text:
    A15A1044.
    FONTAINE v. THE STATE.
    (779 SE2d 664)
   BARNES, Presiding Judge.

A jury found Michael Gene Fontaine guilty of possession of chlorophenylpiperazine, methamphetamine, morphine, and oxycodone; possession of methamphetamine with intent to distribute; two counts of possession of a firearm during the commission of a felony; and possession of a firearm by a convicted felon. Following the denial of his motion for new trial, Fontaine appeals, arguing that the trial court erred by denying his motion to suppress, that he received ineffective assistance of counsel, and that some of his convictions should have merged. Although Fontaine’s first two claims of error lack merit, we agree with his merger argument. Accordingly, we vacate his sentence and remand for resentencing.

Viewed in the light most favorable to the verdict, see Morris v. State, 322 Ga. App. 682 (1) (746 SE2d 162) (2013), the record shows that an agent from the Walker County Sheriff’s Department went to a Best Western in Fort Oglethorpe to investigate a report of a possible methamphetamine lab in room 101. He did not have a search warrant. The agent knocked on the door of room 101, and Fontaine answered. The agent told Fontaine why he was there and asked for permission to search the room, which Fontaine gave. Upon entering the room, the agent saw a woman lying on the bed and a second man, later identified as Jeffrey Williams, in the bathroom. The agent directed Fontaine and his companions to the sitting area at the front of the room while he searched the bathroom area.

The agent went immediately to the trash can located under the sink because a hotel trash can is “a common hiding place.” He picked up the trash can and found it “oddly heavy,” so he removed the bag. Under the bag, wrapped inside a shirt, the agent found a handgun, a digital scale (commonly used to weigh drugs), and a number of ziplock bags (commonly used to transport drugs). He also found pills and other substances that later tested positive for chlorophenylpiperazine, methamphetamine, morphine, and oxycodone.

Meanwhile, a second agent arrived and searched the rest of the hotel room. He found a glass pipe containing methamphetamine residue between the two mattresses on the bed and a plastic coffee mug with a digital scale hidden in a compartment in the bottom. He also found a digital camera containing images of a man’s hands inserting a glass pipe into a woman’s vagina.

The agents arrested Fontaine, searched him, and found $714 in cash inside his wallet. They read Fontaine his Miranda rights, which he waived. Fontaine then told the agents that he had met Williams and the woman at the hotel that day “in order to have a threesome exchange for methamphetamine.” When Fontaine was asked if he was selling drugs, he replied, “[Y]ou found them.” Fontaine also said that he had “swapped the firearm for methamphetamine.”

Williams, who later pled guilty to possession of methamphetamine, testified that he had taken the pictures on the digital camera, and he identified Fontaine and the woman with them in the hotel room as the people in the pictures. (In a similar vein, the second agent testified that the tattoos on the hands of the man in the pictures matched the tattoos he saw on Fontaine’s hands.) Williams further testified that he and the woman had had sex with Fontaine at the hotel that day, though he denied that the sex had been planned in advance.

1. Fontaine argues that the trial court erred by denying his motion to suppress because the first agent’s foray into the trash can exceeded the scope of the consent Fontaine had given, rendering the search invalid and tainting his subsequent custodial statements. “The intrusiveness of a consensual search — including the type, duration, and physical zone of the intrusion — is limited by the permission granted, and only that which is reasonably understood from the consent may be undertaken.” Walker v. State, 299 Ga. App. 788, 791 (2) (683 SE2d 867) (2009). Fontaine maintains that he agreed only to let the agent look for a methamphetamine lab, not scour the hotel room for narcotics.

Pretermitting whether Fontaine’s consent was limited to a search for a methamphetamine lab, the agent’s search did not exceed the reasonable scope of such a search. Although Fontaine argues on appeal that “a small trash can is unlikely to house an ‘active methamphetamine lab,’ ” the evidence at the suppression hearing indicated otherwise. On cross-examination, the following exchange occurred between defense counsel and the first agent:

Q: I know that Methamphetamine labs can be somewhat portable and small. I’ve seen them as small as like a two-liter bottle. I have heard of that before.
A: Yes.
Q: But I’m assuming that. . . the trash can that was there was a small size trash can like they typically keep in a motel room?
A: Average size for a hotel room, yes.
Q: Now, you didn’t think at that point that there could be a Methamphetamine lab in that garbage can, did you?
A: Yes, sir. There could be a Methamphetamine lab in the garbage can.
Q: There could have?
A: Yes, sir . . . [W]e work quite a number of one-pot Methamphetamine labs which you were referring to in a two-liter bottle which is also done in 16-ounce or 20-ounce Mountain Dew, Coca-Cola bottles, such as that.

In light of this evidence that a small, portable methamphetamine lab could fit inside a hotel trash can, as well as the agent’s trial testimony that trash cans are common hiding places, the trial court did not err by denying Fontaine’s motion to suppress. See Richardson v. State, 328 Ga. App. 519, 520 (1) (759 SE2d 630) (2014) (in reviewing a trial court’s ruling on a motion to suppress, we construe the evidence most favorably to uphold the court’s findings and judgment).

2. Fontaine contends that he received ineffective assistance of counsel because his lawyer failed to move to bifurcate his trial on Count 8 (possession of a firearm by a convicted felon) from the trial on the other charges. When a defendant is charged with possession of a firearm by a convicted felon along with other crimes, defense counsel should move to bifurcate the trial “absent a compelling reason to do otherwise” so that the jury can consider whether the defendant committed the other crimes “before hearing proof of the firearm possession offense and without the taint of bad character evidence.” (Footnote omitted.) Harris v. State, 252 Ga. App. 849, 851 (1) (557 SE2d 452) (2001). In light of this well-established law, the State concedes that defense counsel’s performance was deficient because he did not move for a bifurcated trial. See id.; Vann v. State, 266 Ga. App. 238, 240-241 (1) (596 SE2d 722) (2004).

To prevail on his ineffective assistance claim, however, Fontaine must show not only that counsel’s performance was deficient, but also that “the deficiency so prejudiced him that, but for counsel’s errors, the outcome of the trial likely would have been different.” (Citation omitted.) Love v. State, 305 Ga. App. 573 (699 SE2d 872) (2010). The record shows that despite defense counsel’s failure to make a motion, the court nevertheless bifurcated the trial so that the jury considered the evidence in support of Count 8 only after it had returned a verdict on the other charges. Thus, the jury’s consideration of the other charges was not tainted by unfavorable character evidence.

Fontaine nonetheless claims that he was prejudiced because the prosecutor read aloud a portion of Count 8 of the indictment, which listed Fontaine’s prior convictions, to the prospective jurors during voir dire. Voir dire was not transcribed, but at the hearing on Fontaine’s motion for new trial more than two years later, the prosecutor and defense counsel tried to reconstruct what had happened. They agreed that the prosecutor had begun reading Count 8, but the court had interrupted, called the attorneys to the bench, and told the prosecutor to stop so as not to taint the jury. At the conclusion of the motion for new trial hearing, the trial court ruled that there was no evidence that the jury had heard any information about Fontaine’s prior convictions, and it denied the motion. “The burden is on the party alleging error to show it affirmatively by the record, and when he does not do so, the judgment is assumed to be correct and must be affirmed.” (Punctuation and footnote omitted.) Gordillo v. State, 255 Ga. App. 73, 75 (3) (564 SE2d 486) (2002). In light of the lawyers’ uncertainty about how much of Count 8 was read aloud, the record does not permit a presumption that the jury was tainted.

Moreover, the State presented a highly compelling case against Fontaine. The agents found methamphetamine and other drugs, multiple digital scales, and baggies in a hotel room that he had rented; a large amount of currency in his wallet; and a picture of him inserting a methamphetamine pipe into the vagina of a woman found in the room with him. Fontaine and Williams both told the agents that Williams and the woman had had sex with Fontaine in exchange for drugs. And when the agents asked Fontaine whether he was selling drugs, Fontaine replied, “[Y]ou found them.” Due to this overwhelming evidence of Fontaine’s guilt, it is highly probable that the reading of some portion of Count 8 of the indictment to the j ury did not contribute to the verdict. See Williams v. State, 312 Ga. App. 693, 695 (2) (719 SE2d 501) (2011); Nickerson v. State, 248 Ga. App. 829, 832 (2) (a) (545 SE2d 587) (2001).

3. Fontaine argues that the trial court erred by failing to merge Count 3 (possession of methamphetamine) into Count 2 (possession of methamphetamine with intent to distribute) because the former is included in the latter as a matter of fact. Fontaine also contends that the court should have merged Counts 6 and 7, the gun possession charges associated with Counts 2 and 3. See, e.g., Wilson v. State, 295 Ga. App. 545 (1) (672 SE2d 516) (2009); Jackson v. State, 295 Ga. App. 427, 432 (4) (671 SE2d 902) (2009). The State agrees, but claims that the trial court has already corrected this error by entering an order amending the sentence to reflect the required merger.

That corrective order, however, was entered three months after Fontaine filed his notice of appeal. A trial court lacks jurisdiction to modify a sentence after the filing of a notice of appeal, and any such modification is a nullity. Brock v. State, 166 Ga. App. 649 (1) (305 SE2d 180) (1983); see also Scroggins v. State, 288 Ga. 346, 347 (703 SE2d 622) (2010) (filing of notice of appeal deprives trial court “of the power to affect the judgment appealed, so that subsequent proceedings purporting to supplement, amend, alter or modify the judgment . . . are without effect”) (citation and punctuation omitted). Because the trial court’s order purporting to modify Fontaine’s sentence is without effect, the sentence must be vacated and the case remanded for resentencing in accordance with this opinion.

Decided September 25, 2015.

Michael D. Kelley, for appellant.

Herbert E. Franklin, Jr., District Attorney, Matthew C. Brown, Assistant District Attorney, for appellee.

Judgment affirmed, sentence vacated, and case remanded for resentencing.

Ray and McMillian, JJ., concur.

       Williams testified that he and the woman had gone to the hotel to exchange a car tag and wound up having sex with Fontaine “just out of casual conversation.” The second agent, however, testified that Williams had said that “they were there to have sex with Mr. Fontaine... and repay would he given in narcotics.”

       The trial court granted Fontaine’s motion to suppress evidence found during a search of his car in the hotel parking lot.

       At the suppression hearing, the first agent testified unequivocally that when he asked for permission to search the room, he told Fontaine he was investigating a report of narcotic activity. We have held that consent to search for drugs is consent to a “full-blown search,” including the examination of items and containers. Taylor v. State, 230 Ga. App. 749, 751-752 (1) (e) (498 SE2d 113) (1998); see also Varriano v. State, 312 Ga. App. 266 (718 SE2d 14) (2011). But on cross-examination at trial, the agent agreed that he had told Fontaine he was there “on the possibility of an active methamphetamine lab,” suggesting — according to Fontaine — a more limited search.

       The trial transcript shows that defense counsel later requested that the jury he polled because a juror apparently had asked whether Fontaine had any prior convictions. Neither that question nor the court’s response to it was transcribed. Although the question indicates that at least one juror may have noticed that the prosecutor had begun reading Count 8, it also suggests that he did not read the entirety.


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A15A1373.
    SMALLWOOD v. THE STATE.
    (779 SE2d 1)
   BARNES, Presiding Judge.

Samuel Smallwood appeals his conviction for trafficking in methamphetamine and possession of drug-related items. Smallwood contends the trial court erred by failing to grant a mistrial when improper evidence came out regarding his criminal history. For the reasons that follow, we affirm.

“[W]hether to grant a motion for mistrial is within the trial court’s sound discretion, and the trial court’s exercise of that discretion will not be disturbed on appeal unless a mistrial is essential to preserve the defendant’s right to a fair trial.” (Citation and punctuation omitted.) Wynn v. State, 332 Ga. App. 429, 434 (2) (773 SE2d 393) (2015). We view the evidence on appeal “in the light most favorable to sustain the verdict.” Anthony v. State, 317 Ga. App. 807 (732 SE2d 845) (2012). So viewed, the record shows the following relevant facts.

Smallwood was traveling in a car with three other people when an officer pulled them over for a broken taillight. After the officer spoke with the passengers, he believed three out of the four were high on methamphetamine and decided to investigate further. The owner of the vehicle consented to a search, and the officer found methamphetamine or drug-related items on all of the passengers, except Smallwood. On Smallwood’s person they found $2,270 which he claimed belonged to another passenger. Underneath the car, the officers discovered two magnetic containers that held more drugs and a gun. The other three occupants of the car entered plea bargains and agreed to testify against Smallwood at trial. They testified that the drugs and money belonged to Smallwood, that he stopped at someone’s house before the drive, and that he approached the rear of the vehicle when they stopped mid-trip. During the trial, Smallwood moved for a mistrial twice alleging that improper character evidence came out through the testimony.

The jury found Smallwood guilty of trafficking in methamphetamine and the possession of drug-related objects. Smallwood moved for a new trial on the same argument of improper character evidence. The trial court denied the motion and held that the implicating evidence was not enough to make the trial unfair. Smallwood filed a timely appeal.

1. First, Smallwood contends the trial court erred by failing to grant a mistrial when character evidence regarding his criminal history came out in an audio/video recording the State played during trial. He maintains that the admission of evidence violated his right to a fair and impartial trial before an unbiased jury. We disagree.

Before trial both parties stipulated that Smallwood’s criminal history would not come into evidence. The State planned to show the audio/video recording of the traffic stop and agreed to redact any mention of Smallwood’s past criminal history including where the arresting officer asked the driver of the vehicle about Smallwood’s parole status. At trial, the State played the video during the officer’s testimony but failed to mute the tape before the officer asked about Smallwood’s parole status. Smallwood objected and moved for a mistrial on the presumption that the jury heard the officer. The parties agreed the jury never heard a response from the driver because the State immediately muted the recording, right before Smallwood’s objection. Since the audio/video recording could not be entered into the record, the trial court was unsure if the jury heard the full word “parole,” as Smallwood claimed, or just the beginning of the word, as the State claimed. It was also unsure if the question pertained to Smallwood or to another person and ultimately denied the motion for mistrial. The trial court offered to either sustain the objection, move to strike the material, or provide curative instructions, but Smallwood declined all of these options.

Generally, the character of the defendant should not come into evidence unless he chooses to put his character in issue and “[w]hen prejudicial matter is improperly placed before the jury, a mistrial is appropriate if it is essential to the preservation of the defendant’s right to a fair trial.” White v. State, 268 Ga. App. 28, 32 (4) (486 SE2d 338) (1997). The decision to grant or deny a mistrial lies within the sole discretion of the trial court and we review the court’s actions for an abuse of that discretion by looking at several factors, such as “the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.” (Citation and punctuation omitted.) Agee v. State, 279 Ga. 774, 777 (4) (621 SE2d 434) (2005). We also consider additional facts like “whether the reference to the improper character evidence is isolated and brief, whether the jury’s exposure was repeated or extensive, and whether the introduction of the objectionable evidence was inadvertent or whether it was deliberately elicited by the State.” Jackson v. State, 321 Ga. App. 607, 610 (1) (739 SE2d 86) (2013).

Looking at these factors, the trial court did not abuse its discretion in denying Smallwood’s motion for mistrial. The jury heard the word briefly during a line of questioning with a third-person witness on an audio/video recording which the State immediately muted. The jury’s exposure to the word “parole” was brief, the question was out of context, misleading, unanswered, and the State’s failure to mute the recording was “clearly inadvertent.”

Smallwood cites Johnson v. State, 275 Ga. 508, 510 (3) (570 SE2d 292) (2002), to showthatthe admitted character evidence violated his right to a fair trial. But in that case the State entered three certified copies of the defendant’s prior convictions into evidence, which seems much more prejudicial than a mention of the word “parole.” Id. The present case is more similar to Jackson, 321 Ga. App. at 612 (1), where the State unintentionally played a recording implicating the defendant. The court held that there was no reasonable probability that the statement contributed to the guilty verdict as the statement was “likely heard by the jury only once” and “was a brief, single comment made toward the end of an approximately 30 minute recording.” Id.

Furthermore, the mere mention of a defendant’s criminal history “falls short of placing his character at issue.” (Citation and punctuation omitted.) Mathis v. State, 299 Ga. App. 831, 835 (1) (c) (i) (684 SE2d 6) (2009) (upholding the denial of motion for mistrial when a witness testified the defendant said he did not want to return to jail). Reviewing the evidence in light of the above factors, we find the trial court did not abuse its discretion in denying Smallwood’s motion for mistrial.

2. Second, Smallwood contends that the trial court erred by failing to grant a mistrial when improper character evidence was introduced during witness testimony regarding the fact defendant had been in prison. We disagree.

During trial, the State asked the driver of the vehicle to explain his relationship with Smallwood by establishing they attended junior high school together and they were still acquainted. When asked if he still remained in contact with Smallwood the witness replied: “[W]e lost contact till he got out of prison two-and-a-half or three years ago or something like that.” Smallwood objected and moved for a mistrial based on admission of improper character evidence from both the recording and the witness.

The State argued that it warned all of its witnesses to avoid mention of Smallwood’s past criminal history and asked the trial court for curative instructions to remedy any prejudice. The witness claimed the State never spoke with him about his testimony or told him to avoid mentioning the fact Smallwood was incarcerated. Small-wood called the witness’s brother in support of the motion for mistrial to testify that he had been with the witness all day and no one had approached them about his testimony. On cross, he admitted that he did not hear everything the State said to his brother. The State acknowledged that it could not be positive anyone spoke with the witness but reported that it told the other witnesses, the two other passengers and a police officer, to not bring up Smallwood’s criminal history. The State also argued that the statement was not responsive to the question asked, and the court agreed the answer “was certainly not elicited by the state.” The court denied the motion, concluding that the answer about Smallwood’s prison time was not necessarily responsive to the question and agreed to give curative instructions to rectify any prejudice.

The trial court instructed the jury to disregard the witness’s testimony given immediately before Smallwood’s objection as irrelevant because “it has no bearing on this case” and “[i]t’s something that would be highly improper for you to consider.” To determine if the jurors understood, it asked the jurors to raise their hands if they felt they could not follow the instructions, and every juror kept his hand down. Next, it asked the jurors to raise their hands if they thought they could and would follow the instructions, and this time every juror raised his hand. Smallwood renewed his motion for mistrial after the curative instructions, which the court again denied.

Once again, we must review the trial court’s actions for an abuse of discretion based on the statement, the surrounding circumstances, the court’s response and other evidence in the case. Agee, 279 Ga. at 777 (4).

[M] otions for mistrial are largely in the discretion of the trial judge, especially where the cause of the motion lies in the voluntary remark of a witness not invited by the court or counsel, and, where the jury is properly instructed and the remark is not so flagrantly prejudicial as to violate the fair trial rights of the defendant, the court’s discretion will not be overturned.

Owens v. State, 250 Ga. App. 61, 61-62 (550 SE2d 464) (2001). Here, the court ruled that the State did not elicit a response about the defendant’s past criminal history, but that the witness volunteered the information. The court then supplied curative instructions.

Smallwood cites Jackson v. State, 302 Ga. App. 412 (691 SE2d 553) (2010), where two witnesses testified about the defendant’s incarceration, one directly after the other. This court reversed the denial of a motion for mistrial based on the fact that the court gave curative instructions twice in a short time span and the witnesses used the same language, “incarceration,” with clear intent after instructions otherwise. Id. at 416 (1). Thomas v. State, 322 Ga. App. 734, 741 (3) (746 SE2d 216) (2013). Smallwood’s trial is distinguished because the witness only mentioned the defendant’s past criminal history in reference to their relationship, and the court gave curative instructions only once.

Decided October 22, 2015.

Shari Gunnin, for appellant.

This case is more similar to Morgan v. State, where a witness responded that the defendant was incarcerated at some point when asked about her relationship with him. Morgan v. State, 303 Ga. App. 358, 361 (2) (693 SE2d 504) (2010). This court ruled that “[a]n unresponsive answer that impacts negatively on a defendant’s character does not improperly place the defendant’s character in issue.” Id. Here, the witness testified that he lost contact with Smallwood while he was in prison when the State attempted to ask about their relationship.

Furthermore, “no mistrial would have been granted as a nonresponsive answer that impacts negatively on a defendant’s character does not improperly place the defendant’s character in issue.” Billings v. State, 308 Ga. App. 248, 253 (4) (707 SE2d 177) (2011).

Additionally, any error that arose from the jury having heard these unsolicited passing references to Smallwood’s previous criminal entanglements was harmless in light of the overwhelming evidence against Smallwood. As noted earlier, all three of the car’s other occupants pled guilty to various offenses and testified at trial for the State. One of the passengers, who had dated Smallwood for about six months, testified that the money and drugs belonged to Smallwood. She described stopping at a house where Smallwood went in and came out with a box that looked like the one containing methamphetamine that the police found under the car.

We conclude that the trial court did not abuse its discretion in denying Smallwood’s motion for mistrial because the witness’s comment was nonresponsive, brief, and the trial court provided curative instructions, and because the evidence against Smallwood was overwhelming.

Judgment affirmed.

Ray and McMillian, JJ., concur.

Lee Darragh, District Attorney, Burke O. Doherty, Assistant District Attorney, for appellee.


author: Doyle, Chief Judge.

text:
    A15A1296.
    HOWARD v. THE STATE.
    (779 SE2d 5)
   Doyle, Chief Judge.

Following a jury trial, Eugene Howard was convicted of kidnapping, armed robbery, four counts of aggravated assault, and two counts of aggravated battery. Howard appeals the denial of his subsequent motion for new trial, arguing that the evidence was insufficient to support his kidnapping conviction and that some of his convictions should have merged for sentencing. For the reasons that follow, we reverse his conviction for kidnapping and affirm his remaining convictions and sentence.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence. We determine only whether the evidence authorized the jury to find the defendant guilty beyond a reasonable doubt, and in doing so we neither weigh that evidence nor judge the credibility of the witnesses.

So viewed, the record shows that Howard committed the crimes for which he was convicted with a co-defendant, Chris Thomas. Although Howard and Thomas were tried separately, the evidence admitted at their respective trials was essentially the same. Thus, as contained in the factual recitation in this Court’s opinion in Thomas’s case,

the evidence adduced at trial showed that Pastor Ralph E. Davis operated a gospel music radio station in Effingham County. Davis testified that on December 4, 2006, he had just finished a live broadcast when someone came up from behind and put an arm around his neck, placing him in a “death” choke.... Davis testified that as he remained in the choke hold, another person threw bleach into his eyes; however, because of the angle from which it was thrown, he was blinded only in his right eye.
At that point, [Davis] started to fight back. He planted his feet and shot straight back at the person who had him in the choke hold and a struggle ensued. As he continued to struggle on the floor, one of the assailants tried to get duct tape around his eyes. . . . [D]uct tape [was] wound multiple times around his eyes [and] placed across his mouth and ankles [, and] [h]is wrists were bound with duct tape and [wire].
Davis’s assailants then proceeded to “torture” him for the next several hours. At various points Davis had plastic bags placed over his head to suffocate him, he was beat[en] in the head with a hammer until he was unconscious [,] and a cord was wrapped around his head. Davis raised his arms for protection while he was being hit with the hammer, causing broken bones and severe injuries to his hands, severing the end of one finger and breaking others. ... At some point[,] Davis’s right hand was sliced with a sharp objectf,] and then the blade of the object was pushed against his jugular vein, but the blade broke. Davis testified that... his assailants also said they were going to kill him. Davis further testified that his assailants took his wallet, money and car keys. They also kept asking him where the transmitter for the station was located.
Davis testified that his attackers left after several hours [,] and he eventually was able to partially free himself. He was able to locate a cell phone but had not yet called for help when he saw a man, later identified as ... Howard, walk by the window. Davis said Howard had been in the station several days earlier, asking him to pray for his mother. Davis noticed that Howard had [Davis’s] keys in his hand, which Davis recognized because of a device he had put on the key ring to attach it to his belt loop. Howard came back inside the studio, but [fled] when Davis, who was holding the cell phone in his hand, told Howard that he had dialed 911 and the police were on their way.
Howard had provided an address for his mother when he talked to Davis about praying for her, and after police learned that Howard also lived there they obtained a warrant to search the residence. [A] pair of brown Carhartt coveralls [matching Davis’s description], which appeared to have bleach and blood on them, were found during the search of Howard’s room. Officers also found a notebook which gave details about taking over the radio station and changing the format to “urban.” The garbage outside the residence was also searched, and officers found a glove with a raised dot pattern that matched prints obtained from the scene; the glove was [stained with] what DNA testing later identified as Davis’s blood. Davis’s wallet and keys, as well as shoes that matched an impression that was found on top of one of the desks in the radio station [,] were also found in the garbage can.

At the conclusion of the trial, the jury found Howard guilty of kidnapping, armed robbery, four counts of aggravated assault, and two counts of aggravated battery. The trial court denied his subsequent motion for new trial, and this appeal followed.

1. Howard argues that there was insufficient evidence to support the asportation element of his conviction for kidnapping under the test set forth in Garza v. State. We agree.

The crimes in this case occurred in 2006, and Howard’s trial was in 2007. At that time, OCGA § 16-5-40 (a) provided: “A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.” In Garza, the Supreme Court of Georgia

overruled prior law regarding the need for only slight movement to satisfy the asportation element of kidnapping and set out four factors to determine whether the asportation element was met: (1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.

“The [Garza] test was designed to determine whether the movement was one ‘serving to substantially isolate the victim from protection or rescue — or merely a ‘criminologically insignificant circumstance’ attendant to some other crime.’ ”

Here, the movement occurred after Davis was grabbed by the throat from behind and he began to fight back. After Davis shot back in the chair, one of the assailants pulled him out of the chair. Davis explained that he “was trying to take both [assailants] out of the studio into the foyer[, and his] ultimate goal. . . would have been to get to the door . . . [b]ecause [it] was still unlocked.” After the assailants forced Davis to the ground, he “ma[de his] move to the doorway...[,] and he was part-way across the doorway into the other room when” one of the men brought him to the ground.

Davis’s movements during his attempt to reach the doorway and escape were not performed by the assailants, who immediately returned him to the studio room. And although the assailants bound Davis’s wrists and ankles and forced him to the floor, the movement was of minimal duration, and

we cannot say that the movement served to “substantially isolate” Davis from protection or rescue; rather, it appears to us that it was merely a “criminologically insignificant circumstance” attendant to the assaults being committed against him. Thus[,] we agree with [Howard] that the movement here did not constitute asportation under the applicable test as enunciated in Garza, and his conviction for kidnapping must be reversed.

2. Howard contends that the trial court erred by failing to merge his convictions for (a) aggravated assault with a deadly weapon and aggravated assault with intent to murder; and (b) aggravated assault with an object likely to result in serious bodily injury and aggravated battery. We disagree.

“Georgia law bars conviction for a crime that arises from the same criminal conduct included as a matter of fact or as a matter of law in another crime for which the defendant has been convicted.”

When the same act or transaction violates two statutes, we apply the “required evidence” test adopted in Drinkard v. Walker, [] to determine whether one crime is included in the other under OCGA § 16-1-6(1). Underthe required evidence test, neither offense is included in the other if each statutory provision requires proof of a fact which the other does not. Consequently, when each of two statutes requires proof of an additional fact which the other does not, an acquittal or conviction under one statute does not exempt the defendant from prosecution and punishment under the other, even though the charges are based on a single act. In applying the required evidence test, we consider the crimes as indicted and not every possible manner of committing a particular crime.

Here, Count 3 charged Howard with aggravated assault with a deadly weapon, “a knife, box cutter[,] or other sharp-edged instrument ... by slashing . . . Davis’[s] neck with said instrument. . . .” Count 7 charged Howard with aggravated assault “with intent to murder with a knife, box cutter[,] or other sharp [-] edged instrument, which when used offensively against a person, is likely to or actually does result in serious bodily injury, by slashing [Davis’s] neck with said instrument. . . .” Count 4 charged Howard with aggravated assault with a deadly weapon, “a hammer [,] by repeatedly striking [Davis’s] hand with said hammer....” Count 6 charged Howard with aggravated battery by “unlawfully [and] maliciously causing] bodily harm to ... Davis by rendering... his finger[ ] useless by repeatedly striking his finger with a hammer. . . .”

(a) Under the required evidence test, Howard’s two aggravated assault convictions (Counts 3 and 7) did not merge. As alleged in the indictment, aggravated assault with intent to murder (Count 7) required the State to prove that Howard intended to kill Davis, which the State was not required to prove for the charge of aggravated assault with a deadly weapon (Count 3), and aggravated assault with a deadly weapon required the State to prove that Howard used a deadly weapon, “a knife, box-cutter[,] or other sharp-edged instrument,” which the State did not have to prove for the conviction of aggravated assault with intent to murder. Accordingly, the trial court did not err by declining to merge Counts 3 and 7.

Decided October 23, 2015.

Trotter Jones, James S. V. Weston, for appellant.

Richard A. Mallard, District Attorney, Brian A. Deal, Assistant District Attorney, for appellee.

(b) Similarly, under the required evidence test, Howard’s convictions for aggravated assault (Count 4) and aggravated battery (Count 6) did not merge. As alleged in the indictment, aggravated battery required the State to prove that Howard rendered a member of Davis’s body useless, which the State did not have to prove for the conviction of aggravated assault with a deadly weapon. And aggravated assault with an offensive weapon required the State to prove that Howard used a hammer, an object likely to result in serious bodily injury, which the State did not have to prove for the aggravated battery conviction. Therefore, the trial court did not err by declining to merge Counts 4 and 6.

Judgment affirmed in part and reversed in part.

Phipps, P. J., and Boggs, J., concur.

       (Punctuation omitted.) Morales v. State, 332 Ga. App. 794 (1) (775 SE2d 168) (2015).

        Thomas v. State, 310 Ga. App. 404, 404-406 (714 SE2d 37) (2011) (physical precedent only), disapproved by Gipson v. State, 332 Ga. App. 309, 320 (7) (b), n. 8 (772 SE2d 402) (2015).

       284 Ga. 696 (670 SE2d 73) (2008), supersededby statute as explainedby Gonzalez v. Hart, 297 Ga. 670, 672, n. 3 (777 SE2d 456) (2015).

       (Punctuation omitted.) Hammond v. State, 289 Ga. 142, 143 (710 SE2d 124) (2011) (“After [the Supreme Court of Georgia’s] decision in Garza, the legislature amended the kidnapping statute, effective July 1, 2009. The amendment provided once again that slight movement is sufficient to prove kidnapping as long as the movement was not incidental to another offense.”) (footnote omitted), citing Garza, 284 Ga. at 702 (1).

       (Punctuation omitted.) Thomas, 310 Ga. App. at 407 (2), quoting Garza, 284 Ga. at 702 (1).

        Thomas, 310 Ga. App. at 408 (2), quoting Garza, 284 Ga. at 702(1). See also Gonzalez, 297 Ga. at 673, 674 (no asportation because the act of pulling the victim by the hair and back from the door was of “minimal duration,” “was part and parcel of one violent event,” and did not “present[ ] a significant danger to her that was independent of the family violence battery”); Hargrove v. State, 299 Ga. App. 27, 29-30 (1) (681 SE2d 707) (2009) (no asportation because movement of the victim occurred in furtherance of ongoing crimes); Rayshad v. State, 295 Ga. App. 29, 33-34 (1) (b) (670 SE2d 849) (2008) (no asportation even though one of the victims was dragged around and into another room because the movement was in furtherance of robbery).

       (Citation and punctuation omitted.) Duncan v. State, 290 Ga. App. 32, 33 (658 SE2d 780) (2008), disapproved on other grounds by Thomas v. State, 292 Ga. 429, 434 (5) (738 SE2d 571) (2013).

       281 Ga. 211 (636 SE2d 530) (2006).

       (Citations and punctuation omitted.) Gipson, 332 Ga. App. at 319 (7).

       See Thomas, 292 Ga. at 434 (5) (applying the required evidence test, rather than the unit of prosecution test, in determining whether a defendant could he convicted of aggravated assault under both OCGA § 16-5-21 (a) (1) and (a) (2) for the same act or transaction). We note that in Thomas, 310 Ga. App. at 410 (5) — the appeal of Howard’s co-defendant — this Court applied the unit of prosecution test and concluded that the defendant’s convictions for aggravated assault with a deadly weapon and aggravated assault with intent to murder merged. As this Court explained in Gipson, 332 Ga. App. at 320, n. 8, however, Thomas is physical precedent only because one of the judges concurred in the judgment only, and the application of the unit of prosecution test conflicts with the Supreme Court’s decision in (unrelated) Thomas, 292 Ga. at 434 (5).

       See OCGA § 16-5-21 (a) (1), (2) (2007).

       See Thomas, 292 Ga. at 434 (5); Gipson, 332 Ga. App. at 320 (7) (b).

       See OCGA § 16-5-24 (a) (2007).

         See OCGA §§ 16-5-24 (a); 16-5-21 (a) (2) (2007).

       See Regent v. State, 333 Ga. App. 350, 352 (1) (774 SE2d 213) (2015) (“Since aggravated assault and aggravated battery are two separate offenses with different elements of proof, the charges do not merge, and it is irrelevant that both crimes stemmed from a single act or series of continuous acts.”); Gipson, 332 Ga. App. at 319-320 (7) (a); Works v. State, 301 Ga. App. 108, 114 (6) (686 SE2d 863) (2009).


author: DOYLE, Chief Judge.

text:
    A15A1340.
    ELVINE v. THE STATE.
    (779 SE2d 10)
   DOYLE, Chief Judge.

In this interlocutory appeal, Anthony Elvine challenges the denial of his motion to suppress evidence obtained by police when he was arrested in a drug purchase sting operation. He contends that (1) police lacked probable cause to arrest him, so any evidence obtained during that arrest — including his cell phone and its contents — was inadmissible; and (2) a warrant authorizing a search of the contents of his cell phone was improperly issued based on the unlawful arrest. Because the record does not support a finding that the arresting officer had probable cause to arrest Elvine, we reverse.

[There are] three fundamental principles which must be followed when conducting an appellate review of a trial court’s ruling on a motion to suppress. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. These principles apply equally whether the trial court ruled in favor of the State or the defendant.

To the extent that “the evidence at a suppression hearing is uncontroverted and the credibility of witnesses is not in question, we conduct a de novo review of the trial court’s application of the law to the undisputed facts.”

The evidence from the suppression hearing was uncontroverted and shows that after arresting a suspect in a narcotics sting operation, a drug enforcement officer observed the suspect’s cell phone receive a text message from a person identified as “Skeet.” Skeet initiated a text message dialogue that the officer interpreted as inquiring about purchasing $325 worth of marijuana from the suspect. The officer texted Skeet back from the suspect’s cell phone and arranged to meet him at a certain convenience store to consummate the sale. The officer did not specify a time to meet. Upon arrival at the store, the officer chose a vehicle he saw parked in the parking lot and texted Skeet that he would be in that vehicle waiting for Skeet to arrive.

Shortly thereafter, as the officer observed Elvine (whom he did not know) drive past the specified vehicle to park, the officer immediately texted Skeet that he was inside the store. Elvine parked next to the specified vehicle, exited his own vehicle, and began walking into the store. Before Elvine entered the store, the officer, along with a uniformed officer, stopped Elvine, informed him he had been texting with police, and arrested him. The officer then took possession of Elvine’s cell phone and accessed its contents to confirm that the phone Elvine possessed included the text message exchange he had just had with the contact identified as Skeet.

Thereafter, the officer applied for a warrant to search the contents of Elvine’s cell phone, despite having already accessed the contents after arresting him. The officer filled out an affidavit, stating as follows:

On 09/07/2012 Anthony Elvine was taken into custody for criminal attempt to possess marijuana with intent to distribute as a result of an investigation by the Laurens County Sheriffs Office Drug Unit. During his arrest Elvine possessed a Pantech cellular phone bearing serial number 104800455219. Part of the investigation involved the interception of text messages between Elvine and law enforcement. The phone recovered from Elvine is believed to have been used as a part of the criminal attempt to possess marijuana with intent to distribute . . . and is believed to contain evidence of that violation of Georgia law, to include names and phone numbers of co-conspirators, incoming and/or outgoing phone calls, and/or text messages between co-conspirators and as well as between Elvine and law enforcement.

Based on the affidavit and the officer’s testimony, the magistrate issued the search warrant. The officer’s testimony before the magistrate was not transcribed, but the officer testified at the motion to suppress hearing that his testimony tracked what was in the affidavit. He testified that he did not specifically recall informing the magistrate that he had already accessed the contents of the cell phone.

Elvine moved to suppress the evidence obtained from the cell phone, arguing that his arrest and the warrant were unlawful. Following a hearing, the trial court denied the motion, concluding that the arrest was lawful, the on-scene search of the cell phone was unlawful, but the search warrant was still valid because the supporting affidavit contained “no mention or reliance on the content of the cell phone.” The trial court certified its ruling for immediate review, and this Court granted Elvine’s application for interlocutory review.

1. Elvine contends that the police lacked probable cause to arrest him, so any evidence arising from that arrest must be suppressed. We agree.

A warrantless arrest is constitutionally valid if at the time of the arrest the arresting officer has probable cause to believe the accused has committed or is committing an offense. Probable cause exists if the arresting officer has knowledge and reasonably trustworthy information about facts and circumstances sufficient for a prudent person to believe the accused has committed an offense.

“The State carries the burden of showing a warrantless arrest was lawful, and the existence of probable cause must be measured by current knowledge, i.e., at the moment the arrest is made and not hindsight.”

The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances----[T]he substance of all the definitions of probable cause is a reasonable ground for belief of guilt, and . . . the belief of guilt must be particularized with respect to the person to be searched or seized____To determine whether an officer had probable cause to arrest an individual, we examine the events leading up to the arrest, and then decide whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to probable cause.

In this context, “[a] ‘probability’ is less than a certainty but more than a mere suspicion or possibility.”

Here, the officer’s testimony from the suppression hearing showed that some time after the officer texted Skeet, Elvine showed up at the convenience store, parked, and began walking to the store entrance when he was arrested. It was daytime, the store was open to the public, Elvine parked in a public area, and the officer testified that he did not recall seeing Elvine reading or operating his cell phone at any time. There is no evidence that Elvine attempted to flee when he saw the officers, scanned the area for police, or otherwise engaged in any furtive movements or nervous behavior.

Further, the hearing transcript lacks evidence that the timing of Elvine’s conduct demonstrated that he was the person receiving text messages. The officer did not arrange the meeting at a specific time, which could have linked Elvine’s timely arrival with an intent to buy marijuana, nor did the officer explain how long it took Elvine to arrive at the meeting location. Also, the officer testified that “once I observed him driving by the vehicle that I had told him ... I would be in, I immediately sent him ... another text [that I was in the store] to see how he would react.” Thus, rather than showing that Elvine exited his vehicle because he received the officer’s text message, this suggests that Elvine was not waiting for instruction from a text message that caused him to exit his car and approach the store. Taken on its face, the officer’s account suggests that Elvine merely parked his vehicle and immediately began walking into the store, which is not suspicious behavior at a convenience store open to the public.

The only aspects of Elvine’s conduct that the officer identified as suspicious were the facts that (1) Elvine parked next to the vehicle that the officer, posing as a drug seller, had described as his own, and (2) the vehicle was parked in a “ride-share” area of the parking lot not normally used by general store traffic. Nevertheless, it is undisputed that the officer did not know Elvine, nor did he have a description of the person who was receiving his text messages. Elvine simply parked in a public parking area that the officer knew to be commonly used for ride shares. Thus, while the circumstances described by the officer could give rise to the suspicion or possibility that Elvine was the person sending incriminating text messages about a drug transaction, the record before us is insufficient as a matter of law to constitute probable cause to arrest Elvine for attempting a drug transaction. Under the officer’s logic, any person of any description who parked in that area around that general time (whether or not they were using their cell phone) and attempted to enter the convenience store would be subject to arrest. Such conduct, without more, simply lacks a sufficient connection to criminal culpability to support a probable cause finding. Accordingly, the trial court erred by concluding that the State carried its burden to demonstrate probable cause to arrest Elvine.

2. Because the arrest was unlawful, any evidence obtained as a result is inadmissible unless it was available to police on some independent ground. Thus, as a general matter, “the question is whether the evidence has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”

Here, the State makes no argument that Elvine consented to turning over his cell phone or allowing its search, so it is clear that the officers could not have seized Elvine’s cell phone absent the arrest. This, in and of itself, is problematic because “it was the seizure that in fact made possible the search that actually occurred.” Further, with respect to the warrant to search the contents of the cell phone, the affidavit considered by the issuing magistrate relied on evidence obtained by police pursuant to the unlawful arrest, despite the trial court’s conclusion to the contrary. The affidavit stated that “[p]art of the [current drug] investigation involved the interception of text messages between Elvine and law enforcement.” But before searching Elvine’s phone during the arrest, the officer did not know whom he was texting, nor did he know Elvine; therefore, the officer could not have known that the incriminating text messages were “between Elvine and law enforcement,” as he averred in the warrant affidavit. Thus, the trial court erred by concluding that “there was no mention or reliance on the content of the cell phone” in the affidavit supporting the search warrant. And because the warrant was premised on information obtained through the unauthorized arrest, the trial court erred by denying Elvine’s motion to suppress the evidence obtained pursuant to the arrest or the warrant.

Decided October 23, 2015.

Michael R. Lloyd, for appellant.

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

Judgment reversed.

Phipps, P. J., and Boggs, J., concur.

       (Citations and punctuation omitted.) Brown v. State, 293 Ga. 787, 802-803 (3) (b) (2) (750 SE2d 148) (2013), quoting Miller v. State, 288 Ga. 286, 286-287 (702 SE2d 888) (2010).

        Jones v. State, 291 Ga. 35, 36-37 (1) (727 SE2d 456) (2012), citing Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994). See also Barrett v. State, 289 Ga. 197, 200 (1) (709 SE2d 816) (2011) (“[T]he trial court’s findings on disputed facts will be upheld unless clearly erroneous, and its application of the law to undisputed facts is subject to de novo review.”).

       The officer testified that he believed at that time he was authorized to search the contents of Elvine’s cell phone incident to his arrest. See, e.g., Hawkins v. State, 290 Ga. 785, 786 (723 SE2d 924) (2012) (“[A] cell phone is ‘roughly analogous’ to a container that properly can be opened and searched [incident to arrest] for electronic data, similar to a traditional container that can be opened to search for tangible objects of evidence.”), abrogated by Riley v. California, _U. S._,_(IV) (134 SCt 2473, 189 LE2d 430) (2014) (holding that “a warrant is generally required before ... a [cell phone] search, even when a cell phone is seized incident to arrest”).

       (Punctuation omitted.) Devega v. State, 286 Ga. 448, 451 (4) (b) (689 SE2d 293) (2010).

       (Citation and punctuation omitted.) Jackson v. State, 191 Ga. App. 439, 441 (2) (382 SE2d 177) (1989).

       (Citations and punctuation omitted.) Maryland v. Pringle, 540 U. S. 366, 371 (124 SCt 795, 157 LE2d 769) (2003).

       (Punctuation omitted.) Bostic v. State, 332 Ga. App. 604, 606 (774 SE2d 175) (2015).

       As found by the trial court, “[t]he Defendant exited his vehicle and approached the store. At this point, the officers approached him and arrested him.”

       See, e.g., Vega v. State, 285 Ga. App. 405, 406 (1) (646 SE2d 501) (2007) (“Flight from the scene of a crime may constitute sufficient probable cause for an arrest under certain circumstances.”); Culpepper v. State, 312 Ga. App. 115, 120 (717 SE2d 698) (2011) (nervous behavior and suspect’s subtle attempt to put distance between himself and the officer were circumstances that contributed to suspicion authorizing an initial investigatory detention). Compare Brown v. State, 269 Ga. 830, 832 (2) (504 SE2d 443) (1998) (reversing grant of motion to suppress and finding lack of probable cause when officer observed nothing more than “nervousness, ... furtive attempts at concealment, and the paper which was the object of that furtive behavior.”).

       The officer described the area as a place where “people typically park ... and then they commute together... [it] is not an area where people would commonly park to go into the store.”

       Compare Gebremedhin v. State, 202 Ga. App. 811, 812 (415 SE2d 529) (1992) (probable cause supported by combination of reliable tip describing the defendant with particularity and officers’ observation of defendant, who matched the description, engage in suspicious conduct appearing to he open-air drug transactions with a lookout).

       See, e.g., Lawrence v. State, 300 Ga. App. 731, 734 (686 SE2d 352) (2009) (insufficient evidence to support probable cause), citing State v. Jones, 245 Ga. App. 763, 767 (2) (538 SE2d 819) (2000) (information possessedby officer, that defendant appeared nervous, had used drugs in the past, and was “possibly” transporting drugs, did not establish probable cause to arrest or search defendant); Holmes v. State, 252 Ga. App. 286, 288-289 (556 SE2d 189) (2001) (in context of investigatory stop, no reasonable suspicion of criminal activity where defendant, who was in an area known for drug activity and had approached officers’ vehicle in a manner often used by “crack runners or dealers,” did not attempt to evade officers or engage in any criminal activity in their presence). See also Jackson, 191 Ga. App. at 441 (2) (finding no probable cause to arrest when “[t]he only suspicious fact known to the officers when they detained appellant and the truck was that appellant was present in an area in which many drug transactions take place.”) (emphasis omitted).

       See, e.g., McNeece v. State, 246 Ga. App. 720, 723 (2) (541 SE2d 696) (2000) (in context of investigatory stop, “the detaining officer did not have the requisite particularized basis for suspecting the driver of this particular white van of criminal activity”) (punctuation omitted), citing Vansant, 264 Ga. at 321 (2) (“The officer’s lack of specific information resulted in an unreasonable governmental intrusion”). The only case cited by the State, Hawkins v. State, 307 Ga. App. 253 (704 SE2d 886) (2010), abrogated on other grounds by Riley,_U. S. at_(IV), does not support a different outcome. In that case, the defendant “arrived at the place and time of the planned meeting in a car, the officer observed her entering data into her cell phone, and he contemporaneously received a text message from her, in which she announced her arrival.” Id. at 265 (1). Those circumstances do not exist here.

        See Rashid v. State, 292 Ga. 414, 419(4) (737 SE2d 692) (2013). See also State v. Stringer, 258 Ga. 605 (372 SE2d 426) (1988) (“An arrest unsupported by probable cause and made solely for the purpose of investigating a crime in the hope that something will turn up as a result of the ensuing investigation, intrudes so severely on the interest protected by the Fourth Amendment that exclusion of the [evidence] is mandated.”).

       (Punctuation omitted.) Rashid, 292 Ga. at 419 (4).

        Wilder v. State, 290 Ga. 13, 16 (2) (717 SE2d 457) (2011).

       Compare Reaves v. State, 284 Ga. 181, 183-184 (2) (c) (664 SE2d 211) (2008) (initial warrantless search did not render evidence inadmissible because same evidence discovered after search warrant issued based on evidence gained independently of initial search).

       (Emphasis supplied.) At the suppression hearing, the officer summarized his own affidavit in a similar way: “My affidavit indicated that Mr. Elvine had been taken into custody and that he had exchanged text messages between myself and law enforcement. .. .”

       See Wilder, 290 Ga. at 16 (2); LaRue v. State, 137 Ga. App. 762, 763 (1) (224 SE2d 837) (1976).


author: Phipps, Presiding Judge.

text:
    A15A1374.
    HOBBS v. THE STATE.
    (779 SE2d 15)
   Phipps, Presiding Judge.

Alan Scott Hobbs was convicted of making terroristic threats, improperly backing a vehicle, failing to stop at or return to the scene of an accident, and reckless driving (as a lesser included offense of driving under the influence of alcohol). He appeals following the denial of his motion for new trial, asserting errors relating to the court’s instructions to the jury and to sentencing. For the reasons that follow, we affirm his convictions but vacate his sentence as to the misdemeanor counts and remand the case for resentencing.

Viewed in the light most favorable to the verdict, the evidence at trial showed the following. J. B. testified that at about 10:30 a.m. on June 1, 2006, he was test-driving a motorcycle on Belair Frontage Road when he looked in his rearview mirror and saw that a car was “right on [his] bumper.” J. B. sped up to put some distance between the two vehicles, but the car, which Hobbs was driving, continued to closely follow the motorcycle. When J. B. applied the brakes on the motorcycle, Hobbs pulled alongside him and, with the car window down, yelled, “111 f***ing kill you!” J. B. testified that Hobbs kept “shouting obscenities, telling me he’ll run me over, knock me down, kill me.” Hobbs then maneuvered his car such that it forced the motorcycle into the lane for oncoming traffic. J. B. brought the motorcycle to a stop; Hobbs pulled behind J. B. and drove his vehicle into the rear of the motorcycle. J. B. turned off the motorcycle, dismounted, and “took a few steps back, basically clearing myself from the scene.” Hobbs then backed his car up, and drove it forward over the motorcycle. J. B. ran to Hobbs’s car, reached through the window, and punched Hobbs. Hobbs backed his car up, striking a truck stopped behind him, and drove away. The police were called, and when they arrived J. B. gave officers Hobbs’s license plate number and other information. At trial, J. B. identified Hobbs as the car’s driver.

A woman testified that on the morning in question, she was in a stopped vehicle on Belair Frontage Road when she saw a car strike the rear of a motorcycle. She heard someone in the car yell, “I’m going to kill you or I’ll kill you.” The car backed up, went forward and struck the motorcycle. The driver of the motorcycle then punched the car’s driver, after which the car’s driver backed up, struck a truck behind him, and drove away.

A sheriff’s deputy testified that at about 1:00 p.m. on the same day, he located the car that witnesses had described. It was parked behind a shed at Hobbs’s residence; the car had front end damage.

Hobbs testified on his own behalf, admitting that he had struck the motorcycle from the rear, but insisted that it had been an accident. Hobbs claimed that the motorcycle driver had been the aggressor, and that he (Hobbs) had driven over the motorcycle and then fled because he was afraid that the driver was going to harm or kill him. Hobbs testified that he had not threatened to kill the driver, adding that neither of the men had said anything during the incident.

1. Although Hobbs does not challenge the sufficiency of the evidence, we find that the jury was authorized to find him guilty beyond a reasonable doubt of the offenses for which he was convicted.

2. Hobbs contends that his conviction for terroristic threats should be reversed because the trial court failed to instruct the jury on the elements of murder. He asserts that because the indictment alleged that he had committed the offense of terroristic threats by threatening to commit the offense of murder, the court was required to explain the elements of murder. This assertion presents no basis for reversal.

Hobbs did not raise any such objection to the jury charge at trial. Because the trial in this case took place in November 2007, after the effective date of OCGA § 17-8-58, Hobbs was required to inform the trial court of any specific objections to the charge before the jury retired to deliberate, and his failure to make any such objection precludes appellate review unless the jury instruction constituted plain error affecting substantial rights of the parties. There was no such error in this case.

[I]t was not necessary for the state to prove the elements of murder in order to prove the crime of terroristic threats alleged in the indictment. All the state had to do, to satisfy this part of its case, was to persuade the jury beyond a reasonable doubt that the crime communicated as a threat by the defendant was a crime of violence. . . . We doubt any juror would entertain even a temporal notion that murder was not a violent crime.

Furthermore, “reversal is not mandated where ... the charge as a whole limits the jury’s consideration to the specific manner of committing the crime alleged in the indictment.” Here, the trial court instructed the jurors that the indictment, which had been, in essence, read to them at the start of the trial, formed the issue that they had been sworn to try, and that the state had the burden of proving beyond a reasonable doubt every material allegation in the indictment. The trial court also sent the indictment out with the jury during its deliberations. These limiting instructions and procedures cured any complained-of error as to the terroristic threats jury charge. Thus, considering the jury charge as a whole, we conclude that “there is no reasonable probability that the jury convicted [Hobbs] of [committing the offense of] terroristic threats in a manner not alleged in the indictment.”

3. The trial court sentenced Hobbs to confinement for five years for making terroristic threats, twelve months for improper backing, twelve months for failure to stop at or return to the scene of an accident, and twelve months for reckless driving. Notably, each sentence imposed was within the statutory limits for the crime charged. The court ordered that all counts were to run consecutively to each other.

Hobbs contends that the sentences were improper because the court failed to exercise its discretion when it: (a) announced that, pursuant to the recidivist statute (OCGA § 17-10-7), it was required to sentence him to the maximum sentence on each count, and indeed sentenced him accordingly, when that statute is not applicable to sentencing on misdemeanor counts; and (b) ordered the sentences on all counts to run consecutively.

The interpretation of a statute is a question of law, which this court reviews de novo.

(a) Prior to trial, the state filed notice of its intent to seek recidivist sentencing pursuant to OCGA § 17-10-7 (a). During sentencing, the state introduced evidence that Hobbs had a prior felony conviction. The court then noted that, in the instant case, Hobbs had been found guilty of one felony count (terroristic threats) and three misdemeanor counts. The court inquired:

Mr. Hobbs, do you understand that the law, the recidivism notice that was served upon you and your attorney from the district attorney’s office, requires me to sentence you to the maximum to each of these offenses?

Thereafter, the court imposed the maximum sentence on each offense for which Hobbs had been found guilty.

“OCGA § 17-10-1 authorizes the trial court to sentence a defendant to any amount of time within the limits provided by law.” That statute provides in pertinent part: “[T]he judge fixing the sentence shall prescribe a determinate sentence for a specific number of months or years which shall be within the minimum and maximum sentences prescribed by law as the punishment for the crime.” Under OCGA § 17-10-3 (a), “[e]xcept as otherwise provided by law, every crime declared to be a misdemeanor shall be punished as follows: (1) By a fine... or by confinement in the county or other j ail,... for a total term not to exceed 12 months, or both.” Three of the offenses of which Hobbs was convicted are misdemeanors and, as such, punishable by a fine and/or imprisonment not to exceed twelve months.

The recidivist statute cited by the state and the court, OCGA § 17-10-7 (a), pertinently provides:

... [A]ny person who, after having been convicted of a felony offense in this state . . . commits a felony punishable by confinement in a penal institution shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he . . . stands convicted[.]

The statute specifies felony offenses, and makes no reference to misdemeanor offenses. Indeed, this court has summarized OCGA § 17-10-7 (a) as follows: “An individual who has previously been convicted of a felony shall be sentenced upon conviction of a subsequent felony to the maximum prescribed punishment for that offense... .”

We emphasize that “penal statutes are always construed strictly against the State and liberally in favor of human liberty.” Thus, even “[i]f [the] statute increasing a penalty [were] capable of two constructions, it should be construed so as to operate in favor of life and liberty.”

Here, the trial court stated that the state’s recidivism notice required it to impose the maximum sentence on each count (and sentenced Hobbs accordingly), when the recidivist statute does not require such sentencing as to misdemeanor crimes. “The trial court’s failure to exercise its discretion [as to the three misdemeanor crimes] was error, which we cannot find harmless under these circumstances.” We therefore vacate Hobbs’s sentences as to the three misdemeanor convictions and remand this case to the trial court for resentencing as to those counts.

(b) Because we are remanding the case for resentencing as to the misdemeanor counts, Hobbs’s contention that the court failed to exercise its discretion when it ordered all counts to run consecutively is rendered moot. On remand, the trial court has the authority, in exercising its discretion, to reimpose the maximum penalty as well as to impose consecutive sentencing.

Decided October 23, 2015.

Russell R. Jones, Robert L. Persse, for appellant.

Ashley Wright, District Attorney, Joshua B. Smith, Assistant District Attorney, for appellee.

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

Doyle, C. J., and Boggs, J., concur.

       OCGA § 16-11-37 (a) (pertinently providing, “Aperson commits the offense of a terroristic threat when he or she threatens to commit any crime of violence.”). Count 1 of the indictment charged that Hobbs committed the offense of terroristic threats by “threatening] to commit Murder, a crime of violence, with the purpose of terrorizing [J. B.].”

       OCGA § 40-6-240 (a) (“A driver shall not back a vehicle unless such movement can be made with safety and without interfering with other traffic.”). Count 3 charged that Hobbs committed the offense of improper backing by failing to back his vehicle in such a manner that movement could be made with safety and without interfering with other traffic.

       OCGA § 40-6-270 (a) (pertinently providing, “The driver of any vehicle involved in an accident resulting in injury to or the death of any person or in damage to a vehicle which is driven or attended by any person shall immediately stop such vehicle at the scene of the accident or shall stop as close thereto as possible and forthwith return to the scene of the accident.”). Count 4 charged Hobbs with failing to stop at or return to the scene of an accident.

       OCGA § 40-6-390 (a) (“Any person who drives any vehicle in reckless disregard for the safety of persons or property commits the offense of reckless driving.”). Count 5 charged Hobbs with driving a vehicle while under the influence of alcohol to the extent it was less safe to drive. OCGA § 40-6-391 (a) (1). (We note that Count 2 charged Hobbs with aggravated assault, but the jury was unable to reach a verdict on that count.)

       See Jones v. State, 296 Ga. 663 (1) (769 SE2d 901) (2015) (viewing the evidence in the light most favorable to the verdict where the challenge on appeal was to the jury instructions).

       See generally Williams v. State, 271 Ga. App. 755, 756 (610 SE2d 704) (2005) (terroristic threats); Jones v. State, 259 Ga. App. 506, 509 (2) (578 SE2d 165) (2003) (improper hacking); McKay v. State, 264 Ga. App. 726, 728 (1) (592 SE2d 135) (2003) (failure to stop at or return to the scene of an accident); Fraser v. State, 263 Ga. App. 764, 766 (1) (589 SE2d 329) (2003) (reckless driving).

       In its instructions to the jury at the conclusion of the trial, the court pertinently defined the offense of terroristic threats as follows: “In Count One, he’s charged with terroristic threats. A person . . . commits the offense of terroristic threats and acts when he threatens to commit any crime of violence on another person.” See OCGA § 16-11-37 (a), and footnote 1, supra.

       Ga. L. 2007, p. 595, § 5.

       See OCGA § 17-8-58 (a), (b); Loadholt v. State, 286 Ga. 402, 405 (3), n. 3 (687 SE2d 824) (2010).

        Lanthrip v. State, 235 Ga. 10, 13 (2) (218 SE2d 771) (1975); see generally Mays v. State, 317 Ga. App. 24, 28-29 (2) (730 SE2d 651) (2012) (trial court did not err hy failing to charge the jury on the definition of “malicious” in connection with the charge on aggravated battery (of which malice is an element), inasmuch as “ ‘[mjalicious,’ as applied to aggravated battery, has such obvious significance and common understanding that there is no need to define it in the jury charge”).

        Martin v. State, 303 Ga. App. 117, 121 (3) (692 SE2d 741) (2010) (citation and punctuation omitted).

       The court pertinently instructed the jury regarding the indictment at the beginning of the one-day trial: “In Count One, they’ve charged him with terroristic threats. It’s alleged that on or about June 1, 2006, Mr. Hobbs threatened to commit the crime of murder against a Mr. [J. B.].”

       See Schneider v. State, 312 Ga. App. 504, 507-508 (2) (718 SE2d 833) (2011); Machado v. State, 300 Ga. App. 459, 462-463 (5) (685 SE2d 428) (2009). Compare Milner v. State, 297 Ga. App. 859, 860-861 (1) (678 SE2d 563) (2009) (conviction reversed where court failed to give limiting instructions ensuring that the jury would find defendant guilty of terroristic threats in specific manner charged in indictment).

        Schneider, supra at 508 (2) (citations and punctuation omitted); see also Martin, supra.

       See OCGA §§ 16-11-37 (c) (pertinently providing for punishment of imprisonment for one to five years for terroristic threats); 16-1-3 (5) (defining “[fjelony” as “a crime punishable by death, by imprisonment for life, or by imprisonment for more than 12 months.”).

       See Pfeiffer v. State, 173 Ga. App. 374 (1) (326 SE2d 562) (1985) (noting that the offense of improper backing is a misdemeanor).

       See OCGA § 40-6-270 (c) (1) (A) (pertinently providing for misdemeanor treatment for a violation of OCGA § 40-6-270 (a) (duty of driver to stop at or return to scene of accident)).

       See OCGA § 40-6-390 (b) (pertinently providing that reckless driving is a misdemeanor, punishable by imprisonment not to exceed 12 months).

       See footnotes 15 through 18, supra.

        Clark v. State, 328 Ga. App. 268 (1), n. 2 (761 SE2d 826) (2014).

       OCGA § 16-1-3 (9) (defining “misdemeanor” as “any crime other than a felony’).

       (Emphasis supplied.)

        Baldwin v. State, 217 Ga. App. 866, 869 (3) (460 SE2d 80) (1995) (citation omitted).

       OCGA § 17-10-1 (a) (emphasis supplied).

       See Pfeiffer, supra (improper backing); OCGA §§ 40-6-270 (c) (1) (A) (duty to stop at or return to scene of accident); 40-6-390 (b) (reckless driving). See OCGA § 17-10-3 (b) (misdemeanors, generally).

       (Emphasis supplied.)

        Morrison v. State, 256 Ga. App. 23, 26 (5) (567 SE2d 360) (2002) (emphasis supplied).

        State v. Crossen, 328 Ga. App. 198, 201 (761 SE2d 596) (2014) (citation and punctuation omitted); see Clark, supra at 269 (1) (“[CJourts must strictly interpret penal statutes against the State.”) (citations omitted).

        Knight v. State, 243 Ga. 770, 775 (2) (257 SE2d 182) (1979) (citation omitted).

        Bradshaw v. State, 237 Ga. App. 627, 630 (2) (516 SE2d 333) (1999).

       See id.; see generally Minter v. State, 245 Ga. App. 327, 330 (5) (537 SE2d 769) (2000) (because court’s remark did not indicate a recognition of its discretion, the sentence was vacated and the case was remanded for resentencing), overruled on other grounds, Miller v. State, 285 Ga. 285 (676 SE2d 173) (2009).

        Bradshaw, supra; see Minter, supra; Osborne v. State, 318 Ga. App. 339, 342 (2) (734 SE2d 59) (2012) (“There is no constitutionally cognizable right to concurrent, rather than consecutive, sentences. Under Georgia law, whether to impose consecutive or concurrent sentences for multiple offenses is within the trial court’s discretion, so long as the sentence for each offense is within the statutory limits.”).


author: MCFADDEN, Judge. DILLARD, Judge,

text:
    A15A1089.
    RIGGS v. HIGHLAND HILLS APARTMENTS, LLC et al.
    (779 SE2d 20)
   MCFADDEN, Judge.

Todd Riggs brought this premises liability action after tripping and falling in a common area at the apartment complex where he lived. The trial court granted summary judgment to defendants Highland Hills Apartments, LLC, Sabra Property Holding, LLC, and Sabra Property Management, LLC (collectively, “the landlord”), finding that Riggs had pointed to no evidence showing either that the alleged defect — a hole in a concrete walkway — caused his fall or that the defendants had superior knowledge of the alleged defect. As detailed below, factual disputes exist as to both of these issues, precluding summary judgment, and we decline to affirm the trial court’s ruling under the “right for any reason” rule because we do not find merit in either of the landlord’s other arguments (that as a matter of law Riggs had equal knowledge of the hole and failed to exercise ordinary care, and that the landlord owed Riggs a lesser duty because as a matter of law Riggs was a trespasser because he was not named on the rental application). Accordingly, we reverse.

1. Facts and procedural history.

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

Swope v. Greenbriar Mall Ltd. Partnership, 329 Ga. App. 460 (765 SE2d 396) (2014) (citations omitted).

So construed, the evidence shows that on November 2, 2010, Riggs fell outside his apartment in a breezeway that was part of a common area under the landlord’s control. At the time, he had lived in the apartment for nearly six months. Although the apartment was leased to his son and Riggs was not listed as a “resident” in the rental application, Riggs had personally delivered rent checks, drawn on his own bank account, to the apartment complex office. The apartment complex manager lived in a neighboring unit and shared the breezeway with Riggs.

In the afternoon on the day of the fall, Riggs had parked his truck in a nearby parking lot and entered the apartment briefly to retrieve his checkbook, leaving his cellular phone on the roof of the truck. As Riggs was locking the door to his apartment, the cellular phone began to ring. Riggs began quickly moving through the breezeway toward his truck by the most direct route across a piece of carpet set outside the door of the apartment next door. As soon as Riggs stepped on the carpet, his shoe (which had a nonstick sole) gripped the carpet, he felt the ground give in, and he fell in what he later determined to be a “big chip” in the concrete under the carpet.

Riggs shattered his hip in the fall and spent several days in the hospital. Upon his release, Riggs returned to the breezeway, which was in the same condition it had been in at the time of his fall. He discovered a sharp-edged hole, approximately two inches deep and ten inches in diameter, under the carpet. The hole was not visible through the carpet. There was mold beneath the carpet and brown stain marks on the concrete around its edges, and Riggs believed that the carpet “hadn’t moved in quite a long time.” Apartment personnel believed that the carpet had been placed there by a family that had moved into that apartment unit about five months before Riggs’s fall.

In support of summary judgment, the landlord argued, among other things, that Riggs was a trespasser because he was not listed as a “resident” in the apartment agreement, and that even if he was considered an invitee the landlord had no liability because it had no knowledge of the hole and because the hole was not a hazardous condition that caused Riggs’s fall. In the summary judgment ruling, the trial court assumed without deciding that Riggs was an invitee rather than a trespasser. Applying the analysis appropriate to an invitee, the trial court concluded that the landlord was entitled to summary judgment because the evidence that the hole caused Riggs’s fall was speculative and, alternatively, because there was no evidence that the landlord knew of the hole. So we begin by reviewing the trial court’s invitee analysis.

2. Summary judgment was not appropriate under an invitee analysis.

Because the landlord had control over the breezeway in the apartment common area, OCGA § 51-3-1 governs its liability. See Patrick v. Macon Housing Auth., 250 Ga. App. 806, 809-810 (552 SE2d 455) (2001); Godwin v. Olshan, 161 Ga. App. 35, 36 (288 SE2d 850) (1982) (construing predecessor statute). Riggs argues that the landlord also is subject to liability under OCGA § 44-7-14, but that Code section deals with landlords’ responsibilities for premises of which they have “fully parted with possession and the right of possession.” See generally Lake v. APH Enterprises, 306 Ga. App. 317, 319-320 (702 SE2d 654) (2010) (discussing when landlord is subject to liability under OCGA § 44-7-14 as opposed to OCGA § 51-3-1).

Under OCGA § 51-3-1, “[w]here an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” In such cases,

[t]he plaintiff must plead and prove that: (1) the defendant had actual or constructive knowledge of the hazard; and (2) the plaintiff, despite exercising ordinary care for his or her own personal safety, lacked knowledge of the hazard due to the defendant’s actions or to conditions under the defendant’s control.

American Multi-Cinema v. Brown, 285 Ga. 442, 444 (2) (679 SE2d 25) (2009) (citation omitted). The trial court held that there was no evidence to show either causation or the landlord’s superior knowledge. We disagree.

(a) Causation.

“[C] ausation is always an essential element in slip or trip and fall cases.” Pinckney v. Covington Athletic Club & Fitness Center, 288 Ga. App. 891, 893 (655 SE2d 650) (2007) (citation omitted). When a defendant seeks summary judgment on the ground that there has been no proof of causation,

the plaintiff bears the burden of introducing evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to grant summary judgment for the defendant.

Hobday v. Galardi, 266 Ga. App. 780, 782 (598 SE2d 350) (2004) (citation omitted).

The record contains evidence from which a factfinder could conclude that the hole in the concrete floor of the apartment’s common area was more likely than not a cause in fact of Riggs’s fall. There is evidence that, at the time of the fall, there was a two-inch-deep hole beneath the carpet where Riggs stepped. Riggs testified that the conditions in the breezeway had not changed in the interim between his fall and when he looked under the carpet and saw the hole several days later. He also testified that “[a]s soon as [he] ste[p]ped on the carpet, the ground gave in and [he] fell[,]” and that he “fell in” the chipped concrete. The trial court construed Riggs’s testimony to attribute his fall to the gripping of his shoes (with their special nonstick soles) on the carpet, and the trial court viewed Riggs’s “assertions that a ‘hole’ caused him to fall to be mere after the fact speculation.” See Pennington v. WJL, LLC, 263 Ga. App. 758, 760 (1) (589 SE2d 259) (2003) (“A mere possibility of causation is not enough and when the matter remains one of pure speculation or conjecture and the probabilities are at best evenly balanced it is appropriate for the court to grant summary judgment to the defendant.”) (citation omitted). But although Riggs did testify that his shoes “just grabbed” the carpet, he did not testify that the gripping shoes caused his fall. Viewing the evidence most favorably to Riggs, as we must on summary judgment, the evidence shows that at the time of his fall Riggs both felt his shoes grip the carpet and felt the ground beneath the carpet give way. A jury could find from this evidence that the hole beneath the carpet, rather than the gripping shoes, caused the fall.

This evidence distinguishes the case from those slip- or trip-and-fall cases in which we found the evidence of causation to be too speculative to survive summary judgment. The alleged hazard in this case was specifically identified and there was evidence that it existed atthetime ofthefall. Compare Pinckney, 288 Ga. App. at 893 (finding only speculation that alleged hazard — algae on pool deck — was present when plaintiff slipped and fell, where algae was seen 12 days later and pool had been closed for repairs during interim); Moore v. Teague, 255 Ga. App. 220, 220-221 (564 SE2d 817) (2002) (plaintiff assumed she had slipped on wet floor but did not actually know if floor was wet). Moreover, Riggs did not express uncertainty about the cause of his fall but instead, in his testimony, attributed his fall to the alleged hazard and described feeling the ground give way, a sensation consistent with stepping into a hole. Compare Canaan Land Properties v. Herrington, 330 Ga. App. 17, 19-20 (1) (766 SE2d 493) (2014) (plaintiff admitted uncertainty about what caused his fall); Pinckney, 288 Ga. App. at 893 (plaintiff testified that she had no idea what caused her to fall); Pennington, 263 Ga. App. at 760 (1) (although plaintiff testified to a “feeling of falling” and assumed he had tripped on a nearby pile of hoses, he had no memory of his feet striking anything and could not say whether he had tripped at all); Shadburn v. Whitlow, 243 Ga. App. 555, 556 (533 SE2d 765) (2000) (witnesses to accident where woman fell at top of stairwell and landed on plaintiff testified that they were not certain what caused the fall). The evidence presented a jury question on whether the hole caused Riggs’s fall. See Gilbert v. Automotive Purchasing Svc., 254 Ga. App. 770, 771-772 (563 SE2d 906) (2002) (evidence that plaintiff saw streak mark where her shoe had slipped on floor and that her husband had observed industrial floor cleaner on floor was sufficient to create jury issue that dangerous condition on premises caused plaintiff’s fall).

(b) The landlord’s knowledge.

To survive summary judgment, Riggs was required to “come forward with evidence that, viewed in the most favorable light, would enable a rational trier of fact to find that the [landlord] had actual or constructive knowledge of the [hole beneath the carpet].” American Multi-Cinema, 285 Ga. at 444-445 (2). “An owner/occupier is on constructive notice of what a reasonable inspection would reveal.” Jackson v. Waffle House, 245 Ga. App. 371, 373 (1) (537 SE2d 188) (2000) (citations omitted).

The evidence in this case presented a jury question on whether a reasonable inspection would have revealed the hole to the landlord. Viewed most favorably to Riggs, the evidence authorized a finding that the carpet that covered the hole had been placed there only a few months before Riggs’s fall, when new residents moved into the neighboring apartment. Accordingly, the jury could find that, for some period of time, there was an uncovered hole in the common breezeway through which the apartment manager walked daily to access her own apartment. There also was evidence that the landlord inspected apartment units when there was a change of tenant, and the jury could find that, in this case, such an inspection would have occurred at a time when the hole in front of the apartment door was uncovered.

Even if the jury found that the hole always had been covered by the carpet, the jury still could find that the landlord had constructive knowledge of it. Although the record in this case contains evidence that the landlord conducted regular inspections of the common areas in the apartment complex, there is no evidence that such inspections included looking under the carpets or mats that residents placed in the breezeways outside their apartment doors. But the owner/occupier of property has a duty to “inspect [ ] the premises to discover possible dangerous conditions of which [it] does not have actual knowledge,” Jackson, 245 Ga. App. at 373 (1), and it is for the jury to determine whether it would be reasonable for the landlord to inspect the condition of the floor beneath carpets and mats in common areas, especially in light of evidence that at other places in the breezeway the concrete floor was worn and deteriorating. See American MultiCinema, 285 Ga. at 445 (2) (“issues such as how closely [an owner/ occupier] should monitor its premises and approaches [and] what [it] should know about the property’s condition at any given time... must be answered by juries as a matter of fact rather than by judges as a matter of law”). Although the landlord argues that such an inspection would constitute extraordinary care not required of it, see Armenise v. Adventist Health Sys./Sunbelt, 219 Ga. App. 591, 594 (466 SE2d 58) (1995), nothing in the record explains why such an effort would be extraordinary. See Yeh v. Arnold, 232 Ga. App. 725, 726 (503 SE2d 645) (1998) (where “[t]he record contains no evidence [of] any . . . explanation as to why the [hazardous condition] could not have been discovered and remedied,” jury question exists as to “whether defendant had constructive knowledge of th[e] hazard”); see also Wood v. Winn-Dixie Stores, 244 Ga. App. 187, 189 (534 SE2d 556) (2000). A jury, rather than this court, should assess the reasonableness of the landlord’s inspections.

3. The judgment need not be affirmed under the “right for any reason” rule.

In its motion for summary judgment to the trial court, the landlord also argued that Riggs had knowledge of the hole at least equal to that of the landlord, that he failed to exercise ordinary care, and that he should be viewed as a trespasser rather than an invitee on the premises. Although the “right for any reason” rule permits us to affirm a grant of summary judgment on other grounds if the movant raised the issue in the trial court and the nonmovant had fair opportunity to respond, see Georgia-Pacific v. Fields, 293 Ga. 499, 504 (2) (748 SE2d 407) (2013), none of the landlord’s other arguments has merit.

(a) Riggs’s knowledge of the hole and exercise of ordinary care.

The landlord argues that it is entitled to summary judgment because its knowledge of the hole was equal to or less than that of Riggs, who crossed the breezeway daily. See Lee v. Food Lion, 243 Ga. App. 819, 821 (534 SE2d 507) (2000). Alternatively, the landlord argues that, as a matter of law, Riggs did not exercise ordinary care when he stepped on the carpet. We disagree.

Although Riggs had noticed deteriorating concrete at other places in the breezeway, there is no evidence that he had ever seen the hole beneath the carpet in front of his neighbors’ door, and he testified that, before the day of his fall, he had never crossed the carpet that lay over the hole. “It is a plaintiff’s knowledge of the specific hazard which precipitates the [trip] and fall which is determinative, not merely [his] knowledge of generally prevailing hazardous conditions [.]” Jackson, 245 Ga. App. at 374 (2) (citation and punctuation omitted; emphasis in original). Riggs asserts that he did not see the hole and has presented evidence from which a jury could find that it would not have been conspicuous to him. “Under these circumstances, we cannot conclude that, as a matter of law, [Riggs’s] failure to see the [hole] was unreasonable or showed a lack of ordinary care.” Bullard v. Marriott Intl., 293 Ga. App. 679, 682 (667 SE2d 909) (2008) (citations omitted). See also American Multi-Cinema, 285 Ga. at 445 (2) (“issues such as... how vigilant [invitees] must be for their own safety in various settings, and where [they] should be held responsible for looking or not looking are . . . questions that, in general, must be answered by juries as a matter of fact rather than by judges as a matter of law”).

(b) Riggs’s status as a trespasser rather than an invitee.

Finally, the landlord argues that Riggs should be treated as a trespasser rather than an invitee because he was not among the authorized residents of the apartment listed on the rental application. If Riggs were deemed a trespasser, the landlord would owe him a more limited duty. See Gomez v. Julian LeCraw & Co., 269 Ga. App. 576, 578 (1) (b) (604 SE2d 532) (2004) (“A landowner owes only a minimal duty to a trespasser: to avoid wilfully or wantonly injuring him or her.”) (citations omitted). In support of its argument, the landlord points to a decision in which we held that an unauthorized resident of an apartment was a trespasser rather than an invitee. Id. at 578 (1) (a). In that case, however, we noted that the resident “offered no evidence that the landlord or its management company consented to — or even knew about — her presence in the apartment.” Id. Here, in contrast, there is evidence from which a jury could find that the landlord was aware of and tacitly consented to Riggs’s presence. The apartment manager lived on the same breezeway as Riggs, and Riggs personally delivered rent checks, drawn on his own bank account, to the apartment complex office. Consequently, we cannot say that, as a matter of law, Riggs was a trespasser in the apartment to whom the landlord owed a more limited duty.

Decided October 26, 2015.

Ayerbe & Cowart, Paul R. Ayerbe, William T. Arnold, for appellant.

Bullard & Wangerin, Daniel Bullard IV, Erin S. Corbett, for appellees.

Judgment reversed.

Ellington, P. J., and Dillard, J., concur in judgment only.

DILLARD, Judge,

concurring in judgment only.

I concur in judgment only because I do not agree with all that is said in the majority opinion. As a result, the majority’s opinion decides only the issues presented in the case sub judice and may not be cited as binding precedent. See Court of Appeals Rule 33 (a).