author: DILLARD, Presiding Judge.

text:
    A16A2120.
    SMITH v. THE STATE.
    (797 SE2d 679)
   DILLARD, Presiding Judge.

In this interlocutory appeal, Joshua Smith appeals the trial court’s denial of his general and special demurrers to the charged offenses of criminal attempt to entice a child for indecent purposes (“attempted-enticement”) and child pornography. As to the attempted-enticement offense, Smith argues that the trial court erred because the indictment failed to allege a violation of Georgia law and there was a fatal variance between the charged offense and the language of the indictment. As to the child-pornography offense, Smith maintains that the trial court erred because this count was predicated on the deficient attempted-enticement count and the indictment failed to specify the conduct that is alleged to be, by its nature, an unlawful sexual offense against a child. For the reasons set forth infra, we affirm in part and reverse in part.

Although our decision turns solely on the language of the indictment, a summary of the background underlying the case is helpful to provide context for this appeal. Specifically, the record shows that on March 14, 2015, law-enforcement officers with the Pooler Police Department, along with agents from the Federal Bureau of Investigation, obtained several rooms at a local motel. After doing so, they placed an advertisement on the Internet indicating that there was a female alone in one of the rooms and provided an undercover officer’s phone number. Shortly thereafter, the officer began receiving responses via text message, and he informed one individual—later identified as Smith—that the female referenced in the advertisement was under the age of 16. Smith then exchanged messages of a sexual nature with the officer, and eventually, Smith agreed to come to the room where he believed the minor female would be waiting for him. But when Smith arrived, he encountered law-enforcement officers and was immediately taken into custody

Subsequently, Smith was charged with computer pornography (Count 1), obscene telephone contact with a child (Count 2), and criminal attempt to entice a child for indecent purposes (Count 3). Smith then filed a general demurrer, special demurrer, and motion to quash all three counts of the indictment. After the State’s response and a hearing on the matter, the trial court denied Smith’s general and special demurrers as to Counts 1 and 3 but granted his general demurrer as to Count 2. The court also granted Smith a certificate of immediate review, and we then granted his application for an interlocutory appeal. This appeal follows.

An accused may challenge the sufficiency of an indictment by filing a general or special demurrer. A general demurrer challenges “the sufficiency of the substance of the indictment, whereas a special demurrer challenges the sufficiency of the form of the indictment.” An indictment shall be deemed sufficiently technical and correct to withstand a general demurrer if it “states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may easily be understood by the jury.” In other words,

if an accused would be guilty of the crime charged if the facts as alleged in the indictment are taken as true, then the indictment is sufficient to withstand a general demurrer; however, if an accused can admit to all of the facts charged in the indictment and still be innocent of a crime, the indictment is insufficient and is subject to a general demurrer.

Furthermore, this Court reviews a trial court’s ruling on a general or special demurrer de novo in order to determine “whether the allegations in the indictment are legally sufficient.” With these guiding principles in mind, we will now address Smith’s specific claims of error.

1. In two separate enumerations of error, Smith argues that the trial court erred in denying his general demurrer to Count 3 of the indictment because it failed to allege a violation of Georgia law. We disagree.

In relevant part, Count 3 of the indictment charged that

on or about the 14th day of March, 2015, with the intent to commit the crime of [ejnticing a [c]hild for [ijndecent [purposes, [Smith] did unlawfully perform an act constituting a substantial step toward the commission of said crime, to wit: did unlawfully solicit and entice another person believed by said accused to be a child under 16 years of age, to meet him when he arrived at [a motel] in Pooler, Georgia, and did travel to such motel for the purpose of committing indecent acts and child molestation upon said child ... in violation of Code Section 16-6-5 ....

And under OCGA § 16-6-5 (a), “[a] person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.”

As noted supra, Smith argues that Count 3 of the indictment was insufficient to withstand a general demurrer because it failed to allege a violation of Georgia law. Specifically, Smith contends that the indictment failed to allege a violation of OCGA § 16-6-5 (a) because it charged him with enticing another person whom he believed to be under the age of 16, while the language of the statute requires the State to prove that he enticed an actual child victim. This argument is a nonstarter. Smith was not charged with a completed violation of OCGA § 16-6-5 (a), but with having the in tent to commit that offense and performing an act that constituted a substantial step toward doing so. Thus, although Count 3 was entitled “[e]nticing a child for indecent purposes, O.C.G.A. [§] 16-6-5,” the pertinent question before this Court is whether the indictment was sufficient to allege an attempted violation of OCGA § 16-6-5 (a).

We agree with Smith that a completed violation of OCGA § 16-6-5 (a) requires that the enticement be of a victim who is an actual child under the age of 16. Indeed, in evaluating any statute, we must “afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.” And OCGA § 16-6-5 (a) undoubtedly requires there to be solicitation or enticement of an actual victim under the age of 16, rather than of someone, as in this case, who the accused merely believed to be a child. In fact, not only must there be a child victim for a violation of OCGA § 16-6-5 (a), the statute also includes an asportation element, which requires some movement of that child. Thus, the existence of a specific child victim is plainly an essential element that the State must allege to sufficiently charge a defendant with enticement of a child for indecent purposes in violation of OCGA § 16-6-5 (a).

But again, the indictment here only charged Smith with an attempted violation of OCGA § 16-6-5 (a), and “the mere fact that [the existence of a child victim] is an element of the completed crime does not mean that it is indispensable in proving criminal attempt.” Instead, the relevant question is whether “the defendant took a substantial step toward the commission of a crime.” Indeed, we have repeatedly held that a conviction for attempted child molestation—an offense that, to be completed, obviously requires the existence of a child victim—may be sustained when “the defendant communicated with an adult whom the defendant believed to be a child under 16 years old and took substantial steps to meet with that person to engage in sexual activity that would constitute child molestation.” Similarly, here, the indictment was sufficient to allege an attempted violation of OCGA § 16-6-5 (a) because it alleged that, with intent to entice or solicit a child for indecent purposes, Smith took a substantial step toward the commission of that crime (i.e., engaging in sexually explicit communications with a person whom he believed to be under the age of 16, arranging a meeting place, and driving to a motel to meet her).

Nevertheless, to support his apparent argument that a defendant may never be charged with or convicted of criminal attempt to commit a crime when, under the circumstances, the underlying crime was impossible to complete, Smith relies on this Court’s decisions in McIntosh v. State and State v. Harlacher, But neither of those cases set forth such a sweeping generalization regarding criminal attempt, andboth are easily distinguishable. In McIn tosh, unlike this case, we addressed the requirements to sufficiently charge a defendant with a completed crime (forgery), not with criminal attempt to commit that crime. And contrary to Smith’s arguments, Harlacher was decided narrowly in the context of an attempted aggravated-assault charge in which the completed offense would have required the defendant, who pointed a handgun at the victim, to have placed that victim in “reasonable apprehension of immediately receiving a violent injury.” However, in that case, the victim was unaware that the defendant had brandished a firearm, and our Supreme Court has held that, under those particular circumstances, a defendant may only be charged with and convicted of a misdemeanor—pointing or aiming a gun at another without legal justification. Relying on that precedent, we held that, unless the defendant placed the victim in reasonable apprehension of harm, he could only be charged with the misdemeanor of pointing a firearm, not attempted aggravated assault. Moreover, nothing in Harlacher or the Supreme Court cases upon which it relies remotely suggests that a defendant cannot be charged with or convicted of attempting to commit a sex crime against a minor when, as here, the defendant takes a substantial step to commit that crime, but ultimately cannot do so because there is no actual child involved. In fact, OCGA § 16-4-4 specifically provides:

It is no defense to a charge of criminal attempt that the crime the accused is charged with attempting was, under the attendant circumstances, factually or legally impossible of commission if such crime could have been committed had the attendant circumstances been as the accused believed them to be.

And again, this Court, as authorized by OCGA § 16-4-4, has repeatedly upheld convictions for attempted child sex crimes when the alleged victim was actually a law-enforcement officer posing as a minor. Thus, the trial court did not err in denying Smith’s general demurrer to Count 3 of the indictment.

2. In a similar enumeration of error, Smith also argues that the trial court erred in denying his special demurrer to Count 3 of the indictment because there is a fatal variance between the offense that he is charged with committing and the language of the indictment. Again, we disagree.

As explained by our Supreme Court, “[a]n indictment that is not subject to a general demurrer may, however, be subject to a special demurrer, which challenges the specificity of the indictment.” More specifically,

[t]he true test of the sufficiency of an indictment to withstand a special demurrer is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.

Furthermore, averments in an indictment “as to the specific manner in which a crime was committed are not mere surplusage, and such averments must be proved as laid, or the failure to prove the same will amount to a fatal variance and a violation of the defendant’s right to due process of law.” But here, the sole basis for Smith’s cursory argument that there was a fatal variance between the indictment and the charged offense is that the indictment references a violation of OCGA § 16-6-5, while the language of the indictment charges him, in substance, with criminal attempt to commit that offense in violation of OCGA § 16-4-1. But this argument ignores the fact that it is the substantive description of the crime, “rather than the description and number of the section under which it appears in the Code[,] which furnishes the criterion for determining whether the indictment is good.” As a result, given our holding in Division 1 supra (i.e., that the language of the indictment was sufficient to allege an attempted violation of OCGA § 16-6-5 (a)), it is immaterial that the indictment failed to specifically reference the criminal-attempt statute.

3. Next, Smith argues that the trial court erred in denying his general demurrer to Count 1 of the indictment, which charged him with computer pornography, because it was predicated upon the attempted-enticement count discussed supra, as well as other allegations that failed to allege a violation of Georgia law. This claim of error is likewise without merit.

Count 1 of the indictment charged Smith with the offense of computer pornography in violation of OCGA § 16-12-100.2 (d) in that, on or about March 14, 2015, he did

intentionally and willfully utilize a computer on-line messaging service ... to attempt to seduce, lure and entice another person believed by said accused to be a child under 16 years of age to commit the offenses of [ejnticing a [c]hild for [ijndecent [pjurposes as described in Code Section 16-6-5 and to engage in conduct that by its nature is an unlawful sexual offense against a child in violation of Code Section 16-12-100.2_

Without citing to any legal authority (other than the criminal statutes at issue), Smith summarily contends that because OCGA § 16-6-5 does not “criminalize the conduct at issue” for the reasons given in his previous enumerations of error, the computer-pornography count likewise does not allege a violation of Georgia law. But again, this argument is predicated on the false assumption that Count 3 charged Smith with a completed violation of OCGA § 16-6-5, rather than an attempted violation. And similarly to Count 3, Count 1 of the indictment, which tracked the language in OCGA § 16-12-100.2, charged Smith with using an online messaging service in an attempt to entice a child for indecent purposes in violation of OCGA § 16-6-5. Thus, for the same reasons given in Division 1 supra, we reject Smith’s argument that Count 1 of the indictment failed to charge a violation of Georgia law.

4. Finally, Smith argues that the trial court erred in denying his special demurrer to the computer-pornography count of the indictment (Count 1) because it failed to specify the conduct that the State alleges is, by its nature, an unlawful offense against a child. We agree. As previously explained,

[a]n indictment is sufficient to withstand a special demurrer if it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.

Here, as set forth in Division 3, Count 1 of the indictment charged Smith with using a computer-messaging service to attempt to seduce, lure, and entice another person whom he believed to be a child under the age of 16 to violate OCGA § 16-6-5 and “to engage in conduct that by its nature is an unlawful sexual offense against a child” in violation of Code Section 16-12-100.2. Relying on the Supreme Court of Georgia’s decision in Wetzel v. State, Smith contends that when the State charges a violation of OCGA § 16-12-100.2 (d) (1), as here, it is required to “plead that [the accused] utilized a computer to engage in conduct that violates a specific criminal law.”

Smith is indeed correct that, in Wetzel, our Supreme Court held, in the context of reviewing a jury instruction, that in order to prove a violation of OCGA § 16-12-100.2 (d) (1), the State is required to “identify at least some underlying crime.” Specifically, the Wetzel Court held that the trial court erred by instructing the jury that

[a] person commits the offense of computer pornography when he intentionally utilizes an electronic device to seduce, solicit, or entice a child or an individual believed by such person to be a child to engage in any conduct that by its nature is an unlawful sexual offense against a child

because such an instruction “did not give the jury any inkling of the underlying offense upon which [that count] was allegedly based.” The Court further noted that the indictment also failed to identify the particular “unlawful sexual offense” at issue. Under such circumstances, the trial court’s instruction on that count “failed to give the jury proper guidelines for determining guilt or innocence.” Ultimately, in Wetzel, the defendant’s conviction on the relevant count was reversed because the Supreme Court held that the erroneous jury instruction combined with the State’s misleading closing argument was harmful error.

Decided March 1, 2017.

Falen O. Cox, for appellant.

Turning to the case sub judice, although Count 1 of the indictment, which alleged a violation of OCGA § 16-12-100.2 (d) (1), specifically identified enticement of a child for indecent purposes (OCGA § 16-6-5) as an offense that Smith allegedly attempted to commit, it also generally charged that he used a computer-messaging service to attempt to commit an “unlawful sexual offense.” And while the indictment “tracked the relevant statutory language,” it might also operate to “bestow upon the jury the power to create and then retroactively enforce an ‘unlawful sexual offense’ based solely on its feelings, or its beliefs regarding how the community would feel, about [Smith’s] conduct.” Furthermore, because we are reviewing the indictment on interlocutory appeal, before any trial, we must “apply the rule that a defendant who has timely filed a special demurrer is entitled to an indictment perfect in form and in substance.” Thus, applying the analysis in Wetzel, Count 1 of Smith’s indictment does not clearly apprise him of all of the alleged criminal conduct that he must defend against at trial, and we are constrained to reverse the trial court’s denial of his special demurrer as to Count 1 of the indictment.

For all of the foregoing reasons, we affirm the trial court’s denial of Smith’s general and special demurrers to and motion to quash the attempted-enticement count of the indictment (Count 3) and its denial of Smith’s general demurrer to the computer-pornography count (Count 1), but we reverse the trial court’s denial of Smith’s special demurrer to the computer-pornography count.

Judgment affirmed in part and reversed in part.

Reese and Bethel, JJ., concur.

Meg E. Heap, District Attorney, Jennifer P. Guyer, Assistant District Attorney, for appellee.

       Although Count 3 of the indictment is entitled “[ejnticing a child for indecent purposes, O.C.G.A. [§] 16-6-5,” the indictment, in substance, charges only that Smith intended to commit that crime and took a “substantial step” toward doing so. Under such circumstances, we consider Count 3 of the indictment to have charged Smith with criminal attempt to violate OCGA § 16-6-5, rather than with a completed violation of that statute. See OCGA § 16-4-1 (“A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.”); Dennard v. State, 243 Ga. App. 868, 871 (1) (a) (534 SE2d 182) (2000) (“[A] person is guilty of criminal attempt if with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” (punctuation omitted)); see also infra note 8.

        State v. Harlacher, 336 Ga. App. 9, 10 (783 SE2d 411) (2016); accord State v. Corhen, 306 Ga. App. 495, 496 (700 SE2d 912) (2010).

        Harlacher, 336 Ga. App. at 10 (punctuation omitted); see also Dunbar v. State, 209 Ga. App. 97, 98 (2) (432 SE2d 829) (1993).

       OCGA § 17-7-54 (a); see also Harlacher, 336 Ga. App. at 10.

        Corhen, 306 Ga. App. at 497; see also Lowe v. State, 276 Ga. 538, 539 (2) (579 SE2d 728) (2003); Dunbar, 209 Ga. App. at 98 (2).

        Sallee v. State, 329 Ga. App. 612, 616 (2) (765 SE2d 758) (2014); see also Harlacher, 336 Ga. App. at 10.

        See supra note 1.

        See OCGA § 16-4-1 (“A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.”); Morris v. State, 310 Ga. App. 126, 131 (3) (712 SE2d 130) (2011) (“It is immaterial what the offense is called in the indictment as long as the averments of the presentment are such as to describe an offense against the laws of the State.” (punctuation omitted)); Hill v. State, 257 Ga. App. 82, 84 (1) (570 SE2d 395) (2002) (“It is the description of the crime, rather than the description and number of the section under which it appears in the Code which furnishes the criterion for determining whether the indictment is good.” (punctuation omitted)).

        Mathis v. State, 336 Ga. App. 257, 259 (784 SE2d 98) (2016) (punctuation omitted); accord Deal v. Coleman, 294 Ga. 170, 172-73 (1) (a) (751 SE2d 337) (2013); see also Tibbies v. Teachers Retirement Sys. of Ga., 297 Ga. 557, 558 (1) (775 SE2d 527) (2015) (“A statute draws [its] meaning, of course, from its text.” (punctuation omitted)).

        See OCGA § 16-6-5 (a) (“A person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16years to any place whatsoever for the purpose of child molestation or indecent acts.” (emphasis supplied)).

        See Cimildoro v. State, 259 Ga. 788, 789(1) (387 SE2d 335) (1990) (“The offense described in OCGA § 16-6-5, ‘enticing a child for indecent purposes,'has been held to include the element of ‘asportation.’”); Heard v. State, 317 Ga. App. 663, 665 (731 SE2d 124) (2012) (“The asportation element of [OCGA § 16-6-5 (a)] is satisfied whether the ‘taking’ involves physical force, enticement, or persuasion. The concept of asportation relates to movement....” (citation and punctuation omitted)).

       To the extent that the State, in their cursory brief, suggests that a child victim is not required for a violation of OCGA § 16-6-5 (a), we note that the computer-pornography statute (OCGA § 16-12-100.2 (d) (1)), unlike OCGA § 16-6-5 (a), expressly provides that the prohibited online solicitation may be of “a child [or] another person believed- by such, person to beachild_” (emphasis supplied). And under such circumstances, we must presume that if the General Assembly intended to criminalize under OCGA § 16-6-5 (a) the solicitation or enticement of another person who is not a child, but is believed by the accused to be a child, for indecent purposes, it certainly knew how to do so. See generally Patterson v. State, 299 Ga. 491, 495 (789 SE2d 175) (2016) (holding that OCGA § 16-5-20 (a) (2) does not require that a defendant in tend to place a victim in reasonable apprehension of receiving a violent injury, and noting that the General Assembly certainly knew how to phrase a statute to include such a requirement as shown by its simultaneous enactment of another criminal statute, which included an intent requirement); Fair v. State, 284 Ga. 165, 168 (2) (b) (664 SE2d 227) (2008) (noting that if the General Assembly had intended to require knowledge of the victim’s status as a peace officer in order for the aggravating circumstance under OCGA § 17-10-30 (b) (8) to apply, the General Assembly knew how to do so).

        Dennard, 243 Ga. App. at 871 (1) (a); see English v. State, 301 Ga. App. 842, 843 (689 SE2d 130) (2010) (“The ‘substantial step’ requirement [under the criminal-attempt statute] shifts the emphasis from what remains to be done to what the actor has already done. The fact that further steps must be taken before the crime can be completed does not preclude such a finding that the steps already undertaken are substantial.” (punctuation omitted)).

        Dennard, 243 Ga. App. at 873 (1) (c); accord Massey v. State, 267 Ga. App. 482, 483 (600 SE2d 437) (2004).

        See OCGA § 16-6-4 (a) (“A person commits the offense of child molestation when such person: (1) Does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person; or (2) By means of an electronic device, transmits images of a person engaging in, inducing, or otherwise participating in any immoral or indecent act to a child under the age of 16years with the intent to arouse or satisfy the sexual desires of either the child or the person.” (emphasis supplied)).

        Lopez v. State, 326 Ga. App. 770, 774 (1) (b) (757 SE2d 436) (2014); see Brown v. State, 321 Ga. App. 798, 800 (1) (743 SE2d 474) (2013) (holding that evidence that a defendant engaged in sexually explicit online communications with a law-enforcement officer posing as a 14-year-old girl and went to an arranged meeting place was sufficient to sustain a conviction for attempted child molestation, and noting the fact that the 14-year-old did not actually exist did not preclude a conviction for attempted child molestation); Logan v. State, 309 Ga. App. 95, 99-100 (2) (a) (709 SE2d 302) (2011) (holding that evidence that the defendant, via electronic communications, asked law-enforcement officer posing as 14-year-old girl to engage in sexual intercourse and oral sodomy, and then carried a condom to an arranged meeting place, was sufficient to show that defendant took a substantial step toward committing child molestation and aggravated child molestation); Smith v. State, 306 Ga. App. 301, 301, 302 (1) (702 SE2d 211) (2010) (holding that evidence that the defendant engaged in sexually explicit online conversations with an adult posing as a 15-year-old girl, drove to an arranged meeting place, and then fled from law-enforcement officers who were waiting at that place, was sufficient to sustain his conviction for attempted child molestation).

        See Castaneira v. State, 321 Ga. App. 418, 419, 423-24 (2) (740 SE2d 400) (2013) (affirming convictions for criminal attempt to commit child molestation and criminal attempt to entice a child for indecent purposes when there was evidence that the defendant took substantial steps to commit those crimes by communicating with and arranging to meet a police detective whom the defendant believed to be a 15-year-old girl); Adams v. State, 312 Ga. App. 570, 570-71, 577 (3) (a) (718 SE2d 899) (2011) (holding that the evidence was sufficient to support a conviction for attempted enticement of a child for indecent purposes when the defendant exchanged sexual messages with a police investigator who claimed to be a 14-year-old girl and drove to a park where he had arranged to meet her).

       23 Ga. App. 513 (98 SE 555) (1919).

       336 Ga. App. at 9.

        See generally McIntosh, 23 Ga. App. 513.

        See Harlacher, 336 Ga. App. at 12-13 (punctuation omitted).

        See Rhodes v. State, 257 Ga. 368, 370 (5) (359 SE2d 670) (1987); Manzano v. State, 282 Ga. 557, 558-59 (2) (651 SE2d 661) (2007); see also Harlacher, 336 Ga. App. at 12-13; OCGA § 16-11-102 (“A person is guilty of a misdemeanor when he intentionally and without legal justification points or aims a gun or pistol at another, whether the gun or pistol is loaded or unloaded.”).

        See Harlacher, 336 Ga. App. at 12-13.

        See supra notes 16 and 17. We note that this Court has also held that an indictment was sufficient to allege criminal attempt to commit a crime in other contexts when it was not possible for the accused to complete that crime. See, e.g., Davis v. State, 281 Ga. App. 855, 857-59 (1) (637 SE2d 431) (2006) (holding that the indictment was sufficient to charge criminal attempt to purchase cocaine when the “buyer” was a confidential informant and there was no actual cocaine involved).

        State v. Wyatt, 295 Ga. 257, 260 (2) (759 SE2d 500) (2014).

        Id. (punctuation omitted).

        New v. State, 327 Ga. App. 87, 102 (3) (e) (755 SE2d 568) (2014) (citation and punctuation omitted); accord Clemens v. State, 318 Ga. App. 16, 19-20 (2) (733 SE2d 67) (2012).

        Nye v. State, 279 Ga. App. 347, 348-49 (1) (631 SE2d 386) (2006) (punctuation omitted); accord Hill, 257 Ga. App. at 84 (1).

        See Schaff v. State, 275 Ga. App. 642, 643 (2) (b) (621 SE2d 595) (2005) (holding that “although the accusation did not cite a particular ordinance or statute, it is clear from the language in each of the charges that [the defendant] was accused of violating county ordinances”); Hill, 257 Ga. App. at 84 (1) (holding that the indictment sufficiently described the charges against the defendant and the State was not required to specify the statute that the defendant allegedly violated).

        See OCGA § 16-12-100.2 (d) (1) (“It shall be unlawful for any person intentionally or willfully to utilize a computer wireless service or Internet service, including, but not limited to, a local bulletin board service, Internet chat room, e-mail, instant messaging service, or other electronic device, to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice a child [or] another person believed- by such person to be a child ... to commit any illegal act by, with, or against a child as described in Code Section 16-6-2, relating to . . . Section 16-6-5, relating to the offense of enticing a child for indecent purposes ... or to engage in any conduct that by its nature is an unlawful sexual offense against a child.” (emphasis supplied)); see also Coleman v. State, 318 Ga. App. 478, 480-81 (1) (735 SE2d 788) (2012) (holding that the indictment was sufficient to charge attempted burglary when it tracked the applicable statute and apprised the defendant of both the crime and the manner in which it was alleged to have been committed); Davis, 281 Ga. App. at 859 (1) (holding that an indictment was sufficient to charge the defendant with attempting to traffic in cocaine when it “track[ed] the applicable statutes in a manner that [was] easily understood, and it apprised [defendant] of both the crime and the manner in which it was alleged to have been committed”).

        Sallee, 329 Ga. App. at 616 (2) (punctuation omitted).

       298 Ga. 20 (779 SE2d 263) (2015).

        Id. at 26 (2) (b).

        Id.

        See id. (punctuation omitted).

        Id. at 26-27 (2) (b) (punctuation omitted).

        See id. at 27 (2) (b).

        Id.

        See Dennard, 243 Ga. App. at 877 (2).

        See supra note 31 and accompanying text; State v. Grube, 293 Ga. 257, 260 (2) (744 SE2d 1) (2013) (“[T]o comport with constitutional due process an indictment charging a defendant with a criminal offense must satisfy two criteria: (1) it must contain the essential elements of the crimes and apprise a defendant of what he must be prepared to meet at trial; and (2) it must show with accuracy to what extent the defendant may plead a former acquittal or conviction.”). It is worth noting that, of course, when “the trial court grants a special demurrer and quashes the indictment, it does not bar the State from re-indicting the defendant.” Chapman v. State, 318 Ga. App. 514, 518 (1) (b) (i) (733 SE2d 848) (2012).


source: Caselaw Access Project

author: McMlLLIAN, Judge. McFADDEN, Presiding Judge,

license: Public Domain

text:
    A16A1501.
    In the Interest of K. J. et al., children.
    (798 SE2d 9)
   McMlLLIAN, Judge.

During a judicial review hearing in a juvenile dependency case, the court sua sponte found the children’s mother, Haley Weaver, to be in criminal contempt after she tested positive for drugs. Weaver appeals, contending that (1) the evidence was insufficient to support the finding of contempt, and (2) the juvenile court erred in finding her in contempt without first providing her with notice and a hearing. For the reasons set forth below, we affirm.

For a contempt finding to constitute criminal contempt, rather than civil contempt, the trial court must impose unconditional punishment for a contumacious act, such as conduct that interferes with the court’s ability to administer justice. See Moton v. State, 332 Ga. App. 300, 301 (772 SE2d 393) (2015). “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.” (Citation and punctuation omitted.) In re Liles, 278 Ga. App. 496, 496 (629 SE2d 492) (2006).

So viewed, the evidence shows that on January 26, 2016, Weaver appeared with counsel in Lumpkin County Juvenile Court for a hearing in her children’s dependency case. Prior to the hearing, the parties reviewed the dispositional report and the case plan. At the hearing, through her attorney, Weaver consented to the putative father’s legitimation petition and stipulated to entry of the disposi-tional report. The court inquired into Weaver’s progress on her case plan, and the Department of Family and Children Services (the “Department”) indicated that it intended to ask Weaver to take a drug screen that day. The juvenile court then asked Weaver if she was willing to take a drug screen. Weaver agreed, and the court recessed in order for her to do so.

Weaver’s drug screen was positive for “oxy, opiates, THC, amphetamines, and methamphetamines.” Weaver did not dispute the results of the screen, and her attorney stated that she had admitted to using marijuana and pain pills in the recent past. Weaver declined the opportunity to speak on her own behalf to the court. The juvenile court then found Weaver in contempt because she had appeared in court in an impaired condition, thus interfering with the court’s ability to do business and making it impossible to complete the hearing. Although trial counsel asserted that Weaver had been cooperative and was able to participate in the case and articulate her wishes, counsel conceded that he would not have been able to call her as a witness if there had been a need for her to testify As a result, the juvenile court found that, by having come to court in an impaired condition, Weaver had limited the court’s ability to complete its business, ordered Weaver into custody for 48 hours, and continued the hearing.

1. Weaver contends that the juvenile court lacked sufficient evidence to find her in contempt because there was no evidence that she was impaired such that she disrupted the court’s business.

“[T]he broad authority of a judge to preserve good order in the courtroom by the use of contempt power is well recognized and must be preserved if the courts are to perform their public duty.” (Citation, punctuation and footnote omitted.) In re Jefferson, 283 Ga. 216, 217 (657 SE2d 830) (2008). Pursuant to OCGA § 15-11-31 (a), a juvenile court may find an adult in contempt for “willfully disobeying an order of the court or for obstructing or interfering with the proceedings of the court or the enforcement of its orders.”

While there is no evidence that Weaver engaged in outbursts, the statute merely requires that she obstructed or interfered with court proceedings. See OCGA § 15-11-31 (a). Weaver asserts that the business before the court had been concluded prior to the drug screen. However, while the parties had nothing further to present, the juvenile court had questions concerning why Weaver had not been communicating with the Department, had not been visiting at least one of the children, and tellingly, why she had not submitted to a drug screen. The court apparently felt that it could not go forward with addressing these concerns without having Weaver screened for drugs and halted the hearing for that purpose. More specifically, the juvenile court found in its contempt order that Weaver “appeared to the Court, from the commencement of the hearing, to be under the influence of a substance.” This finding was based, in part, “on its observation of her demeanor and the test results, including the comprehensive nature of [the] drugs for which [Weaver] tested positive.” Although the dissent acknowledges that it must “credit” these findings, it appears to give more credit to Weaver’s counsel’s statement that she had been able to assist him, even though counsel conceded that he would not have been able to call her as a witness. See generally In re Bowens, 308 Ga. App. 241, 243 (1) (706 SE2d 694) (2011) (“[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 omitted). Given the juvenile court’s observations, the testimony that Weaver had a positive drug screen that day, as well as the continuation of the hearing, a rational trier of fact could have found beyond a reasonable doubt that Weaver interfered with the proceedings of the court by appearing in court at her children’s dependency hearing while under the influence of drugs.

2. Weaver contends that the juvenile court deprived her of due process because it issued an order of contempt against her without first providing her with notice of the contempt charge and time to prepare a defense.

“The procedures that a trial court must follow to hold a person in contempt depend upon whether the acts alleged to constitute the contempt are committed in the court’s presence (direct contempt) or are committed out of the court’s presence (indirect contempt).” (Citation omitted.) Ramirez v. State, 279 Ga. 13, 14 (2) (608 SE2d 645) (2005). If the contempt is direct, a trial court may, after affording the person charged with contempt an opportunity to speak, announce punishment summarily and without further notice or hearing. Id. This summary adjudication is authorized

where contumacious conduct threatens a court’s immediate ability to conduct its proceedings, such as where a witness refuses to testify, or a party disrupts the court. Direct contempts in the presence of the court traditionally have been subject to summary adjudication, to maintain order in the courtroom and the integrity of the trial process in the face of an actual obstruction of justice.

(Citations and punctuation omitted.) Id. See also Dowdy u. Palmour, 251 Ga. 135, 141-42 (2) (b) (304 SE2d 52) (1983) (“During trial, a trial judge has the power, when necessary to maintain order in the courtroom, to declare conduct committed in his presence and observed by him to be contemptuous, and, after affording the contemnor an opportunity to speak in his or her own behalf, to announce punishment summarily and without further notice or hearing.”). Where the alleged acts of contempt occur outside of the court’s presence, the considerations justifying summary adjudication do not pertain, and due process requires that a person charged with indirect contempt “be advised of charges, have a reasonable opportunity to respond to them, and be permitted the assistance of counsel and the right to call witnesses.” (Citation and punctuation omitted.) Ramirez, 279 Ga. at 15 (2).

An act of direct contempt occurs if the act is committed in open court. Ramirez, 279 Ga. at 15 (2). Weaver asserts that her alleged acts of contempt occurred outside the courtroom when she consumed the drugs that caused her to fail her drug screen. However, the record is clear that the juvenile court found her in contempt for appearing in court while impaired. The act of appearing in court in an impaired state is a direct contempt. See Hayes v. State, 298 Ga. App. 419, 423 (2) (680 SE2d 508) (2009) (physical precedent only) (The defendant appearing in court with alcohol in his system “occurred, if at all, in the judge’s presence in open court” and was therefore a direct contempt.).

Relying on Newton v. Golden Grove Pecan Farm, 309 Ga. App. 764 (711 SE2d 351) (2011), Weaver asserts that, even if her contumacious acts were direct, the court was not entitled to engage in summary adjudication because she was not disruptive and, thus, her impaired condition did not prevent the juvenile court from conducting its business. Newton is distinguishable. In that case, this Court held that, even if the preparation and filing of bankruptcy petitions in federal court could be considered direct contempt, summary adjudication was not warranted because the filing of the petitions several months earlier posed no immediate threat to the trial court’s ability to conduct its proceedings. See id. at 769-70 (1).

In this case, Weaver posed an immediate threat to the juvenile court’s ability to conduct its proceedings because she appeared at a hearing in her children’s dependency case under the influence of drugs. “Where misconduct occurs in open court, the affront to the court’s dignity is more widely observed, justifying summary vindication.” (Citation and punctuation omitted.) Ramirez, 279 Ga. at 15 (2). Weaver declined the opportunity to speak at the hearing, the court found her in contempt, and her trial counsel presented arguments on her behalf. Because Weaver’s act of contempt occurred in open court and she was afforded an opportunity to speak on her own behalf, the juvenile court did not violate her due process rights.

Judgment affirmed.

Barnes, P. J., Miller, P. J., Dillard, P J., Branch, Mercier and Bethel, JJ., concur. Ellington, P. J., concurs in judgment only. McFadden, P. J., dissents.

McFADDEN, Presiding Judge,

dissenting.

The evidence does not support the juvenile court’s finding that Haley Weaver was in criminal contempt during a judicial review hearing, so I respectfully dissent from Division 1 of the majority opinion. I would not reach the matters addressed in Division 2.

Juvenile courts are authorized to “punish an adult for contempt of court. . . for obstructing or interfering with the proceedings of the court[.]” OCGA § 15-11-31 (a). I would not condone coming to court impaired. But the record before us does not support a finding that Weaver “obstructed] or interfer[ed] with the proceedings.”

“Criminal contempt is a crime in the ordinary sense and the evidence of the contempt must be beyond a reasonable doubt. Contempt is a drastic remedy which ought not to deprive one of her liberty unless it rests upon a firm and proper basis.” In re Harris, 289 Ga. App. 334, 336 (1) (657 SE2d 259) (2008) (citations and punctuation omitted). “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.” In re Beckstrom, 295 Ga. App. 179 (671 SE2d 215) (2008) (punctuation omitted).

The hearing at issue was brief. On January 26, 2016, Weaver appeared with her attorney Counsel for the Department of Family and Children Services (the “Department”) tendered a proposed case plan to which all had consented. Counsel for the children’s father asked that his petition to legitimate be granted. Through her counsel, Weaver consented; and the trial court granted it. The parties then reported that they had nothing further.

At that point the court asked the Department’s attorney about the dispositional report, including the indication that Weaver had not submitted to a drug screen. The Department’s attorney responded, focusing on the issue of the mother’s engagement with the children, but also stating that the Department had not been able to reach the mother for a drug screening and that it was going to ask Weaver to take a screen that day Asked to respond, Weaver’s counsel followed the lead of the Department’s counsel and addressed engagement and visitation with the children.

The judge then addressed Weaver directly. He asked if she was willing to agree to the Department’s request for a drug screen that day Weaver replied, “Yes, sir.” The judge ordered Weaver not to leave the courtroom until the screener was ready to take her for the drug screening. He again addressed her, rather than her counsel, and asked if she understood. Weaver again replied, ‘Yes, sir.” Thereafter, the judge ordered Weaver to go with the screener. After the screening was completed, the parties returned to the courtroom and the screener announced the results were “non-negatives for oxy, opiates, THC, amphetamines, and methamphetamines.”

The judge asked Weaver if she wished to be heard, and her counsel answered on her behalf, stating that she was not in a position to dispute the results, that she had admitted using marijuana and pain pills in the past few weeks, but that she could not explain the methamphetamine. Despite counsel’s response on his client’s behalf, the juvenile court judge again asked Weaver directly if she would like to explain the results. She replied, “No, thank you.”

The judge then announced his finding that she was in contempt and ordered that she be immediately taken into custody The judge stated that his reason for the contempt ruling was that she was in an impaired condition which limited her ability “to communicate effectively with your attorney so that he can represent what your wishes really are,” and that she had thereby impeded the court’s ability to do business.

Weaver’s counsel asked the judge to reconsider the ruling, stating in his place that she had been able to articulate her wishes to him and to participate in the case. The judge responded to counsel’s request by again addressing Weaver directly, “All right. Ma’am, you’re in the custody of the sheriff.” The judge then ordered the case continued until February 2, 2016. The day after the review hearing, the juvenile judge entered a written contempt order finding, on the basis of his “observation of her demeanor and the test results” that Weaver had been impaired and that her impairment “rendered] her unable to proceed, making it impossible for the [cjourt to conduct the scheduled hearing, which was then continued due to her impairment.” The court concluded that “[h]er conduct thus falls under OCGA [§] 15-11-31 (a) in that she interfered with the proceedings of the court.”

Weaver did not attend the continued hearing on February 2, 2016, and her attorney waived her presence. The judge issued a judicial review order, adopting in full the case plan that the parties had agreed to and that had been tendered at the outset of the January 26 hearing.

As noted above, OCGA § 15-11-31 (a) authorizes juvenile courts to impose contempt sanctions upon an adult “for obstructing or interfering with the proceedings of the court [.] ” Contrary to the juvenile court’s findings in this case, there is no evidence that Weaver obstructed or interfered with the review hearing. On the contrary, the record plainly shows that she was present and fully participated in the hearing through her attorney. While the drug screen showed the presence of some unspecified level of certain drugs in her body, and while we must credit the court’s finding that some signs of impairment could be discerned from observation of her demeanor, there is no evidence that Weaver was impaired to the extent that she somehow interfered with the proceedings. Her counsel stated in her place that she had been able to assist him. So the mere presence of some unidentified level of drugs in Weaver’s body “was insufficient to establish contempt beyond a reasonable doubt.” Hayes v. State, 298 Ga. App. 419, 424 (2) (680 SE2d 508) (2009) (finding that evidence that defendant appeared in court smelling of alcohol and with alcohol in his system was insufficient to establish contempt beyond a reasonable doubt). See also Moody v. State, 131 Ga. App. 355, 357-358 (1) (206 SE2d 79) (1974) (defendant, who was brought to court by law enforcement officers and not on her own volition, was not subject to contempt merely for appearing there in a drunken condition).

Decided March 2, 2017.

Conowal Welch Womack, Thomas D. Womack, for appellants.

Samuel S. Olens, Attorney General, Dennis R. Dunn, Deputy Attorney General, Shalen S. Nelson, Calandra A. Harps, Senior Assistant Attorneys General, Richard W. Highsmith, Assistant Attorney General, for appellee.

The January 26 hearing was continued, not because of Weaver’s condition, but because the judge chose to incarcerate her even though she had in no way interfered with the proceedings. Unlike in Hayes, supra, where the possibility of impairment “led the trial court to vacate Hayes’ earlier plea,” Hayes, 298 Ga. App. at 423 (2), nothing compelled the trial court to continue the hearing. Indeed, when she did not appear at the continued hearing, the court simply proceeded in her absence and adopted the case plan agreed to by the parties at the start of the original hearing.

Because there is no evidence that Weaver interfered with the court, the judgment of contempt should be reversed.

       The witness who testified regarding Weaver’s drug screen was not tendered as an expert and did not offer any evidence regarding whether the screen was reliable or when the drugs might have been ingested.


author: Ellington, Presiding Judge.

text:
    A16A1741.
    DEVELOPMENT AUTHORITY OF COLUMBUS v. FOUR JS FAMILY, LLLP.
    (798 SE2d 15)
   Ellington, Presiding Judge.

The Development Authority of Columbus (“DAC”) appeals from the trial court’s orders granting Four JS Family, LLLP’s, motion for a preliminary injunction enjoining the closing of the sale by DAC of certain downtown Columbus commercial property and denying DAC’s motion to dismiss Four JS’s petition for injunction and temporary restraining order. DAC claims that the trial court’s orders are based on an erroneous finding that the Development Authorities Law, OCGA §§ 36-62-1 through 36-62-14 (the “Act”), prohibits DAC from selling real property at less than fair market value except as provided in OCGA § 36-62-6 (a) (7.1). For the reasons set forth below, we agree with DAC and reverse.

This dispute arises out of DAC’s agreement to sell a 1.75 acre tract of commercial property (the “Property”) in downtown Columbus to Vision Hospitality Group, Inc. The record shows that the Property, which is currently used as a parking lot, is located across the street from the Columbus Ironworks Convention and Trade Center and also adjoins the Marriott Downtown Columbus Hotel, which is owned by plaintiff Four JS. DAC acquired the Property from the City in 2009. The City, from as early as 2001, and later, DAC, sought to have a hotel built and operated on the Property to support the Trade Center. In early 2016, Vision and DAC entered into an Agreement of Sale and Purchase (the “Sale Agreement”) providing for, among other things, the sale of the Property to Vision for $50,000 and committing Vision, upon satisfaction of certain conditions, to construct a 125-room hotel and a parking garage thereon.

Four JS filed a petition for injunction and temporary restraining order seeking to enjoin DAC and Vision from proceeding in furtherance of the Sale Agreement. Four JS claimed that DAC had violated OCGA § 36-62-6 by agreeing to sell the Property, which had been valued at $3 million in 2001, for less than fair market value. Four JS further asserted that it stood to be permanently and irretrievably harmed because it had spent $1.25 million to purchase a property in downtown Columbus for the purpose of erecting a Hampton Inn hotel thereon, and that its opportunity to obtain a Hampton Inn franchise could be lost because Vision had submitted a competing franchise application founded on the Sale Agreement.

The trial court issued an order temporarily enjoining the closing of the Sale Agreement and set a hearing for determination of whether the temporary restraining order should be converted to a preliminary injunction. DAC moved to dismiss the petition for failure to state a claim upon which relief could be granted. At the subsequent hearing, the trial court first heard argument on the motion to dismiss, and it then held an evidentiary hearing on the preliminary injunction. The trial court granted a preliminary injunction enjoining the closing of the Sale Agreement until further order of the court and, in a separate order, denied DAC’s motion to dismiss. DAC appeals from these orders.

1. We first consider whether, as DAC contends, the trial court erred in denying its motion to dismiss the petition pursuant to OCGA § 9-11-12 (b) (6) for failure to state a claim. At issue, the parties agree, is whether development authorities, such as DAC, are prohibited by statute from conveying real property at less than fair market value absent compliance with OCGA § 36-62-6 (a) (7.1).

“[A] motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim.” (Citation and punctuation omitted.) Austin v. Clark, 294 Ga. 773, 775 (755 SE2d 796) (2014). In other words, “[i]f, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.” (Citation and punctuation omitted.) Id. On appeal, we “review de novo a trial court’s determination that a pleading fails to state a claim upon which relief can be granted, construing the pleadings in the light most favorable to the plaintiff and with any doubts resolved in the plaintiff’s favor.” (Citation and punctuation omitted.) Babalola v. HSBC Bank, USA, 324 Ga. App. 750 (751 SE2d 545) (2013).

In its petition, Four JS asserts that, while development authorities are authorized to sell or otherwise dispose of real property under the Act, OCGA § 36-62-6 (a) (7.1) sets forth certain mandatory requirements in the case that a development authority disposes of real property for less than fair market value. Four JS alleges that DAC failed to comply with the Act because its board voted to sell the Property at less than fair market value without making a determination that the Property “no longer can be used advantageously as a project for the development of trade, commerce, industry, and employment opportunities,” as required by OCGA § 36-62-6 (a) (7.1), and because a sale at less than fair market value must be made to the State. Rather, Four JS asserts, DAC’s board approved the sale of the Property “for a project” and “for the stated purpose of building of a hotel by Vision.” The trial court’s order denying DAC’s motion to dismiss (as well as its order granting the preliminary injunction), consistently with Four JS’s contentions, found that the Act does not provide for the sale of real property at less than fair market value except as provided in OCGA § 36-62-6 (a) (7.1). DAC maintains that the trial court erredbecause neither OCGA § 36-62-6 (a) (7.1), nor the similarly-worded OCGA § 36-62-6 (a) (7), applies to real property which can be used advantageously as a project.

In resolving this question, “we look to the literal language of the statute, the rules of statutory construction and rules of reason and logic, the most important of which is to construe the statute so as to give effect to the legislature’s intent.” (Citation omitted.) State v. Nix, 220 Ga. App. 651, 652 (1) (469 SE2d 497) (1996). See OCGA § 1-3-1 (a) (“In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy”). “[W]e apply the fundamental rules of statutory construction that require us to construe a statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage.” (Citations omitted.) Slakman v. Continental Cas. Co., 277 Ga. 189, 191 (587 SE2d 24) (2003).

The purposes of the Act “are to develop and promote trade, commerce, industry, and employment opportunities for the public good and the general welfare and to promote the general welfare of the state.” OCGA § 36-62-9. The term “project,” which may include real property, is used throughout the Act and is defined at great length in OCGA § 36-62-2 (6). The parties agree that the Sale Agreement was signed in connection with a “project,” as defined under the Act.

OCGA § 36-62-6 provides for the powers of development authorities. Thereunder, “[ejach authority shall have all of the powers necessary or convenient to carry out and effectuate the purposes and provisions of this chapter, including, but without limiting the generality of the foregoing, the power[s]” set forth in OCGA § 36-62-6 (a). This includes, in pertinent part, the power under OCGA § 36-62-6 (a) (6), “[t]o sell, lease, exchange, transfer, assign, pledge, mortgage, dispose of, or grant options for any real or personal property or interest therein for any such purposes.” OCGA § 36-62-6 (a) (6) does not place any restrictions on the sale of real property, including the sales price, other than that the sale be “for any such purposes,” and the general purpose of the Act, as noted above, is to develop and promote trade, commerce, industry, and employment opportunities. See OCGA § 36-62-9.

Four JS contends that the sale of the Property by the Authority at less than fair market value would nevertheless fail to comply with OCGA § 36-62-6 (a) (7.1). OCGA § 36-62-6 (a) (7) provides that an authority has the power:

Except as otherwise provided in paragraph (7.1) of this Code section, to dispose of any real property for fair market value, regardless of prior development of such property as a project, whenever the board of directors of the authority may deem such disposition to be in the best interests of the authority if the board of directors of the authority prior to such disposition shall determine that such real property no longer can be used advantageously as a project for the development of trade, commerce, industry, and employment opportunities.

(Emphasis supplied.)

OCGA § 36-62-6 (a) (7.1) provides that an authority has the power:

Notwithstanding any other provision of this chapter to the contrary, to dispose of any real property for fair market value or any amount below fair market value as determined by the board of directors of the authority, regardless of prior development of such property as a project, whenever the board of directors of the authority may deem such disposition to be in the best interests of the authority if the board of directors of the authority prior to such disposition shall determine that such real property no longer can be used advantageously as a project for the development of trade, commerce, industry, and employment opportunities and if title to such real property is to be transferred to the state.

(Emphasis supplied.)

The plain language of the Act refutes Four JS’s argument that OCGA § 36-62-6 (a) (7.1) divides all dispositions of real property by an authority into two categories, those that must be for fair market value, and those that may be for less than fair market value and require a declaration by the board of the authority that the real property can no longer be used advantageously as a project. Rather, reading subsections (a) (7) and (a) (7.1) together, those subsections provide that an authority may sell real property at fair market value, without specific restriction as to the purchaser, or it may sell real property to the State at or below fair market value, but, in either case, only when “the board of directors of the authority prior to such disposition shall determine that such real property no longer can be used advantageously as a project for the development of trade, commerce, industry, and employment opportunities.” OCGA § 36-62-6 (a) (7) and (a) (7.1). Because, as Four JS concedes, the subject sale is for a project under the Act, and the board has not determined that the Property cannot be used as a project, the Sale Agreement does not come within OCGA § 36-62-6 (a) (7) or (a) (7.1).

To put the foregoing in more general terms, the Act sets forth a statutory scheme which differentiates between real property used (or to be used) as a project and real property which an authority’s board determines cannot be used as a project. A sale by an authority of the latter would not come within the Act’s purpose of developing and promoting trade, commerce, industry, and employment opportunities but is expressly allowed under conditions which require sales of such property to be made at fair market value to parties other than the State. Thus, Four JS is not entitled to relief on the ground that DAC’s agreement to sell the Property at less than fair market value “for a project,” as the petition alleges, constituted a violation of OCGA § 36-62-6. It follows that the trial court erred in denying DAC’s motion to dismiss the petition.

2. As the trial court erred in denying DAC’s motion to dismiss the petition, it also erred in granting Four JS’s request for a preliminary injunction on the basis that it was substantially likely that DAC’s sale of Property at less than fair market value would violate OCGA § 36-62-6 (a) (7.1). See generally Meinhardt v. Christianson, 289 Ga. App. 238, 243 (2) (b) (656 SE2d 568) (2008) (order ruling on motion for interlocutory injunction could not be affirmed as it rested on an erroneous legal theory).

Judgment reversed.

Branch and Mercier, JJ., concur.

Decided March 2, 2017.

Buchanan & Land, Jerry A. Buchanan, Benjamin A. Land, Shannon F. Land, for appellant.

Waldrep Mullin & Callahan, Joseph L. Waldrep, C. Morris Mullin, for appellee.

Kelly J. Long Pridgen, G. Joseph Scheuer, amici curiae.

       In its appellate brief, Four JS also suggests that the Sale Agreement violated the constitutional prohibition against gifts and gratuities. See Ga. Const. of 1983, Art. III, Sec. VI, Par. VI (a) (1) (“Except as otherwise provided in the Constitution, (1) the General Assembly shall not have the power to grant any donation or gratuity or to forgive any debt or obligation owing to the public_”). However, the trial court made no finding touching upon this question, which was not raised by the petition, and we do not reach the issue here. See Lowery v. Atlanta Heart Assoc., 266 Ga. App. 402, 404 (2) (597 SE2d 494) (2004).

       Under the Act, a “project” is defined to include, among other things, “Hotel and motel facilities for lodging which also may provide meals, provided that such facilities are constructed in connection with and adjacent to convention, sports, or trade show facilities.” OCGA § 36-62-2 (6) (H) (vi).

       Nor would a sale of the Property at less than fair market value be inconsistent with OCGA § 36-62-7. That provision provides that a project acquired under the Act shall not be operated by an authority or any municipal corporation, county, or other governmental subdivision, and must be leased, sold, or managed by, one or more persons, firms, or private corporations, but provides no requirement that any such sale be made at fair market value. See Sherman v. Dev. Auth. of Fulton County, 317 Ga. App. 345, 348 (2) n. 12 (730 SE2d 113) (2012) (“The projects developed pursuant to the Act must be leased to, sold to, or managed by a private entity. OCGA § 36-62-7.”). On the other hand, “[a]ny disposition of real property by an authority pursuant to paragraph (7) of Code Section 36-62-6 shall be made to one or more persons, firms, corporations, or governmental or public entities.” OCGA § 36-62-7. As explained supra, a sale under OCGA § 36-62-6 (a) (7) must follow the determination by the board that the real property cannot be used as a project, which is consistent with the provisions of OCGA § 36-62-7 providing that such a sale may be made to governmental or public entities, whereas a sale of a project must be to a private entity.


author: Bethel, Judge.

text:
    A16A1759.
    SWINT et al. v. MAE et al.
    (798 SE2d 23)
   Bethel, Judge.

Fritz and Melissa Swint (“Plaintiffs”) brought a medical malpractice action against multiple medical providers including Tonya Mae, M.D. (“Dr. Mae”), and Pamela Roy, R.N. (“Nurse Roy”) (collectively, the “Defendants”), alleging the doctors and nurse breached the standard of care owed to Mr. Swint in failing to correctly position and/or reposition him prior to and during surgery, which resulted in permanent injury to his right arm. Defendants moved for summary judgment on the grounds that Plaintiffs failed to present sufficient evidence of causation. After arguments, the trial court entered an order granting summary judgment to Defendants, and this appeal followed.

Plaintiffs argue the trial court erred by holding that there was no evidence in the record that Defendants proximately caused any injury to Mr. Swint, by mischaracterizing Plaintiffs’ causation expert’s testimony, and by misapplying the standard for medical causation. We disagree and affirm for reasons explained below.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of Ison.” Anthony v. Chambless, 231 Ga. App. 657, 658 (1) (500 SE2d 402) (1998) (citation omitted). “A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff ⅛ case.” Id. (citation, punctuation and emphasis omitted). “Further, any doubts on the existence of a genuine issue of material fact are resolved against the movant[.]” Knight v. Roberts, 316 Ga. App. 599, 601 (730 SE2d 78) (2012) (citation and punctuation omitted). “On appeal from a grant of a motion of summary judgment, we review the evidence de novo . . . to determine whether the trial court erred in concluding that no genuine issue of fact remains and that the moving party is entitled to judgment as a matter of law.” Allen v. Family Med. Center, 287 Ga. App. 522, 522 (652 SE2d 173) (2007) (citation and punctuation omitted).

So viewed, the evidence shows that on December 3, 2009, Mr. Swint underwent a surgical procedure known as a robotic-assisted laparoscopic prostatectomy (“RALP”) performed by Dr. Alphonse and proctored by Dr. Raymond Pak (“Dr. Pak”). Dr. Mae was the attending anesthesiologist, and Nurse Roy was the circulating nurse during the surgery. The RALP procedure required Mr. Swint to be positioned in the lithotomy in a steep Trendelenburg position, with his left and right arms tucked to his side. Dr. Alphonse and Dr. Pak positioned Mr. Swint’s body using Dr. Pak’s method of wrapping the patient’s body with sheets and towel clips, without the assistance of Dr. Mae and Nurse Roy Once Mr. Swint was positioned by Dr. Alphonse and Dr. Pak, Dr. Mae tilted the operating table into the steep Trendelenburg position to the level approved by the surgeons. The surgery, conducted by Dr. Alphonse, lasted approximately 9 hours and 21 minutes. At no time during the surgery did Defendants suggest or attempt to reposition Mr. Swint’s body. Mr. Swint’s body remained in the same position throughout the entire procedure.

After surgery, Defendants took Mr. Swint to a post-surgery recovery room where he complained of pain in both shoulders and arms. Mr. Swint was diagnosed with compartment syndrome in his right arm the following day, and underwent surgery to relieve the pressure. Following surgery, Mr. Swint did not regain complete use of his right arm and hand.

1. Plaintiffs allege the combined negligence of Defendants and Dr. Alphonse in failing to properly position Mr. Swint’s body initially and/or in failing to reposition Mr. Swint’s body during the surgery is the proximate cause of his right arm injury. “To recover in a medical malpractice case, a plaintiff must show not only a violation of the applicable medical standard of care but also that the purported violation or deviation from the proper standard of care is the proximate cause of the injury sustained.” Berrell v. Hamilton, 260 Ga. App. 892, 896 (581 SE2d 398) (2003) (citation omitted). Amere showing of negligence without proof of causation is insufficient to withstand summary judgment. Estate of Patterson v. Fulton-DeKalb Hosp. Auth., 233 Ga. App. 706, 709 (2) (505 SE2d 232) (1998).

Causation is established through expert testimony “because the question of whether the alleged professional negligence caused the plaintiff’s injury is generally one for specialized expert knowledge[.]” Knight, 316 Ga. App. at 604 (1) (a) (punctuation omitted) (quoting Zwiren v. Thompson, 276 Ga. 498, 500 (578 SE2d 862) (2003)). The expert must state his or her opinion regarding proximate causation in terms stronger than that of medical possibility — e.g., a reasonable degree of medical certainty or reasonable medical probability. Knight, 316 Ga. App. at 604 (1) (a). The use of the magic words “reasonable degree of medical certainty” is not required and causation may be established by linking the testimony of several different, experts. Allen, 287 Ga. App. at 524 (1); see also Knight, 316 Ga. App. at 607 (1) (a). This means that Plaintiffs were required to present expert testimony that showed to a reasonable degree of medical certainty that Defendants’ failure to adhere to the applicable standard of care caused Mr. Swint’s injury Plaintiffs failed to do so, and Defendants were entitled to judgment as a matter of law.

In support of their causation argument, Plaintiffs proffered the medical expert testimony of Dr. Kenneth Rosenfeld and Dr. Michael Palese. Dr. Rosenfeld testified that he was uncertain as to what led to Mr. Swint’s injury and that it could have been the initial positioning, the length of surgery, or both. He could not say at what point during the surgery the injury developed. Dr. Rosenfeld conceded that nothing in the medical report indicated there was any violation of the standard of care with respect to the initial positioning of Mr. Swint, however he believes that malpositioning, mispositioning, or failure to reposition — one or a combination of those reasons — caused the injury and directly relates to the shared responsibilities of the parties. Dr. Rosenfeld opined that Defendants breached their respective duties by failing to “[ijnsist with the team in the operating room that the patient be repositioned[,]” and that “had the anesthesiologist insisted that the patient be taken out of the position that they [sic] were in for such a long period of time, that this injury [compartment syndrome] may very well have been and probably would have been either avoided or lessened to some degree[.]” For Dr. Rosenfeld, Mr. Swint’s development of compartment syndrome informed his opinion that there was a positioning problem.

Plaintiffs also point to the deposition testimony of Dr. Palese, who believes Mr. Swint began developing compartment syndrome approximately four to five hours into the surgery Dr. Palese testified that Mr. Swint was initially positioned in a manner which caused pressure on the upper extremities in such a way that it more likely than not contributed to Mr. Swint’s development of compartment syndrome. Furthermore, Dr. Palese testified that positioning is one factor that can contribute to the development of compartment syndrome but that it is possible for the condition to occur following a RALP absent a deviation from the standard of care. Dr. Palese criticized only the length of the procedure, but conceded that repositioning a patient does not eliminate positional injuries, as Mr. Swint could have developed compartment syndrome prior to repositioning. Dr. Palese did not opine as to Dr. Mae or Nurse Roy’s care. Both experts testified that they had never read anything about repositioning a patient simply because of the length of the procedure, were not aware of any medical literature prior to 2010 that directly advocated repositioning patients undergoing a robotic-assisted procedure in the steep Trendelenburg position, and were not familiar with any literature or statistics on the amount or degree by which the risk of developing compartment syndrome is lessened when a patient is repositioned.

The trial court found the experts’ causation testimony legally insufficient to establish that Defendants caused Mr. Swint’s injury “In presenting an opinion on causation, the expert is required to ‘express some basis for both the confidence with which his conclusion is formed, and the probability that his conclusion is accurate.’ ” Zwiren, 276 Ga. at 501 (citation omitted). The expert also meets this requirement by stating that the only apparent cause of the plaintiff’s injury was the defendant’s action, Killingsworth u. Poon, 167 Ga. App. 653, 657 (307 SE2d 123) (1983); or if the expert presents “overwhelming” testimony of experience that, in the absence of the alleged negligence, the patient’s condition could have been prevented from worsening. Lee v. Satilla Health Svcs., 220 Ga. App. 885, 888 (2) (470 SE2d 461) (1996).

As it relates to Mr. Swint’s initial positioning, neither expert opined to any degree of medical certainty that the initial positioning caused the injury. At best, Dr. Rosenfeld opined that the initial positioning in some likelihood contributed to the injury, but could not say how much it contributed. Further, both Dr. Rosenfeld and Dr. Palese conceded that there was nothing in Nurse Roy’s report that indicated there was any violation of the standard of care with respect to the initial positioning of Mr. Swint. This Court has previously found expert testimony alleging that a defendant’s negligence “may have contributed” to the injury insufficient to withstand summary judgment. See Cannon v. Jeffries, 250 Ga. App. 371, 372-373 (1) (551 SE2d 777) (2001) (summary judgment affirmed where expert testified the defendant’s negligence “may have contributed” to the injury but conceded that the injury may have possibly been caused by other sources not attributable to the defendants); see also Anthony, 231 Ga. App. at 659 (1) (a “bare possibility” of causing the injury complained of is not sufficient proof of causation as a matter of law); Zwiren, 276 Ga. at 501 (“Expert testimony that it was more likely that there was a possibility that the injury could have been avoided does not provide the necessary basis for the expert’s opinion on proximate cause.”) (citation and punctuation omitted); Patterson, 233 Ga. App. at 708 (2) (the expert’s testimony must be “a realistic assessment of the likelihood that the alleged negligence caused the injury”). We agree that the combined testimony of the experts does not create a genuine issue of fact that Mr. Swint’s initial positioning caused the injury.

With respect to repositioning, even if Plaintiffs had proven Defendants were negligent for failing to insist on repositioning, Plaintiffs were also required to show causation by more than a mere possibility that such insistence by Defendants would have avoided the injury. Bowling v. Foster, 254 Ga. App. 374, 378 (1) (a) (562 SE2d 776) (2002) (“Negligence alone is insufficient to sustain recovery It must be proven that the injury complained of proximately resulted from a want of care or skill.”) (citation and punctuation omitted). Dr. Rosenfeld’s opinion omits the causal link necessary to show that Defendants’ insistence that Mr. Swint be repositioned would have changed the outcome. Hudson v. Swain, 282 Ga. App. 718, 721 (639 SE2d 319) (2006) (“No matter how negligent a party maybe, if his act stands in no causal relation to the injury it is not actionable.”) (citation and punctuation omitted). Instead, Plaintiffs argue a jury can infer that Defendants’ failure to insist on repositioning caused the injury. We disagree.

To withstand summary judgment, Plaintiffs were required to come forward with some evidence showing a causal link between each Defendant’s negligence and Mr. Swint’s injury and did not do so. See Allstate Ins. Co. v. Sutton, 290 Ga. App. 154, 159-160 (3) (b) (658 SE2d 909) (2008); Magnan v. Miami Aircraft Support, 217 Ga. App. 855, 857 (2) (459 SE2d 592) (1995). We agree with the trial court that Plaintiffs failed to present sufficient evidence of causation.

2. Plaintiffs also argue the trial court misapplied the standard for medical causation by requiring Plaintiffs’ expert to speculate on what Dr. Alphonse may have done had Defendants insisted that Mr. Swint be repositioned. Plaintiffs misunderstand the trial court’s order. How Dr. Alphonse may have responded to Defendants’ insistence is immaterial to whether Plaintiffs presented sufficient evidence to show that Defendants’ failure proximately caused Mr. Swint’s injury. The trial court need only find the experts’ testimony regarding causation to be less than a reasonable medical probability in order to find it insufficient to render the Defendants liable. Beasley v. Northside Hosp., 289 Ga. App. 685, 689-690 (658 SE2d 233) (2008).

Here, the trial court determined Dr. Rosenfeld’s causation testimony amounted to a conclusory and speculative opinion — “actually, [a] guess.” The trial court further concluded that Dr. Rosenfeld’s testimony regarding Dr. Mae was not based on sufficient facts or data and fell short of the requirements established under OCGA § 24-7-702 (b). “[W]hen the basis of [an expert’s] opinion is given and it appears that it is wholly speculative or conjectural, it must follow that his opinion is without foundation and has no probative value. Speculation and conjecture by an expert is still speculation and conjecture, and will not support a verdict.” Bayfield v. Dept. of Transp., 280 Ga. 848, 850 (1) (632 SE2d 135) (2006) (citation and punctuation omitted; emphasis in original).

Decided March 6, 2017.

Edmond, Lindsay & Hoffler, Roderick E. Edmond, William J. Atkins, for appellants.

Bendin Sumrall & Ladner, B. David Ladner, Melanie S. Taylor, for appellees.

In its order, the trial court found wholly speculative and conjectural Dr. Rosenfeld’s testimony that had Defendants insisted that Dr. Alphonse reposition Mr. Swint, Dr. Alphonse would have done so, and that had he done so, Mr. Swint’s injury could have been avoided or lessened. We find no error in the trial court’s analysis.

Judgment affirmed.

Dillard, P. J., and Reese, J., concur.

       Defendants Paul Alphonse, Jr., M.D., F.A.C.S. (“Dr. Alphonse”), and Midtown Urology, PC., remain defendants and are not participants in this appeal.

       The transcript from the June 3, 2015 hearing was not included as part of the record on appeal.

       A proctor is a surgeon who is trained on a device and provides instruction on the use of the device.

       This is a position in which the patient’s head is low and the body and legs are on an elevated and inclined plane. This may be accomplished by having the patient lie flat on a bed and then elevating the foot of the bed. The head is positioned below the patient’s pelvis at an angle greater than 30 degrees.

       Dr. Palese only testified as to Dr. Alphonse’s care.

       Dr. Palese opinedthat the initial positioning “more likely than not” caused the injury, and Dr. Rosenfeld was uncertain whether it was the initial positioning, the length of surgery, or both that caused the injury.

       Plaintiffs rely on Walker v. Giles, 276 Ga. App. 632 (624 SE2d 191) (2005) to support their concurrent negligence argument that each medical provider — Dr. Alphonse and Defendants — is equally culpable for the action and inaction of the other. However, Walker makes clear that it is still the responsibility of Plaintiffs to provide evidence of causation for each tortfeasor, which can be achieved through expert testimony. Id. at 644-647 (2).

       Plaintiffs point to the trial court’s example that “if A had insisted that B do something, B probably would have done it (and that that would have avoided or lessened something else)” in support of their argument.

       There can be no recovery “where there is no showing to any reasonable degree of medical certainty that the injury could have been avoided.” Anthony, 231 Ga. App. at 659 (1) (citation and punctuation omitted).

       The statute requires the expert’s testimony to (1) be based upon sufficient facts or data; (2) be the product of reliable principles and methods; and (3) reliably apply the principles and methods to the facts of the case.


text:
    A16A2031.
    MILLER v. THE STATE.
    (798 SE2d 28)
   Bethel, Judge.

Jumarkes Lee Miller appeals from the denial of his motion for a new trial. He argues that his trial counsel was ineffective for failing to file a particularized motion to suppress evidence obtained from an illegal traffic stop and for failing to present evidence at sentencing showing his previous guilty plea was marred by constitutional and procedural violations. We disagree and affirm because the actions of Miller’s trial counsel did not fall below the objective standard of reasonableness with respect to the claimed deficiencies.

Following a conviction, we view the evidence “in the light most favorable to support the verdict,” and the defendant “no longer enjoys a presumption of innocence.” Everhart v. State, 337 Ga. App. 348, 348 (786 SE2d 866) (2016) (quoting Culver v. State, 230 Ga. App. 224, 224 (496 SE2d 292) (1998)). Additionally, in evaluating claims of ineffective assistance of counsel, we accept the trial court’s factual findings and credibility determinations unless they are clearly erroneous. Williams v. State, 316 Ga. App. 383, 383 (729 SE2d 517) (2012). So viewed, the evidence shows that on the evening of May 13, 2012, Miller entered a convenience store wearing a black mask and dark hooded sweatshirt and pointed a gun at the clerk, demanding money from the cash register. The clerk put the money into a bag, and the store supervisor testified that several packs of lottery tickets and nearly $700 in cash had been taken.

Miller then instructed the female clerk to accompany him to the back of the store for the stated purpose of deactivating the surveillance cameras. While in the back of the store, Miller touched the clerk’s buttocks and began unbuttoning the front of her pants. This conduct ceased when a customer entered the store, and Miller directed the clerk to go take care of the customer. Miller then fled the premises.

Shortly thereafter, local law enforcement was alerted to “be on the lookout” (“BOLO”) for a white sports utility vehicle (“SUV”) that had been seen in the vicinity of the crime. A law enforcement officer who was conducting traffic enforcement through the use of a laser device (though his certification to do so had allegedly lapsed) detected a white SUV exceeding the speed limit. Having received the BOLO and in light of the speed reading from his laser device, the officer stopped the white SUV that was being driven by Miller. Upon approaching the vehicle, the officer noted that Miller matched the description of the perpetrator who had robbed the convenience store and observed a ski mask hanging out of Miller’s pocket. Looking through the front passenger window of the vehicle, another officer identified several items consistent with the crime in the front seat. After obtaining a warrant, police found a pellet gun, lottery tickets from the convenience store, and a black bag containing cash in Miller’s vehicle. Miller was found guilty of armed robbery, kidnapping, false imprisonment, and sexual battery following a jury trial.

Miller’s trial counsel employed an investigator in support of her defense preparation. The investigator generally handled the investigation of issues associated with the certification of law enforcement officers. Defense counsel did not indicate that she was aware that the officer who stopped Miller had allegedly failed to obtain his re-certification to use the laser speed detection device.

During the sentencing hearing, the State introduced evidence of Miller’s prior guilty plea for felony armed robbery in the United States District Court for the District of South Carolina (the “District Court conviction”). Miller’s trial counsel objected, stating that there was no indication that Miller was advised of his Boykin rights. Boykin v. Alabama, 395 U. S. 238 (89 SCt 1709, 23 LE2d 274) (1969).The trial court considered the conviction in sentencing anyway, and Miller filed a motion for a new trial, which the trial court denied following a hearing. Miller appeals.

“In reviewing a trial court’s ruling on an ineffective assistance of counsel claim, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” Williams, 316 Ga. App. at 383 (citation and punctuation omitted). To prevail on a claim of ineffective assistance of trial counsel, Miller bears the burden of showing that trial counsel was deficient — that is, that trial counsel performed her duties “in an objectively unreasonable way, considering all the circumstances, and in the light of prevailing professional norms.” State v. Mobley, 296 Ga. 876, 876 (770 SE2d 1) (2015) (citation omitted). This is no easy showing. As the United States Supreme Court has explained:

Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time .... There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.

Strickland v. Washington, 466 U. S. 668, 689 (III) (A) (104 SCt 2052, 80 LE2d 674) (1984) (citations omitted). The law recognizes a strong presumption that trial counsel performed reasonably, and Miller has the burden of overcoming this presumption. Mobley, 296 Ga. at 877. To carry that burden, Miller had to show that no reasonable lawyer would have done what his lawyer did or would have failed to do what his lawyer did not, or put another way, that his lawyer made errors so serious that she was not functioning as the counsel guaranteed by the Sixth Amendment. Id. And most critically here, Miller must “show these things by competent evidence, for a silent or ambiguous record is not sufficient to overcome the strong presumption of reasonable performance.” Id. (citation omitted; emphasis supplied).

The defendant must also show that he was so prejudiced by the deficiency “as to create a reasonable probability that but for counsel’s errors, the outcome of the trial would have been different,. Failure to satisfy both requirements is fatal to an ineffectiveness claim.” Ever-hart, 337 Ga. App. at 353 (3) (punctuation omitted) (quoting Mitchell v. State, 250 Ga. App. 292, 295-296 (2) (551 SE2d 404) (2001)). Finally, this Court will affirm a trial court’s ruling on a claim of ineffective assistance of counsel unless it is clearly erroneous. Cray v. State, 291 Ga. App. 609, 611 (1) (662 SE2d 365) (2008).

1. Miller first argues that his trial counsel erred by failing to file a particularized motion to suppress evidence that resulted from an allegedly illegal traffic stop. More specifically, Miller argues that because the police officer conducting the traffic stop had a lapsed laser certification, he was not authorized to stop Miller. Further, any evidence obtained from that illegal stop was an unconstitutional seizure and should have been suppressed. Assuming without deciding that the stop was illegal, we do not find that Miller’s trial counsel was ineffective for failing to file a motion to suppress.

We are not passing upon whether a motion to suppress would have prevailed if its denial were appealed to this Court. Rather, we are reviewing a claim of ineffective assistance of counsel. As such, we are compelled to evaluate the reasonableness of trial counsel’s actions in choosing not to file a motion to suppress. At the hearing on Miller’s motion for a new trial, Miller’s trial counsel testified that she chose not to file a motion to suppress because she did not feel there were adequate legal grounds to do so. And while she conceded that she could not recall whether she or anyone in her office investigated the arresting officer’s laser re-certification, her office investigator was “very thorough in keeping track of those issues” because the office handles “a lot of cases . . . that involve those same officers.” Trial counsel’s reliance on her investigator to flag any issues with respect to the officer’s certification was sufficient, even though he did not uncover the alleged lapse, and it does not constitute a failure to make a reasonable investigation that would constitute ineffective assistance of counsel. See Poole v. State, 291 Ga. 848, 858 (8) (734 SE2d 1) (2012).

[Strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all circumstances, applying a heavy measure of deference to counsel’s judgments.

Wiggins v. Smith, 539 U. S. 510, 521-522 (II) (A) (123 SCt 2527, 156 LE2d 471) (2003) (citation and punctuation omitted). Miller failed to carry his burden in showing that he received ineffective assistance because he could not present sufficient evidence that his trial counsel’s failure to file a motion to suppress was unreasonable. Mobley, 296 Ga. at 877-878.

Decided March 6, 2017.

Lacis Law, Iuars Lacis, for appellant.

J. Bradley Smith, District Attorney, Joseph S. Bennett III, Assistant District Attorney, for appellee.

2. Miller next argues that he received ineffective assistance when his trial counsel failed to present evidence at sentencing that showed that Miller’s District Court conviction was marred by constitutional and procedural violations. In particular, Miller argues that his trial counsel erred by failing to obtain the plea transcript necessary to support his challenge during sentencing that he was not adequately advised of his Boykin rights with respect to that plea. We disagree and find that Miller’s trial counsel exercised proper diligence in attempting to obtain the pertinent information.

“The constitutional right to the assistance of counsel means counsel who renders reasonably effective assistance, not errorless counsel and not counsel judged ineffective by hindsight.” Fegan u. State, 154 Ga. App. 791, 792 (270 SE2d 211) (1980). Here, Miller’s trial counsel did attempt to get the transcript on the District Court conviction but was told by the clerk that it was not in the file. Trial counsel also attempted to obtain the transcript from Miller’s former counsel, but could not reach her. Nonetheless, during sentencing Miller’s trial counsel objected on the grounds that there was no indication in the record that Miller had been advised of his Boykin rights. Miller’s trial counsel was aware of the issue, objected to that effect, and made a diligent effort in attempting to obtain the pertinent transcript to support her objection. We find no error in the trial court’s determination that Miller’s counsel did not act deficiently See Smart v. State, 277 Ga. 111, 113 (5) (587 SE2d 6) (2003) (counsel was not ineffective where he made diligent efforts to locate a witness).

Judgment affirmed.

Dillard, P. J., and Reese, J., concur.