative evidence of tampering, mere speculative doubt as to the handling of evidence while in the possession of the Georgia Crime Lab is a matter for consideration by the jury.”

Here, the evidence showed that the drugs were tested by the Georgia crime lab, returned to the arresting police agency, and then sent back to the crime lab for retesting when the initial chemist who tested the drugs was unavailable to testify as to those results because the chemist was no longer employed by the crime lab. A second chemist retested the drugs prior to trial, and she testified as to the results she obtained. Notably, Ashley does not contend that tampering occurred or may have occurred between the time the drugs were returned to the police agency after initial testing and the time the drugs were sent back to the crime lab for retesting. He specifically argues the possibility that tampering occurred when the initial chemist handled the drugs.

But Ashley presented no evidence of tampering, only mere speculation that because the initial handling of the drugs at the crime lab was unknown, tampering could have occurred. The state met its burden of showing with reasonable certainty that the evidence was the same as that seized and that no tampering or alteration occurred. Accordingly, the trial court did not err in admitting the drugs on this ground.

2. Ashley contends the chemist who analyzed the drugs should not have been qualified as an expert witness due to her lack of experience. Ashley points out that the chemist had been working at the crime lab for only 14 months, did not have a doctorate degree, and had tested fewer lab samples in 14 months than the “average person” at the crime lab had tested in a single year.

An expert witness is anyone who, through training, education, skill, or experience, has peculiar knowledge that the average juror would not possess as to any question of science, skill, trade, or like questions; the expert witness may render an expert opinion within the witness’ area of expertise after the qualifications have been proven to the trial court. It is for the trial court to determine, as a matter of law after hearing evidence, whether a witness is competent by way of qualifications to render an opinion within [her] area of expertise. The requirements for qualification as an expert witness are minimal; generally, nothing more is required to qualify an expert than evidence that the person has been educated in a particular trade, science, or profession. Formal education or training in an area of expertise is not necessary, provided the witness possesses the qualifications of such area of expertise through skill and experience. It is the possession of special knowledge derived either from experience, study, or both in a field of expertise that makes one an expert. Thus, an expert witness can express an opinion on a matter which comes within the person’s qualifications. The possession of a license in Georgia does not go to qualification as an expert witness but may go to the weight and credibility that a jury gives to such expert’s opinion.

The trial court’s ruling on this issue is reviewed only for abuse of discretion.

In this case, the chemist was qualified by education, training, and experience and was properly accepted as an expert in the area of forensic chemistry by the trial court when tendered as an expert witness. The chemist testified that she had earned an associate degree in science, a professional degree in chemistry, and had begun work on a Master’s degree in science education. When asked how much laboratory experience she had, the chemist testified that in obtaining her professional degree she spent “the entire time” in the lab. The Georgia Bureau of Investigation had provided the chemist with 12 months of training, which included lab procedures, during which she tested approximately 800 samples. Prior to this trial, the chemist had been tendered in a drug case as an expert in the area of chemical analysis.

After being accepted as an expert by the trial court, the chemist testified about the procedures and tests she had used to determine the identity of the pills submitted in evidence in this case. The chemist was subjected to cross-examination by Ashley regarding the procedures and tests, and Ashley did not present evidence that the procedures or tests were outside the range of the chemist’s education, training and experience.

Because the evidence showed that the witness possessed the requirements necessary to qualify her as an expert, we find no abuse of discretion.

3. Ashley contends that the evidence was insufficient to support his conviction because the chain of custody of the drugs was not proved, the chemist was not qualified to identify the drugs, and his identity was not proved beyond a reasonable doubt.

When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, “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.” The trier of fact, not this court, resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from basic facts to ultimate facts.

(a) For the reasons stated in Divisions 1 and 2, Ashley’s contentions that the evidence was insufficient because the chain of custody of the drugs was not proved and the chemist was not qualified to identify the drugs are without merit.

(b) Ashley’s further contention, that the evidence was insufficient because his identity was not proved beyond a reasonable doubt, is also without merit. Ashley argues that the state’s case hinged on: the testimony of informants, who had criminal convictions and were admitted drug addicts; a video recording, which did not depict his image; and testimony by a law enforcement officer whose ability to see the transactions was possibly compromised.

Decided May 18, 2012.

William M. Ermine, for appellant.

L. Craig Fraser, District Attorney, Cheryl A. Banks, Assistant District Attorney, for appellee.

As we have held, “the determination of a witness’ credibility, including the accuracy of eyewitness identification, is within the exclusive province of the jury. This Court neither weighs the evidence nor determines witness credibility. The jury resolves any conflicts in the evidence.” We “only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.” Further, “[t]he testimony of a single witness is generally sufficient to establish a fact.” Under these standards, the state adduced evidence sufficient to show identity and to support the jury’s finding of Ashley’s guilt beyond a reasonable doubt of two counts of distribution of dihydrocodeinone, in violation of the Georgia Controlled Substances Act. Therefore, we affirm the convictions.

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

        Hurst v. State, 285 Ga. 294, 296 (2) (676 SE2d 165) (2009) (citations and punctuation omitted).

        Johnson v. State, 271 Ga. 375, 382 (13) (519 SE2d 221) (1999), citing Givens v. State, 214 Ga. App. 774 (2) (449 SE2d 149) (1994).

        Johnson, supra.

       See id.

        In the Interest of C. W. D., 232 Ga. App. 200, 206-207 (3) (a) (501 SE2d 232) (1998) (citations and punctuation omitted).

        Thomas v. State, 290 Ga. 653, 658 (5) (723 SE2d 885) (2012).

       See id.

        Jackson v. Virginia, 443 U. S. 307,319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979) (citation omitted; emphasis in original).

       Id. at 318-319 (III) (B).

       Supra.

        Vasquez v. State, 275 Ga. App. 548, 549 (621 SE2d 764) (2005) (citations and punctuation omitted).

        Culpepper v. State, 302 Ga. App. 370, 373 (2) (690 SE2d 864) (2010) (footnote omitted).

       OCGA§ 24-4-8.

       See Vasquez, supra; Culpepper, supra.


author: Ellington, Chief Judge.

text:
    A12A0560, A12A0602. A12A0561, A12A0603.
    BANK OF NORTH GEORGIA v. WINDERMERE DEVELOPMENT, INC. et al.; and vice versa. BANK OF NORTH GEORGIA v. SIMON ROAD DEVELOPMENT, INC. et al.; and vice versa.
    (728 SE2d 714)
   Ellington, Chief Judge.

Pursuant to granted applications for interlocutory appeal, the Bank of North Georgia (“BNG”), appeals from orders of the State Court of Douglas County which, in two separate but related actions for reimbursement on letters of credit and personal guaranties, denied the bank’s motions for summary judgment. The defendants in those suits, Windermere Development, Inc., Simon Road Development, Inc., and guarantors Robert G. Vansant and Robert C. Belans, Jr., cross-appeal, contending that the trial court erred in denying their cross-motions for summary judgment. Because these appeals involve the same facts and questions of law, we have consolidated them. For the reasons that follow, we affirm the trial court’s orders denying summary judgments to BNG and reverse the court’s orders denying summary judgments to the cross-appellants.

The same standard of review applies to both of these appeals and cross-appeals. Summary judgment is appropriate if the pleadings and the undisputed evidence show that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. OCGA§ 9-11-56 (c). On appeal from the grant or denial of summary judgment, the appellate courts conduct a de novo review, construing all reasonable inferences in the light most favorable to the nonmoving party. Alston & Bird LLP v. Mellon Ventures II, L.P., 307 Ga. App. 640 (706 SE2d 652) (2010). So viewed, the record shows as follows.

Both Simon Road Development, Inc. (“Simon Road”) and Wind-ermere Development, Inc. (“Windermere”) secured loans from Citizens & Merchants State Bank (“Citizens”), BNG’s predecessor-in-interest, to acquire and to develop residential subdivisions in Douglas County near the Windermere Golf Club. The subdivisions are located about three miles from each other. In 2004, Windermere and Wind-ermere Golf Club executed two promissory notes and a deed to secure debt secured by property in Douglas County to develop the Bear Creek Subdivision, which is adjacent to the golf course. The legal description of the secured property, attached to the deed to secure debt as “Exhibit A,” included residential, golf course, and golf club tracts in Land Lots 4, 5, and 32 of the 1st District, 5th Section, and Land Lots 1 and 32 of the 2nd District, 5th Section of Douglas County. In 2006, in order to acquire, to hold, and to develop the Kings Bridge Subdivision, Simon Road executed two promissory notes and a deed to secure debt secured by tracts in Land Lots 75, 86, and 87 of the 1st District, 5th Section of Douglas County.

In February 2007, Windermere Golf Club executed a new deed to secure debt covering the obligations of both Windermere and Simon Road, pledging as additional security for Simon Road the same golf club and course properties that secured, in part, the first note executed by Windermere and Windermere Golf Club in 2004. The 2007 deed to secure debt provided:

That, WHEREAS, Grantor has executed this Deed to secure the obligations of WINDERMERE DEVELOPMENT, INC., SIMON ROAD DEVELOPMENT, INC., and such other entities as Grantor may request from time to time (“Borrowers”), or any of them, in favor of Grantee evidenced by one or more Letters of Credit issued by Grantee in favor of Borrowers, from time to time, together with any extensions or renewals thereof, and replacements therefore [sic] (such Letters of Credit are collectively referred to in this Deed as the “Notes”). All Notes shall mature in terms less than three years from the date of execution, and shall not at any time exceed the aggregate sum of $1,755,000.00.

All of the aforementioned deeds to secure debt contained “open-end” or “dragnet” clauses that expressly provided that

[this] instrument is . . . made and intended to secure the payment of the indebtedness of Grantor to Grantee evidenced by the Note . . . , together with any and all other indebtedness now owing or which may hereafter be owing by Grantor to Grantee, however incurred,... and all renewal or renewals, extension or extensions, and modification or modifications and consolidation or consolidations of the Note or other indebtedness, either in whole or in part[.]

(Emphasis supplied.)

In March 2007, Vansant and Belans executed agreements in which they guaranteed Windermere’s and Simon Road’s payment and performance under the notes and all other indebtedness owed to Citizens. Belans was the president of both Windermere and Simon Road and a member of Windermere Golf Club, LLC. Vansant was a principal investor and secretary in both Windermere and Simon Road and served as the project manager for both subdivisions, handling construction for both projects from the same office.

In July 2007, Simon Road executed an irrevocable letter of credit application and reimbursement agreement, pursuant to which Citizens issued to Simon Road an irrevocable letter of credit in an amount not to exceed $78,750, naming the Douglas County Board of Commissioners (the “Board”) as the beneficiary. Simon Road also obtained from the bank a second letter of credit, also benefitting the Board, in an amount not to exceed $176,250. Both letters of credit served as maintenance bonds for the county’s development of the Kings Bridge subdivision infrastructure. In July 2008, Windermere also obtained two letters of credit from Citizens, for $229,212 and $464,520, respectively. Both of Windermere’s letters of credit were likewise bonds for the county’s development of the infrastructure of the Bear Creek subdivision.

Windermere’s and Simon Road’s reimbursement obligations to the bank pursuant to the letters of credit were secured by the golf course and club properties identified in the 2007 deed to secure debt. Each letter of credit contained identical cross-default provisions, each listing as a default event the borrower’s “failure to make timely payment of any sum required to be paid hereunder, or to perform and fully satisfy any other covenant or obligation of Customer to Lender set forth herein or in the Separate Agreement or any related instrument[.]” Each letter of credit also provided that, upon default, the lender could accelerate the amount due under the reimbursement obligation, as well as “any other agreement between the parties hereto[.]”

In May 2009, Simon Road and Windermere defaulted on their promissory notes, and, on June 2, 2009, BNG executed its power of sale under Simon Road’s 2006 and Windermere’s 2007 security deeds, foreclosing on all of those tracts of land securing the acquisition and development notes as well as the letters of credit. The deeds were delivered and recorded. BNG did not seek judicial confirmation of the foreclosure sales. Although BNG contends it rescinded the foreclosure sale concerning the golf course and club properties, there is no evidence in this record from which a trier of fact may reasonably infer that such had occurred.

In late June 2009, after BNG had foreclosed on the properties, the Board, as beneficiary of the letters of credit, demanded payment from BNG on all of the letters of credit, and BNG honored the demand.

In January 2010, BNG filed the instant actions for the amounts owed under the letters of credit and seeking statutory attorney fees. BNG filed motions for summary judgment, and Windermere, Simon Road, and the guarantors filed cross-motions for summary judgment. The trial court denied BNG’s motions on the ground that issues of material fact remained for trial, but it did not elaborate on what those facts were. The trial court also denied the cross-motions for summary judgment for the same reason.

Case Nos. A12A0602 and A12A0603

1. In three related claims of error, Simon Road and Windermere contend that the trial court erred in denying their cross-motions for summary judgment. The cross-appellants contend that the debts evidenced by the reimbursement agreements in the letters of credit are inextricably intertwined with their other debts and that BNG’s claims on the letters of credit amount to claims for a deficiency following the foreclosures and, therefore, are barred due to the bank’s failure to confirm the foreclosure sales pursuant to OCGA § 44-14-161 (a). We agree.

OCGA § 44-14-161 (a) provides:

When any real estate is sold on foreclosure, without legal process, and under powers contained in security deeds, mortgages, or other lien contracts and at the sale the real estate does not bring the amount of the debt secured by the deed, mortgage, or contract, no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale to the judge of the superior court of the county in which the land is located for confirmation and approval and shall obtain an order of confirmation and approval thereon.

This statute, which was enacted in 1935 during the Great Depression, was intended to relieve debtors “from the economic depression of the times. . .. [T]he aim of the legislation was stated ‘to limit and abate deficiency judgments in suits and foreclosure proceedings on debts.’ ” First Nat. Bank &c. v. Kunes, 230 Ga. 888, 890 (199 SE2d 776) (1973). A deficiency judgment is “a judgment for that part of a debt secured by a mortgage not realized from a sale of the mortgaged property.” (Citation omitted.) Hill v. Move, 221 Ga. App. 411, 412 (1) (471 SE2d 910) (1996).

Pursuant to the statute, before BNG is entitled to file an action to obtain a deficiency judgment against the debtors, it must report the foreclosure sale to and obtain confirmation of the sale from the Superior Court of Douglas County (where the foreclosed land was located) by showing that the sale was lawfully conducted and brought at least the fair market value of the land on the date of the sale. OCGA § 44-14-161 (b), (c). See McCain v. Galloway, 267 Ga. App. 505 (600 SE2d 449) (2004); Atlanta Empowerment Zone Corp. v. Light Energy Mgmt., 269 Ga. App. 728, 729 (605 SE2d 124) (2004). “The statute, by using the word ‘debtor,’ included all who were presently subject to payment of the debt, or who might be subjected to payment thereof, if within the knowledge of the payee of the note.” First Nat. Bank &c. v. Kunes, 128 Ga. App. 565, 568 (5) (197 SE2d 446) (1973). Thus, in this context, debtors includes guarantors. See First Nat. Bank &c. v. Kunes, 230 Ga. at 891 (“We hold that if the appellant bank expected to assert its right to indemnification from the defendants . . . under the agreements they signed, it was necessary that these parties be properly notified of the confirmation proceedings, irrespective of whether these separate undertakings were agreements of surety or guaranty.”); Hill v. Moye, 221 Ga. App. at 413 (2) (accord).

As explained below, the requirements of OCGA § 44-14-161 (a) apply to the reimbursement agreements in the instant letters of credit because, although they are separate obligations incurred after the original 2004 and 2006 acquisition and development loans, all of the obligations are inextricably intertwined.

This Court has applied OCGA § 44-14-161 (a) to foreclosure proceedings on separate debts which are inextricably intertwined to prevent creditors from circumventing the statute’s mandates by making successive loans against the security of the same property. This prevents creditors from avoiding the very purpose of the confirmation statute [,] that being to protect debtors from deficiency judgments when their property is sold at a foreclosure sale for less than its market value. As a general rule, two debts that are incurred for the same purpose, secured by the same property, held by the same creditor, and owed by the same debtor are inextricably intertwined.

(Citations, punctuation and footnotes omitted.) Iwan Renovations v. North Atlanta Nat. Bank, 296 Ga. App. 125, 128 (1) (673 SE2d 632) (2009). See also Tufts v. Levin, 213 Ga. App. 35, 39 (2) (443 SE2d 681) (1994); Oakvale Road Assoc. v. Mortgage Recovery Fund &c., 231 Ga. App. 414, 416 (499 SE2d 404) (1998) (physical precedent only) (accord).

Decided May 21, 2012.

Greenberg Traurig, Lee B. Hart, Sean A. Gordon, for appellant.

Schreeder, Wheeler & Flint, John A. Christy, Scott D. McAlpine, for appellees.

In this case, Windermere and Simon Road incurred their respective 2004 and 2006 debts for the purpose of developing residential subdivisions near or adjacent to the Windermere Golf Club. Although the letters of credit at issue obligated BNG to reimburse the Board, the funds were actually used by Windermere and Simon Road to build the infrastructure for the subdivisions. Thus, the debts incurred pursuant to the letters of credit and pursuant to the notes were for the same purpose, developing residential real estate. All of the debts were held by the same creditor. Finally, Windermere’s and Simon Road’s obligations to BNG pursuant to the letters of credit were secured by the same golf course property that secured Windermere’s 2004 notes and which secured Simon Road’s 2006 notes by virtue of the 2007 security deed. Because the debts were incurred for the same purpose, secured by the same property, held by the same creditor, and owed by the same debtor, they were inextricably intertwined. See Iwan Renovations v. North Atlanta Nat. Bank, 296 Ga. App. at 128 (1). Therefore, BNG’s suits on the letters of credit must be considered suits to recover deficiency judgments. Because BNG failed to get judicial confirmation of the foreclosure sales, they are barred by OCGA § 44-14-161 (a). Id. Accordingly, the trial court erred in denying the cross-appellants’ motions for summary judgment.

Case Nos. A12A0560 andA12A0561

2. For the reasons stated above, the trial court properly denied BNG’s motions for summary judgment.

Judgments affirmed in Case Nos. A12A0560 and A12A0561. Judgments reversed in Case Nos. A12A0602 and A12A0603.

Blackwell and Dillard, JJ., concur.

       In an “Affidavit Relating to Title” filed six months after BNG recorded its deed under power of sale concerning the “Property of Windermere Golf Cluh, LLC,” affiant Marc D. Glenn, an attorney, averred that the foreclosure sale concerning this property was not properly advertised and is, therefore, void. The affidavit contains no statement that it was based upon Glenn’s personal knowledge. The affidavit is not a publisher’s affidavit, and it is unclear what Glenn’s relationship to the parties is. At most, the affidavit is one concerning title under OCGA § 44-2-20, and, as the statute then in effect provided, the affidavit would he admissible in litigation “over any of the lands referred to” in the affidavit, but only if the party making the affidavit is unavailable to testify in court. See OCGA § 44-2-20 (b). No one has asserted that Glenn was unavailable. If it does not appear that a portion of an affidavit was made upon the affiant’s personal knowledge, “that portion is to be disregarded in considering the affidavit in connection with the motion for summary judgment.” (Punctuation omitted.) Goddard v. City of Albany, 285 Ga. 882, 887 (6) (684 SE2d 635) (2009). Disregarding, as we must, the affiant’s statement’s concerning the propriety of the foreclosure sale, BNG has not shown that the foreclosure sale was void and subject to recision pursuant to OCGA § 9-13-172.1.


text:
    A12A0928.
    SANCHEZ v. THE STATE.
    (728 SE2d 718)
   Ellington, Chief Judge.

A Gwinnett County jury found Roni Sanchez guilty beyond a reasonable doubt of two counts of statutory rape, OCGA § 16-6-3 (a); and two counts of child molestation, OCGA § 16-6-4 (a) (1). Following the denial of his motion for a new trial, Sanchez appeals, contending that the evidence was insufficient. For the reasons explained below, we affirm.

On appeal from a criminal conviction, the appellate court

view[s] the evidence in the light most favorable to the verdict[,] and an appellant no longer enjoys the presumption of innocence. [The appellate court] determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, [the appellate court] must uphold the jury’s verdict.

(Citations omitted.) Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

Viewed in the light most favorable to the jury’s verdict, the evidence shows the following. In the fall of 2006, during a family cookout, the 14-year-old victim lay down to nap and woke to find Sanchez, her 27-year-old cousin, touching her breasts. Over the next two years, Sanchez, who frequently visited the victim’s home, molested the victim by touching her breasts on many separate occasions. Beginning soon after the first incident of molestation, Sanchez also had sexual intercourse with the victim on several occasions.

In May 2009, the victim revealed Sanchez’s conduct first to a teacher and a school counselor and then to her parents. A sexual assault examination showed a healed tear to the victim’s hymen and other indicators consistent with the victim’s report of sexual intercourse.

At an investigator’s request, the victim went to the police department and placed a telephone call to Sanchez, which was recorded, transcribed, and translated from Spanish into English. During that phone call, the victim told Sanchez that she was pregnant. Acknowledging the sexual relationship going back to late 2006, Sanchez offered to stand by the victim and to support her financially.

At trial, the victim testified as to each incident. The jury also viewed an audiovisual recording of the forensic interview that took place after the victim’s outcry and received the transcript of the telephone call between Sanchez and the victim. Sanchez testified at trial and, although he denied all the other incidents of molestation, admitted having sexual intercourse with the victim once when she was 16 years old.

1. Sanchez contends that the State failed to adduce any evidence to corroborate the victim’s testimony as to the two counts of statutory rape, as required by OCGA § 16-6-3 (a).

[I]t is well settled!, however,] that it is not necessary that the child be corroborated as to every essential element of the crime, or that it establish the defendant’s guilt [.] . . . Moreover, the quantum of corroboration needed is not that which is in itself sufficient to convict the accused, but only that amount of independent evidence which tends to prove that the incident occurred as alleged. Slight circumstances may be sufficient corroboration, and ultimately the question of corroboration is one for the jury.

(Citations and punctuation omitted.) Timmons v. State, 182 Ga. App. 556, 557 (356 SE2d 523) (1987). In this case, the victim’s testimony was corroborated, inter alia, by the medical evidence, by Sanchez’s opportunity to commit the crimes as alleged, by the statements Sanchez made when the victim told him that she was pregnant, and by his testimony admitting one incident of sexual intercourse. See Worley v. State, 222 Ga. 319 (149 SE2d 682) (1966) (victim’s testimony corroborated by her pregnancy and by the defendant’s opportunity to commit the crime as alleged); Hill v. State, 295 Ga. App. 360, 361-362 (1) (671 SE2d 853) (2008) (victim’s testimony corroborated by her prior consistent statement to a friend and by the defendant’s admissions during a recorded telephone call); Byars v. State, 198 Ga. App. 793 (1) (403 SE2d 82) (1991) (victim’s testimony corroborated by her pregnancy, by her prior consistent statement to her cousin, and by the defendant’s opportunity to commit the crime as alleged); Runion v. State, 180 Ga. App. 440 (1) (349 SE2d 288) (1986) (victim’s testimony corroborated by her prior consistent statement to a sexual assault examiner and by the defendant’s admission of an act of molestation against the victim). Accordingly, the evidence was sufficient for a rational jury to find Sanchez guilty beyond a reasonable doubt of statutory rape.

Decided May 21, 2012.

Brown & Gill, William L. Gill, for appellant.

Daniel J. Porter, District Attorney, Lindsay B. Gardner, Assistant District Attorney, for appellee.

2. Sanchez contends that the evidence was insufficient to sustain his conviction on Count 3 of the indictment, which charged that, between June 1,2007, and August 31,2007, he molested the victim by rubbing her breasts. Specifically, Sanchez points to the victim’s testimony regarding one incident that took place in his car. Regardless whether the victim testified that Sanchez did not touch her breasts during that specific incident, there was evidence that he touched her breasts on many occasions, including during the specified time period. Accordingly, this claim of error presents no basis for reversal. Cook v. State, 276 Ga. App. 803, 804-805 (1) (625 SE2d 83) (2005); Wallace v. State, 253 Ga. App. 220, 221 (1) (a) (558 SE2d 773) (2002).

Judgment affirmed.

Phipps, P. J., and Dillard, J., concur.

       OCGA § 16-6-3 (a) (“[N]o conviction shall be had for [statutory rape] on the unsupported testimony of the victim.”).

       In detail, the record shows that the victim described the incident as follows: en route to a video store with the victim, Sanchez parked in a secluded area, had the victim get out of the car, placed himself in the passenger seat, had the victim sit on his lap, attempted anal penetration, and stopped when the victim complained of the pain. The prosecutor asked, “[A]t that point, did he touch your breasts?” (Emphasis supplied.) The victim responded, “No.”


author: Dillard, Judge.

text:
    A12A0547.
    GORDON v. THE STATE.
    (728 SE2d 720)
   Dillard, Judge.

Following trial, a jury convicted John Gordon of one count each of aggravated assault, motor-vehicle hijacking, and possession of a firearm during the commission of a crime. Gordon appeals his convictions and the denial of his motion for new trial, challenging the sufficiency of the evidence and arguing that the trial court erred in its instructions to the jury on the hijacking and possession-of-a-firearm charges. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s guilty verdict, the evidence shows that around 8:30 p.m. on February 26, 2005, James Willingham drove his sport utility vehicle (SUV) into the parking lot of a gas station and went into the station’s convenience store to buy a soft drink. After making this purchase, Willingham left the store and walked back to his SUV, but just as he reached the driver’s side door, a young man wearing a hooded sweatshirt approached, pointed a Glock handgun at Willingham’s face, and ordered him to drop his car keys. Willingham eventually complied and ran back into the store while yelling for someone to call the police. The gunman then jumped into the driver’s seat of the SUV and attempted to start the engine, but could not do so. Hearing that his SUV’s engine would not start, Willingham ran back outside the store, at which point the gunman exited the SUV, fired two shots into the air to scare Willing-ham back into the store, and then ran through an alley toward the parking lot of a shopping center behind the gas station.

Nearly the entire incident was witnessed by an employee of a package store located in the shopping center behind the gas station. The package-store employee — who had just walked outside to go on a break — saw the gunman demand Willingham’s keys and then run from the scene after failing to start the SUV’s engine. Additionally, the employee saw that upon reaching the shopping center’s parking lot, the gunman got into the front passenger seat of a white Ford Crown Victoria, which appeared to have been waiting for him. And although the employee did not get a good look at the driver, the vehicle drove away slowly enough that he was able to see its license tag number, which he then provided to the police upon their arrival on the scene.

Based on the tag number provided by the package-store employee, the police were able to locate the white Crown Victoria shortly after it left the scene, but the driver eluded apprehension at that time. Nevertheless, police officers determined that the vehicle was registered to John Gordon’s mother. Shortly thereafter, police officers went to Gordon’s mother’s residence and met with Gordon, who also resided there. During that interview, Gordon admitted that he was the exclusive driver of the Crown Victoria, but he denied any involvement in the gas-station hijacking and claimed that he had been with his girlfriend on the night in question. However, when the police interviewed Gordon’s girlfriend, she admitted that Gordon had only been at her apartment for part of the evening on which the incident occurred.

Not long after determining who owned the Crown Victoria involved in the hijacking, police officers also learned that the actual gunman may have been 13-year-old C. T., who was the cousin of Gordon’s girlfriend. Consequently, police met with C. T. and his mother, and during the course of that interview, C. T. admitted that he was the person who pointed a gun at Willingham and demanded the keys to his SUV. Specifically, C. T. confessed that he and Gordon decided to hijack Willingham’s SUV after seeing it near the gas station and noticing that it contained a custom television and DVD player. C. T. also informed the police officers that the handgun he used in the hijacking belonged to Gordon.

A day or so later, police officers obtained a warrant to arrest Gordon and to search his mother’s home for any evidence connected to the hijacking. At the time the search warrant was executed, Gordon was not home, but with his mother’s full cooperation, police officers discovered a Glock handgun underneath the mattress of Gordon’s bed. Based on the handgun’s serial number, police officers determined that it belonged to a Union City police detective, who had reported it stolen approximately seven months earlier. And shortly after executing the search warrant, police officers spotted Gordon’s vehicle near his girlfriend’s apartment. Gordon attempted to flee, but officers eventually arrested him following a brief high-speed chase, which ended when Gordon lost control of his vehicle and crashed into the porch of a small residence adjacent to the road.

Gordon was thereafter indicted on one count each of aggravated assault, motor-vehicle hijacking, theft by receiving of the stolen handgun, and possession of a firearm during the commission of a crime. During Gordon’s trial, Willingham and the package-store employee testified about the hijacking, and several of the police officers involved testified regarding their investigation of the crime. The State also called C. T. as a witness. And although C. T. testified that Gordon was not aware that he intended to hijack the SUV when Gordon dropped him off at the gas station and that he only learned what happened as they were leaving, C. T. admitted that he previously implicated Gordon in his statement to the police. To impeach C. T.’s testimony, the State introduced C. T.’s statement implicating Gordon in the crimes, and two of the investigating officers testified that C. T. had previously claimed Gordon was involved in the commission of the foregoing crimes.

At the conclusion of Gordon’s trial, the jury found him guilty on the aggravated-assault, motor-vehicle-hijacking, and possession-of-a-firearm charges but not guilty on the theft-by-receiving charge. Thereafter, Gordon obtained new counsel and filed a motion for new trial, which the trial court denied subsequent to a hearing on the matter. This appeal follows.

1. In two separate enumerations of error, Gordon challenges the sufficiency of the evidence supporting his convictions. Specifically, Gordon argues that the evidence was insufficient to prove that C. T. actually obtained the SUV as required by the motor-vehicle-hij acking statute and that the evidence was insufficient to prove that Gordon was a party to the crime. We disagree.

At the outset, we note that when a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. And in evaluating the sufficiency of the evidence, “we do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.” Thus, the jury’s verdict will be upheld “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case.. . .” With these guiding principles in mind, we will now address Gordon’s specific contentions.

(a) Obtaining a motor vehicle. OCGA § 16-5-44.1 (b) provides that “[a] person commits the offense of hijacking a motor vehicle when such person while in possession of a firearm or weapon obtains a motor vehicle from the person or presence of another by force and violence or intimidation or attempts or conspires to do so.” Gordon contends that the evidence was insufficient to support his conviction on the hijacking charge, arguing that the word “obtain” as it is used in the statute entails some movement of the subject vehicle and that, here, no such movement occurred because C. T. was unable to start the SUV’s engine. We disagree.

While Georgia’s hijacking statute does not define “obtain,” this Court has previously held that “[t]he concept of ‘obtaining’ a motor vehicle from its owner encompasses the notion of acquiring control thereof____” And ordinarily,* “obtain” means “to procure or gain, as the result of purpose and effort; hence, generally, to acquire, get.” Therefore, applying the ordinary meaning of “obtain,” the offense of hijacking a motor vehicle is concluded when possession of the motor vehicle is acquired. Furthermore, and belying Gordon’s argument, the hijacking statute makes no mention whatsoever of movement or asportation of the vehicle being an element of the offense. As such, we are not persuaded by Gordon’s contention that C. T.’s failure to move the SUV equates to a failure to obtain it. The General Assembly could have included language in the hijacking statute that proscribed not only obtaining, but also moving a motor vehicle once it has been obtained. Nevertheless, “it did not, and we discern that the absence of such language was a matter of considered choice.”

And here, the evidence shows that C. T. pointed a handgun at Willingham, demanded the keys to his SUV, entered the vehicle, and attempted to start its engine. Accordingly, C. T. obtained the vehicle within the meaning of the hijacking statute, and thus his actions were clearly sufficient to prove hijacking of a motor vehicle beyond a reasonable doubt.

(b) Evidence that Gordon was a party to the crime. Gordon also contends that the evidence was insufficient to support his convictions in light of the fact that C. T. testified at trial that he was unaware of C. T.’s intent to hijack the SUV and did not learn that C. T. committed any crime until well after they left the gas station. Once again, we disagree.

Under OCGA § 16-2-20, “[e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” And a person is “concerned in the commission of a crime” if he intentionally aids or abets in the commission or intentionally “advises, encourages, hires, counsels, or procures another to commit the crime.” Indeed, once a common design is “shown by evidence tending to indicate that the [perpetrators] have associated themselves together to do an unlawful act, any act done in pursuance of that association by any one of the associates would ... be the act of each of them.” Furthermore, criminal intent may be “inferred from conduct before, during, and after the commission of a crime.”

And here, C. T. informed the police that he and Gordon both agreed to the plan to hijack Willingham’s SUV Indeed, C. T.’s statement to that effect was entered into evidence, and the two investigating police officers testified that C. T. initially implicated Gordon. And although C. T. testified at trial that Gordon was not involved in his decision to hijack the SUV, “(a)ny alleged inconsistencies in the evidence and issues of [the witnesses’] credibility were for the jury, not this Court, to resolve; and the jury obviously resolved those issues against [Gordon].”

In sum, given C. T.’s initial implication of Gordon combined with the fact that Gordon was waiting in the getaway vehicle while C. T. hijacked the SUV, fled with C. T. from the scene of the crime, possessed the gun that C. T. used in the crime, and fled again when the police attempted to arrest him, we conclude that the evidence was sufficient to support Gordon’s convictions as a party to C. T.’s crimes.

2. Gordon contends that the trial court erred in charging the jury on the full text of the motor-vehicle-hijacking statute. Specifically, he argues that the court erred in charging the jury on the statutory language providing that a defendant can be convicted when he “conspires” to hijack, because, here, Gordon was not indicted for conspiracy. This contention lacks merit.

It is well established that in reviewing an allegedly erroneous jury instruction, “we apply the plain legal error standard of review.” And here, the trial court charged the jury on nearly the entirety of the motor-vehicle-hijacking statute, providing that: “[a] person commits the offense of hijacking a motor vehicle when such person, while in possession of a firearm, obtains a motor vehicle from the person or presence of another by force and violence or intimidation or conspires to do so.”

On appeal, Gordon argues that the trial court erred in providing the foregoing instruction because it allowed the jury to convict him for conspiring to hijack a motor vehicle despite the fact that he was not indicted on conspiracy charges. However, a conspiracy may be proven and a jury charge may be given on conspiracy, “even though a defendant is not indicted under that theory.” And the specific statutory inclusion of conspiracy as a method of committing the crime of hijacking a motor vehicle does not “alter the general rule that a conspiracy can be proven and charged without being indicted.” Accordingly, the trial court did not err in charging the jury on the entirety of the motor-vehicle-hijacking statute.

3. Gordon further contends that the trial court committed reversible error in its instruction to the jury on the charge of possession of a firearm during the commission of a crime. We find this argument unavailing.

In the case sub judice, Count 4 of the indictment charged Gordon with possession of a firearm during the commission of a crime by noting that Gordon “did unlawfully have on and within arm’s reach of [his] person a handgun during the commission of a felony against and involving the person of another, to wit: aggravated assault...” And in its instructions to the jury following closing arguments, the trial court read the entire indictment, including Count 4. A few minutes later, the court instructed the jury on the applicable law as follows: “A person commits the offense of possession of a firearm during commission of a crime when the person has on or within arm’s reach of his person a firearm during the commission of any crime against or involving the person of another and which crime is theft by receiving.” The court then stated, “The offense of aggravated assault is a felony under the laws of this State.”

Gordon argues that because the court used the phrase “any crime” and then mistakenly stated that theft by receiving was the felony underlying the possession-of-a-firearm charge, the instruction was overinclusive and there is a reasonable probability that the jury convicted him of committing the offense in a manner not alleged in the indictment. But while it is clear from the record that the trial court in using the phrase “any crime” charged nearly the entire Code section and that it misspoke by stating “and which crime is theft by receiving” instead of “and which crime is a felony,” an erroneous charge does not warrant a reversal “unless it was harmful and, in determining harm, the entirety of the jury instructions must be considered.” Furthermore, “a mere verbal inaccuracy in a charge, which results from a palpable slip of the tongue, and clearly could not have misled or confused the jury is not reversible error.”

And here, the trial court instructed the jury that the State had the burden of proving every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt. Additionally, the indictment, which clearly stated that aggravated assault was the felony underlying the possession-of-a-firearm charge, was read to the jury and sent out with the jury during deliberations. Moreover, the court’s mention of theft by receiving near the end of the charge was clearly a mere slip of the tongue in light of the fact that in its very next sentence the court mentioned aggravated assault as being the underlying felony at issue. Given these circumstances, “we will neither impute an adverse construction to the charge nor give so little credence to the ability of the jury to select that portion of the statute obviously applicable to the facts and issues presented for their determination.” Accordingly, we do not find a reasonable probability that the jury convicted Gordon of the offense of possession of a firearm during the commission of a crime in a manner not charged in the indictment.

Decided May 22, 2012

Long D. Vo, for appellant.

Paul L. Howard, Jr., District Attorney, Arthur C. Walton, Joshua D. Morrison, Assistant District Attorneys, for appellee.

Judgment affirmed.

Ellington, C. J., and Phipps, P. 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§ 16-5-21 (a) (2).

       OCGA§ 16-5-44.1 (b).

       OCGA§ 16-8-7 (a).

       OCGA§ 16-11-106 (b)(1).

        See, e.g., English v. State, 301 Ga. App. 842, 842 (689 SE2d 130) (2010).

        Joiner v. State, 299 Ga. App. 300, 300 (682 SE2d 381) (2009); see also Jackson, 443 U. S. at 319 (III) (B).

        Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (punctuation omitted).

       OCGA§ 16-5-44.1 (b) (emphasis supplied).

        Bruce v. State, 252 Ga. App. 494, 497 (1) (a) (555 SE2d 819) (2001).

        See OCGA § 1-3-1 (b) (“In all interpretations of statutes, the ordinary signification of statutes shall be applied to all words, except words of art or words connected with a particular trade or subject matter, which shall have the signification attached to them by experts in such trade or with reference to such subject matter”); Harris v. State, 286 Ga. 245, 246 (3) (686 SE2d 777) (2009) (considering ordinary signification of key words of statute, where statute did not provide for definition and such words constituted neither a term of art nor a technical term).

       The Compact Oxford English Dictionary 1196 (2d ed. 1991).

        See Jackson v. State, 309 Ga. App. 24, 26 (1) (a) (709 SE2d 44) (2011) (noting that “the offense of hijacking a motor vehicle is concluded when possession of the motor vehicle is attained”); Bruce, 252 Ga. App. at 497 (1) (a) (holding that the “concept of‘obtaining’ a motor vehicle from its owner encompasses the notion of acquiring control thereof, regardless of whether the victim remains with the vehicle”). Cf. State v. Kell, 276 Ga. 423, 425 (577 SE2d 551) (2003) (referencing dictionary definition to ascertain meaning of “obtain” in criminal statute, and determining that the offense is concluded when the property is attained).

        See Jackson, 309 Ga. App. at 28 (1) (a) (holding that the absence of language proscribing “retaining” a vehicle after obtaining it, was the legislature’s considered choice that retaining the vehicle was not an element of the crime of hijacking).

        See Bruce, 252 Ga. App. at 497 (1) (a) (holding that “the offense of hijacking a motor vehicle is complete when a person while in possession of a firearm or weapon obtains a motor vehicle from the victim” (punctuation omitted)).

       OCGA§ 16-2-20 (a).

       OCGA§ 16-2-20 (b) (3), (4).

        Whitehead v. State, 304 Ga. App. 213, 216 (1) (695 SE2d 729) (2010) (punctuation omitted).

        McGordon v. State, 298 Ga. App. 161, 163 (2) (679 SE2d 743) (2009) (punctuation omitted).

        Martin-Argaw v. State, 311 Ga. App. 609, 613 (2) (716 SE2d 737) (2011) (footnote and punctuation omitted).

        See Eckman v. State, 274 Ga. 63, 65 (1) (548 SE2d 310) (2001) (holding that defendant could be convicted as a party to co-defendants’ crimes, including motor vehicle hijacking, because there was evidence that defendant was present when the crimes were committed, and the jury could infer from her conduct before and after the crimes that she shared the criminal intent of the actual perpetrators); Johnson v. State, 299 Ga. App. 706,709 (1) (a) (683 SE2d 659) (2009) (holding that jury was authorized to find that defendant was a party to hijacking because he drove perpetrator to crime scene, had prior knowledge that perpetrator intended to steal car, and helped perpetrator flee the scene).

        Johnson v. State, 299 Ga. App. at 711 (2) (punctuation omitted).

        Williams v. State, 267 Ga. 308, 309 (2) (477 SE2d 570) (1996).

        Middlebrooks v. State, 241 Ga. App. 193,195 (3) (526 SE2d 406) (1999); see also Huey v. State, 263 Ga. 840, 842 (3) (439 SE2d 656) (1994) (“g]t has been repeatedly held that a conspiracy may be proven and a jury charge may be given on conspiracy and parties to a crime even though a defendant is not indicted under those theories.”); Daniels v. State, 306 Ga. App. 577, 583 (3) (703 SE2d 41) (2010) (holding that specific statutory inclusion of attempt as a method of committing offense of hijacking a motor vehicle does not alter the general rule that an attempt can he proven and charged without being indicted).

        See Middlebrooks, 241 Ga. App. at 195 (3).

        See OCGA§ 16-11-106 (b) (1).

        Williams v. State, 267 Ga. 771, 773 (2) (a) (482 SE2d 288) (1997) (punctuation omitted).

        Id. (punctuation omitted).

        Beals v. State, 288 Ga. App. 815, 817 (2) (655 SE2d 687) (2007) (punctuation omitted).

        See id.


author: MlKELL, Presiding Judge.

text:
    A12A0310.
    COX v. PROGRESSIVE BAYSIDE INSURANCE COMPANY.
    (728 SE2d 726)
   MlKELL, Presiding Judge.

In order to recover damages allegedly sustained in an automobile collision, Margaret Cox filed suit against Lester H. Dodson. Cox then voluntarily dismissed that suit and refiled the present renewal action after the statute of limitation had expired, but within the six-month period contemplated by OCGA § 9-2-61. Progressive, an unnamed defendant and the uninsured motorist carrier for the owner of the vehicle Cox was occupying at the time of the accident, moved to dismiss the complaint because Dodson died several months prior to the filing of the renewal action. The trial court granted the motion to dismiss. Cox appeals, arguing that the trial court erred in dismissing the action entirely as being void ab initio, that the trial court erred in holding that substitution of parties is not available in this renewal action, and that the trial court erred in determining that the renewal action is also dismissed as to Progressive. Finding no error, we affirm.

On appeal, we conduct a de novo review of a trial court’s ruling on a motion to dismiss.

Cox filed suit against Dodson in the State Court of Carroll County arising out of injuries she sustained when Dodson’s car struck the vehicle she was riding in as a passenger. After Dodson was properly served, Cox filed a voluntary dismissal without prejudice. Cox then filed a renewal action within the six-month renewal period. Prior to this, Dodson died. Eight days after the renewal complaint was filed, the sheriffs entry of service was filed, indicating that Dodson had died. Progressive, an unnamed defendant, filed a suggestion of death of party defendant and a motion to dismiss, to which Cox did not respond. Ahearing was held on the motion to dismiss over 11 months after Cox was put on notice that Dodson had died, but no motion to substitute a party defendant was ever filed. After a hearing, the trial court granted Progressive’s motion to dismiss, finding that, because Dodson died prior to the filing of the renewal action, the action was a nullity and void ab initio.

1. Cox argues that the trial court erred in determining that Dodson’s death rendered the renewal action void ab initio and in determining that substitution of the parties was unavailable in the renewal case. We disagree.

Appellant’s argument that the renewal pleading relates back to the original pleading for purposes of perfecting service is misguided. The renewal statute, OCGA § 9-2-61, allows a plaintiff who voluntarily dismisses a timely filed suit to file suit within six months, regardless of whether the statute of limitation has run. However, a renewal suit is “an action de novo.” “[T]herefore, the procedural requirements of filing a new complaint and perfecting service must be met anew.” In the present case, Cox did not meet the procedural requirements of perfecting service against Dodson because he was deceased at the time she filed the renewal suit. In Georgia, a deceased person cannot be a party to legal proceedings, and any suit brought against a deceased defendant is a nullity. The fact that Cox may have perfected service against Dodson in the prior suit does not affect the fact that she has not perfected service against him in the renewal suit, and accordingly, no action was ever commenced.

Further, Cox’s argument that she should have been allowed to substitute the proper party for the deceased Dodson under OCGA § 9-11-25 is without merit. Cox was informed of Dodson’s death over 11 months prior to the hearing on the motion to dismiss and never filed a motion for substitution under OCGA § 9-11-25. Because the renewed complaint was filed against a deceased person and Cox never attempted to substitute defendants prior to the trial court’s hearing on the motion to dismiss, we find that the trial court did not err in denying Cox’s request to substitute parties.

Decided May 23, 2012.

Joseph N. Harden, for appellant.

Groth & Makarenko, Nikolai Makarenko, Jr., Shur, McDuffie & Morgan, Timothy W. Andrews, Charis L. Johnson, for appellee.

2. Cox next argues that the trial court erred in dismissing the renewed complaint as to Progressive, the uninsured motorist carrier for the owner of the vehicle Cox was occupying at the time of the accident. However, Cox did not raise this argument in the trial court below, either in a written motion or during the hearing on the motion to dismiss. The Court of Appeals will not consider arguments neither raised nor ruled on in the trial court and that are asserted for the first time on appeal. Accordingly, this issue is waived.

Judgment affirmed.

Miller and Blackwell, JJ., concur.

        Penny v. McBride, 282 Ga. App. 590 (639 SE2d 561) (2006).

        Sawyer v. DeKalb Medical Center, 234 Ga. App. 54 (1) (506 SE2d 197) (1998).

       (Footnote omitted.) Carter v. McKnight, 260 Ga. App. 105,106 (2) (578 SE2d 901) (2003).

        Davis v. Bushnell, 245 Ga. App. 221, 222 (537 SE2d 477) (2000). Accord Carter, supra; Magsalin v. Chace, 255 Ga. App. 146 (564 SE2d 554) (2002).

        Vaughan v. Brown, 181 Ga. App. 680, 681 (2) (353 SE2d 608) (1987). Accord Mathews v. Cleveland, 159 Ga. App. 616, 617-618 (284 SE2d 634) (1981).

        Vaughan, supra; Mathews, supra.

        Rowe v. Citizens & Southern Nat. Bank, 129 Ga. App. 251, 253 (199 SE2d 319) (1973) (statute relating to the substitution of parties after death was inapplicable where a party originally named was not in existence at the time the complaint was filed).

       Cox mistakenly asserts that Progressive is the uninsured motorist carrier for Dodson.

        Belans v. Bank of America, 309 Ga. App. 208, 212 (3) (709 SE2d 853) (2011).

       Id.


text:
    A12A0748.
    MWANGI v. THE STATE.
    (728 SE2d 729)
   MlKELL, Presiding Judge.

Following a stipulated bench trial, Bernard Ndungu Mwangi appeals from his convictions for theft by taking, burglary, entering an automobile with intent to commit theft, and forgery. He contends that the trial court erred in denying his motions to suppress evidence seized and statements made to police both before and after his incarceration. For the reasons that follow, we affirm.

In reviewing a trial court’s ruling denying a motion to suppress, the following three principles apply: First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. Because there was testimonial evidence in this case, we do not apply a de novo standard of review.

So viewed, the record shows that at the hearing on the motions to suppress, Officer M. J. Masselter of the Cobb County Police Department testified that at about 2:00 a.m. on January 25, 2010, he and another officer responded after a caller to 911 reported that the motion-sensor lights on the front and back of her house came on after a man she did not know parked his truck in her driveway, blocking it, and walked away. The truck in question belonged to a business in another area. As the officers approached the house where the 911 call originated, Masselter saw Mwangi, wearing dark clothing and riding a toy scooter down a hill toward the police car. The police and Mwangi each stopped at approximately the same time, about 100 to 150 feet apart. Masselter identified himself and his companion as police officers. Mwangi allowed himself to be patted down. No weapons were found. Mwangi consented to a search of his pockets, in which Mas-selter found a pair of gloves and a key. Once the officers determined that the key fit the truck, they detained Mwangi.

At the scene, Mwangi told Cobb County Police Officer Dennis Ryan that he had been walking in people’s yards and looking into cars; that the truck did not belong to him; but that he had parked it in the driveway. Mwangi, still detained but not handcuffed, rode in Ryan’s police car to show Ryan where he got the truck. After the truck’s owner confirmed that the truck was missing, Ryan handcuffed Mwangi and read him his Miranda rights. Mwangi then told Ryan that he took the scooter from the house where he parked the truck, and he directed Ryan back to the house where the 911 call originated.

Cobb County Police Detective J. W. Friedlander testified that the following day, he interviewed Mwangi at the Cobb County Adult Detention Facility, where Mwangi was in custody, and advised him of his Miranda rights. Mwangi admitted to the theft of the truck, to entering numerous other vehicles in the previous months, and to forging and cashing checks he had stolen from checkbooks he found in the vehicles. He also admitted that he had some stolen items at his house. During the recorded interview, Friedlander asked for and received consent to search Mwangi’s house; but because other people lived there and Mwangi was not the owner, Friedlander obtained a search warrant. A search of Mwangi’s room yielded items that did not belong to Mwangi, including an iPod Touch, a Wachovia bank statement, and a checkbook. The trial court denied Mwangi’s motions to suppress, and entered a final disposition. Mwangi moved for a new trial, which the trial court denied. This appeal followed.

1. In his first enumeration, Mwangi asserts that the trial court erred in denying his motion to suppress evidence seized as a result of his initial detention, search, and seizure, which he argues were unlawful. We find no error.

“There are at least three types of police-citizen encounters: verbal communications which involve no coercion or detention; brief ‘stops’ or ‘seizures’ which must be accompanied by a reasonable suspicion; and ‘arrests’ which can only be supported by probable cause.”

A first-tier encounter never intrudes upon any constitutionally protected interest since the purpose of the Fourth Amendment is not to eliminate all contact between police and citizens, but simply to prevent arbitrary and oppressive police interference with the privacy and personal security of individual citizens. On the other hand, a second-tier encounter may violate the Fourth Amendment if the officer briefly “stops” or “seizes” a citizen without reasonable suspicion. Reasonable suspicion exists when an officer has a particularized and objective basis for suspecting that a citizen is involved in criminal activity. Moreover, a “seizure” within the meaning of the Fourth Amendment only occurs when, in view of all the circumstances surrounding the incident, a reasonable person believes that he is not free to leave.

(a) Mwangi contests the initial stop as unlawful. We disagree. Masselter testified that, in the initial contact between the officers and Mwangi, Mwangi stopped at the same time the police car stopped; then the police approached him and Mwangi identified himself. Masselter testified that he initially thought that Mwangi, who was riding a child’s toy scooter, was a juvenile illegally out after curfew. Officers established that Mwangi was an adult. Mwangi did not attempt to flee. Masselter testified that at the time of the initial contact, “visibility of [Mwangi] was very poor. The roadway was wet, and he was wearing dark clothing,” so Masselter turned on a police spotlight because “it was difficult to see [Mwangi].”

Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, ask to examine the individual’s identification, and request consent to search, as long as police do not convey a message that compliance with their requests is required.

The police in the instant case did not turn on their blue lights. There was no evidence that this initial encounter involved coercion or detention. The trial court did not err in finding the initial encounter lawful.

(b) Mwangi further challenges the pat-down and pocket search as unlawful. This argument fails.

Second-tier encounters occur when an officer conducts a brief investigative Terry stop of a citizen. At this level, even in the absence of probable cause, an officer may stop a person and briefly detain him, if the officer has a particularized and objective basis for suspecting the person is involved in criminal activity.

Masselter had a particularized and objective basis for suspecting that Mwangi was involved in criminal activity, because Masselter knew that within the preceding hour or so, a woman had called 911 after the motion-sensor lights on her home came on and after a strange truck had blocked her driveway. He knew that the truck belonged to a business in another area; that an unidentified male had walked away from the truck; and that in this neighborhood there recently had been a number of “entering auto” incidents involving items stolen from unlocked cars. Based on these facts, Masselter believed that the driver of the truck was probably on foot in the neighborhood. When the officers encountered Mwangi, he was alone, late at night, only about six blocks from the home where the 911 call originated. Masselter testified that Mwangi was “nervous” and “shaking” and “looked very shocked to see us.” Thus, the officers had “a particularized and objective basis” for suspecting that Mwangi was involved in criminal activity. Indeed, Mwangi concedes as much in his brief.

Masselter testified that he patted down Mwangi to check for weapons, for his own safety, “because of the nature of the original complaint, the time of night, [and] the fact that there was nobody else in the neighborhood that was out on foot.”

Unlike a full search, a pat-down is conducted solely for the purpose of ensuring the officer’s safety and that of others nearby, not to obtain evidence for use at a trial. As such, it is considered a minimal intrusion reasonably designed to discover . . . weapons that could prove dangerous to a police officer.

As explained in Terry v. Ohio, an “officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.”

The state bears the burden of proving the lawfulness of a pat-down search for weapons, and there is evidence to support the trial court’s ruling that the state met its burden in this case.

(c) Following the pat-down, Mwangi consented to Masselter’s search of his pockets, in which the truck key and leather gloves were found. Mwangi contends that this evidence should have been suppressed because his consent was invalid given that the initial detention and pat-down were invalid. However, we have concluded above that the initial detention and pat-down were lawful. It follows that Mwangi’s consent also was valid.

Moreover, pretermitting whether the pat-down was supported by a reasonable belief that Mwangi was armed and dangerous, because the pat-down was brief, yielded no evidence, and was not a basis for the further investigative detention, it did not taint Mwangi’s subsequent consent to the search of his pockets. The search of Mwangi’s pockets was valid, and the trial court did not err in denying the motions to suppress.

Decided May 23, 2012.

Mitchell D. Durham, for appellant.

Patrick H. Head, District Attorney, Amelia G. Pray, Benjamin M. First, Assistant District Attorneys, for appellee.

2. Mwangi’s second enumeration contends that the trial court erred in allowing into evidence his statements and confessions to police, made both on the night of his arrest and later at the Cobb County Adult Detention Center, on the basis that the initial detention, search, and seizure were unlawful. His third enumeration alleges that the trial court erred in denying his motion to suppress evidence seized from his residence, contending that the search warrant was invalid because the evidence used to obtain it was the product of an unlawful detention, search, and seizure. However, Mwangi’s appellate brief concedes that at the motion hearing, his trial counsel “explained to the trial judge that, if the initial stop and search at the scene were found to be valid, the subsequent statements and search of the residence would also be valid.” We agree. Given our findings in Division 1, the second and third enumerations of error fail.

Judgment affirmed.

Miller and Blackwell, JJ., concur.

       (Punctuation and footnote omitted; emphasis in original.) Ware v. State, 309 Ga. App. 426 (710 SE2d 627) (2011).

       (Punctuation and footnote omitted.) Stadnisky v. State, 285 Ga. App. 33, 36 (2) (645 SE2d 545) (2007).

       (Citations and punctuation omitted.) State v. Folk, 238 Ga. App. 206,207 (521 SE2d 194) (1999) (whole court).

       (Footnote omitted.) Ware, supra at 427-428.

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

        Pruitt v. State, 263 Ga. App. 814, 816-817 (1) (589 SE2d 591) (2003).

        Folk, supra.

       (Punctuation and footnotes omitted.) Ware, supra at 428.

       (Citations omitted.) Terry, supra at 27 (III).

        Molina v. State, 304 Ga. App. 93, 95 (695 SE2d 656) (2010).

       See Lewis v. State, 307 Ga. App. 593, 595-596 (705 SE2d 693) (2011) (state met burden of showing lawfulness of pat-down search where defendant was in high-crime area known for robberies and was loitering near store that had previously been robbed); Woods v. State, 275 Ga. App. 340, 343-344 (1) (b) (620 SE2d 609) (2005) (brief investigative stop and pat-down justified by reasonable, articulable suspicion where defendant was looking into vehicles in area where there had been a spate of break-ins).

        Ware, supra at 428 (valid consent to pocket search eliminates need for either probable cause or search warrant).

       See Langston v. State, 302 Ga. App. 541, 544, n. 3 (691 SE2d 349) (2010); St. Fleur v. State, 296 Ga. App. 849, 853 (2) (676 SE2d 243) (2009).