text:
    A17A0835.
    LA FONTAINE et al. v. SIGNATURE RESEARCH, INC.
    (803 SE2d 609)
   MILLER, Presiding Judge.

In May 2014, Michigan residents Francis La Fontaine and her husband, Roberto Melendez (collectively “the Appellants”), took a vacation in the Dominican Republic. While participating in a zipline course, La Fontaine was injured when the line collapsed. The Appellants sued Signature Research, Inc. (“Signature”), the Georgia corporation that inspected the zipline, in the State Court of Douglas County. The trial court dismissed the suit under the doctrine of forum non conveniens, and this appeal followed. For the reasons that follow, we affirm.

In Georgia, the doctrine of forum non conveniens is codified in OCGA § 9-10-31.1, which provides that the trial court may dismiss an action if the interests of justice and convenience of parties renders another forum more appropriate. Hawkins v. Blair, 334 Ga. App. 898, 901 (3) (780 SE2d 515) (2015). The party seeking dismissal bears the burden of showing dismissal is warranted. Id. “The application of the statutory standard to the peculiar circumstances of a particular case is a matter committed to the sound discretion of the trial court.” Wang v. Liu, 292 Ga. 568, 569 (1) (740 SE2d 136) (2013).

For the purpose of Signature’s motion to dismiss, the relevant facts are undisputed. Cumayasa Sky Adventures operated a zipline in the Dominican Republic. In December 2013, Signature inspected the line and certified that it was compliant with industry safety standards.

In May 2014, while vacationing in the Dominican Republic, La Fontaine was injured when the zipline collapsed. She received treatment for her injuries in the Dominican Republic before returning to Michigan, where she continued to receive extensive medical care.

The Appellants initially filed suit in the district court of the Southern District of Florida, but the district court dismissed that complaint based on forum non conveniens. The Appellants then filed the instant suit.

Signature again moved to dismiss on forum non conveniens grounds, and the trial court granted the motion. Importantly, Signature has stipulated that it will submit to jurisdiction in the Dominican Republic and will waive any statute of limitation defenses there, as well as in every other state in the United States in which the claim was not already barred.

1. The Appellants first argue that the doctrine of forum non conveniens does not require that they bring their suit in a foreign country under common law or statute, and that Georgia’s forum non conveniens statute unconstitutionally invades a plaintiff’s right of access to the courts. They further contend that this right of access to our courts applies equally to Georgia residents and residents of other states. We conclude that Georgia law does not preclude the dismissal of this case on forum non conveniens grounds.

OCGA § 9-10-31.1 (a), which codified the common law doctrine of forum non conveniens, provides:

If a court of this state, on written motion of a party, finds that in the interest of justice and for the convenience of the parties and witnesses a claim or action would be more properly heard in a forum outside this state . . . the court shall decline to adjudicate the matter under the doctrine of forum non conveniens . . . [and] shall dismiss the claim or action. . . .

This Court has recognized that “[t]he doctrine of forum non conveniens is unique in the law because it allows a trial court to dismiss a suit that otherwise meets all of the jurisdiction and venue requirements for access to our courts on the grounds of administrative efficiency and convenience.” Hewett v. Raytheon Aircraft Co., 273 Ga. App. 242, 248 (2) (614 SE2d 875) (2005), overruled on other grounds by Wang, supra, 292 Ga. at 571 (1).

(a) Constitutionality of OCGA § 9-10-31.1

To the extent that the Appellants argue that the statute is unconstitutional and denies access to the courts, the trial court did not rule on these arguments, and thus, we cannot review them on appeal. Pimper v. State of Ga., 274 Ga. 624, 627 (555 SE2d 459) (2001); Brunswick Landing v. Glynn County, 301 Ga. App. 288, 295 (4) (b) (687 SE2d 271) (2009).

(b) Forum non conveniens after AT&T Corp. v. Sigala

The Appellants argue that AT&T Corp. v. Sigala, 274 Ga. 137 (549 SE2d 373) (2001), which was superseded by OCGA § 9-10-31.1, mandates that we reverse the trial court’s order dismissing the complaint. Specifically, they contend that Sígala limits the application of forum non conveniens to cases brought by nonresident aliens for injuries that occur outside the United States and that the codification of the forum non conveniens doctrine merely reinforces this application. In other words, they argue that neither Sígala nor the statute permits dismissal of a United States citizen’s complaint where the alternative forum is a foreign country. We disagree.

The Appellants’ reliance on Sígala is flawed because that case was superseded when our legislature enacted OCGA § 9-10-31.1, which codified the doctrine of forum non conveniens. See OCGA § 9-10-31.1; see also Wegman v. Wegman, 338 Ga. App. 648, 652 (1) (791 SE2d 431) (2016) (noting that in Georgia, the doctrine of forum non conveniens is controlled by statute). In enacting OCGA § 9-10-31.1, “the General Assembly .. . intended to provide that the courts of this state may under certain circumstances decline to decide cases under the doctrine of forum non conveniens.” (Punctuation omitted.) Hewett, supra, 273 Ga. App. at 251 (3); see also Ga. L. 2005, p. 1, Act 1 (S.B. 3), preamble. Indeed, Sígala itself recognized that a specific statute prevails over common law. Sígala, supra, 274 Ga. at 141. Thus, OCGA § 9-10-31.1 controls, and the trial court was authorized to consider dismissal based on forum non conveniens.

2. The Appellants next argue that it was error to dismiss the case in favor of a foreign tribunal under the plain language of OCGA § 9-10-31.1 (b), which requires a defendant to file a written stipulation waiving any statute of limitation defense. We disagree.

Under OCGA § 9-10-31.1 (b),

[a] court may not dismiss a claim under this Code section until the defendant files ... a written stipulation that, with respect to a new action on the claim commenced by the plaintiff, all the defendants waive the right to assert a statute of limitations defense in all other states of the United States ....

The Appellants argue that the use of the phrase “all other states of the United States” limits the trial court’s authority to dismiss an action only in favor of a forum in another state.

When considering a statute, the courts will assume the legislature meant what it said and said what it meant, give the text its plain meaning, and view the text in the context in which it appears. See iHeartMedia v. Sheridan, 300 Ga. 771, 772 (798 SE2d 223) (2017). Moreover, “[t]he cardinal rule of statutory construction is to seek the intent of the Legislature, and language in one part of a statute must be construed in the light of the legislative intent as found in the statute as a whole.” (Citation and punctuation omitted.) Fair v. State, 288 Ga. 244, 252 (2) (702 SE2d 420) (2010).

This Court has held that the legislature clearly intended to permit trial courts to dismiss suits that would be more appropriately heard in any forum outside this state, including foreign countries. See Hewett, supra, 273 Ga. App. at 250-252 (3) (vacating and remanding for the trial court to analyze the factors under OCGA § 9-10-31.1 (a) in suit brought in Georgia by New Zealand family in connection with a plane crash that occurred in Australia and noting that defendants must file the required waiver under subsection (b)). By its plain language, the statute permits dismissal to a “forum outside this state.” OCGA § 9-10-31.1 (a). Simply put, the language in subsection (b) does not restrict the trial court’s authority under subsection (a) to dismiss a case in favor of a foreign venue.

If the legislature intended for dismissal to be limited to only those circumstances in which the alternate venue was a sister state, it would have so stated in subsection (a). See iHeartMedia, supra, 300 Ga. at 772; Fair, supra, 288 Ga. at 252 (2). Accordingly, we find no merit in the Appellants’ claim that the trial court could only dismiss the case in favor of a forum in a sister state.

3. The Appellants next argue that the trial court erred in granting the motion to dismiss under the factors set forth in OCGA § 9-10-31.1. We find the trial court properly exercised its discretion.

... In determining whether to grant a motion to dismiss an action . . . under the doctrine of forum non conveniens, the court shall give consideration to the following factors:
(1) Relative ease of access to sources of proof;
(2) Availability and cost of compulsory process for attendance of unwilling witnesses;
(3) Possibility of viewing of the premises, if viewing would be appropriate to the action;
(4) Unnecessary expense or trouble to the defendant not necessary to the plaintiff’s own right to pursue his or her remedy;
(5) Administrative difficulties for the forum courts;
(6) Existence of local interests in deciding the case locally; and
(7) The traditional deference given to a plaintiff’s choice of forum.

OCGA § 9-10-31.1 (a).

The trial court addressed each of the seven factors under OCGA § 9-10-31.1 and found that they weighed in favor of dismissing the case.

(a) Relative ease of access to sources of proof

As to the first factor, the Appellants argued before the trial court that although La Fontaine was treated initially in the Dominican Republic, most of her treatment involved doctors and physical therapy in Michigan, making it cost-prohibitive to bring these witnesses out of the country. Signature argued that all of the staff operating the zip line and the witnesses who were present at the time of the accident are in the Dominican Republic, and Signature agreed to stipulate to jurisdiction in that country, along with waiving any statute of limitation issues.

The trial court found that the actual zipline, the initial treating doctors, and many of the witnesses are all located in the Dominican Republic, making the sources of proof of the cause of La Fontaine’s injuries more accessible in that country. Moreover, there was about a six-month gap between the time Signature inspected the zipline and the date of the accident, raising a question of whether there were any changes to the line or intervening causes other than a failure of a bolt as the Appellants allege. Given that the accident occurred in the Dominican Republic, the trial court did not abuse its discretion in finding that this factor weighs in favor of Signature. See LeCraw v. Antique Wine Co. (Franchising) Ltd., 1:14-CV-01149-RWS, 2015 WL 1277001, * 9 (N.D. Ga. 2015) (the administrative burden on the court and the fact that all the evidence was in a foreign country favored dismissal).

(b) Availability and cost of compulsory process for attendance of unwilling witnesses

Addressing the second prong, the trial court noted that it had no authority to compel the testimony of the doctors and witnesses in the Dominican Republic, and Signature would be limited in its ability to present a defense if forced to proceed in Georgia. Thus, the trial court found this factor weighs strongly in favor of Signature.

The record reflects that both parties submitted affidavits to address the Dominican Republic’s procedure in civil cases. The first attorney opined that the courts were available and adequate to decide the issues. A second attorney explained that the Dominican Republic requires witnesses to testify in person, which would require that all United States witnesses and parties travel to the Dominican Republic for trial. Moreover, the Dominican Republic provides no penalty for failure to appear. However, obtaining a visa for willing witnesses to come testify in the Dominican Republic is fairly simple and inexpensive.

There are similar problems for compelling the attendance of Dominican Republic witnesses if the trial is held in Georgia. The trial court did not abuse its discretion in finding that this factor weighs heavily in Signature’s favor. See Tazoe v. Airbus S. A. S., 631 F3d 1321, 1335 (III) (B) (11th Cir. 2011) (district court did not abuse its discretion in dismissing United States citizen’s suit in favor of foreign court based on foreign defendants’ inability to compel witnesses or produce evidence or to implead third parties); Aldana v. Del Monte Fresh Produce N. A., 578 F3d 1283, 1293-1294 (IV) (B) (11th Cir. 2009) (district court did not abuse its discretion in dismissing suit where witnesses and evidence were in Guatemala, there were linguistic barriers with respect to documents and witnesses, the misconduct occurred in Guatemala, and the court could not compel witnesses to come to the United States). Cf. Hawthorn Suites Golf Resorts v. Feneck, 282 Ga. 554, 556-557 (3) (651 SE2d 664) (2007) (trial court did not abuse discretion in dismissing suit where witnesses were located in Louisiana and could be more easily compelled to testify there).

(c) Possibility of viewing of the premises

Addressing the third factor, the trial court found that there was no ability to transport a Georgia jury to the Dominican Republic to view the scene. Although the Appellants assert that viewing the zipline is unnecessary, their theory of liability is that a faulty bolt was the cause of the accident and that this should have been discovered during Signature’s inspection. As Signature has explained, its defense will point to other parts of the zipline that could have caused the collapse given the six-month time lapse between Signature’s inspection of the zipline and the accident that resulted in La Fontaine’s injuries. In light of this defense, inspecting the premises may be necessary despite the Appellants’ claim to the contrary. Accordingly, the trial court did not abuse its discretion in finding that this factor weighs in favor of Signature.

(d) Unnecessary expense or trouble to the defendant not necessary to the plaintiff’s own right to pursue his or her remedy

With respect to the fourth factor, the trial court explained that Signature would face expense and difficulty if it found it necessary to bring any of the witnesses from the Dominican Republic to testify on its behalf. The trial court noted, however, that the Appellants faced similar difficulties in bringing the suit in the Dominican Republic. The trial court did not abuse its discretion in finding that this factor did not weigh in favor of either party

(e) Administrative difficulties for the forum courts

Turning to the fifth factor, the trial court noted that it would have to apply Dominican law, which would most likely be in Spanish, and doing so would be burdensome on the Georgia court and its full docket. The trial court did not abuse its discretion in finding that this factor weighs in favor of Signature. See Piper Aircraft Co. v. Reyno, 454 U. S. 235, 260 (II) (B) (2) (102 SCt 252, 70 LE2d 419) (1981) (trial court may consider difficulties of applying foreign law in balancing factors).

(f) and (g) Existence of local interests in deciding the case locally and the traditional deference given to a plaintiff’s choice of forum

The trial court found that the sixth and seventh factors weigh in favor of the Appellants because the trial court had an interest in protecting Georgia products, services, and corporations, and courts traditionally defer to a plaintiff’s choice of forum.

After weighing all of the factors, the trial court found that the location of witnesses, the site of the accident, and the inability of a Georgia court to compel Dominican Republic witnesses to appear tilted the balance toward dismissing the case on the basis of forum non conveniens. Our review is limited to whether the trial court abused its discretion. Wang, supra, 292 Ga. at 569 (1). Given the trial court’s detailed analysis of the weight it gave each of the seven factors, we cannot say that the trial court abused its discretion. Therefore, we affirm the trial court’s dismissal of the Appellants’ suit on forum non conveniens grounds.

Judgment affirmed.

Doyle and Reese, JJ., concur.

Decided August 2, 2017

The Callier Firm, Jefferson C. Callier, for appellants.

Drew Eckl & Farnham, Barbara A. Marschalk, David A. Olson, Matthew J. Johnson, for appellee.

       Signature has its principal place of business in Douglas County.

       The Appellants initially sued Cumayasa Sky Adventures, which operated the zipline, and two other Dominican companies. These parties, however, were dismissed in exchange for cooperation in the suit against Signature.

       In Sígala, a Venezuelan national brought a civil action in Georgia for injuries and death arising from an explosion in Venezuela. Sigala, supra, 274 Ga. at 137. The Supreme Court of Georgia found that the doctrine of forum non conveniens authorized the trial court to dismiss that case brought by a nonresident alien plaintiff for injuries sustained outside the United States. Id. at 139-140.

       For this same reason, La Fontaine’s reliance on Southern R. Co. v. Goodman, 259 Ga. 339 (380 SE2d 460) (1989), is likewise misplaced. That case was decided before OCGA § 9-10-31.1 was enacted. Moreover, it appears that the holding in Goodman relies, in part, on the fact that it arose in the context of an action under federal law. Goodman, supra, 259 Ga. at 339.

       Notably, there is a second statute addressing a nonresident’s right of access to the courts. See OCGA § 50-2-21 (addressing dismissal of actions of a nonresident accruing outside this state). OCGA § 50-2-21 was enacted in 2003. The parties do not argue that this statute applied, and we need not determine how OCGA §§ 9-10-31.1 and 50-2-21 interact in the first instance. See Hewett, supra, 273 Ga. App. at 251 (3) n. 6. We note, however, that the factors for consideration under OCGA § 50-2-21 (b) are consistent with the seven factors set forth in OCGA § 9-10-31.1 (a). Id. These factors are discussed in Division 3, infra.

       In the absence of a Georgia decision directly on point, this Court looks to federal case law and finds the rulings of federal courts persuasive. See, e.g., Wegman, supra, 338 Ga. App. at 654 (2) (noting that there was no Georgia case on point in forum non conveniens case but finding federal cases persuasive).

       Although the Appellants argue that it is unnecessary to visit the site because there is a video of the accident, the video is not part of the record on appeal, and this Court has no means to evaluate whether it is a proper substitute for travel to view the actual zipline. Moreover, the district court apparently viewed the video and found that it provided a “limited view” and thus it would not preclude the possibility that a visit might be warranted. La Fontaine v. Signature Research, Inc., 2016 WL 880527, *7 (III) (B) (4), Case No. 1:14-CV-24028 (S.D. Fla. 2016).


source: Caselaw Access Project

author: Bethel, Judge.

license: Public Domain

text:
    A17A0950.
    HOLLOWAY v. THE STATE.
    (804 SE2d 125)
   Bethel, Judge.

Travis Lydell Holloway appeals from his conviction on one count of burglary and one count of hijacking a motor vehicle. He asserts that he received ineffective assistance from his trial counsel and that there was insufficient evidence to support his conviction for hijacking. For the reasons set forth below, we affirm.

1. Holloway first contends that he received ineffective assistance from his trial counsel. However, Holloway’s claim for ineffective assistance is barred by the Supreme Court of Georgia’s decision in Glover v. State and its progeny In Glover, the Supreme Court of Georgia ruled that because “a claim of ineffectiveness of trial counsel must be asserted at the earliest practicable moment,” such claims must “be raised before appeal if the opportunity to do so is available; that the ability to raise the issue on motion for new trial represents such an opportunity; and that the failure to seize that opportunity is a procedural bar to raising the issue at a later time.” 266 Ga. at 184 (2) (citations, punctuation and emphasis omitted).

In this case, Holloway concedes that his enumeration of error in his brief before this Court is the first instance in which he has raised the issue of his trial counsel’s ineffectiveness. Holloway never filed a motion for a new trial and instead filed multiple motions for out-of-time appeal, one of which was made with the assistance of appointed appellate counsel. Thus, not only did Holloway not move for a new trial at any point in these proceedings, he also pursued his appeal to this Court, at least in part, with the assistance of new appellate counsel who would have been free to raise ineffective assistance of counsel as a basis for a new trial with the court below. Cf. Bridges v. State, 279 Ga. 351, 357 (11) (613 SE2d 621) (2005) (remand to trial court with direction is appropriate where defendant was represented by trial counsel until after notice of appeal was filed). As Holloway and his new appellate counsel did not seize the opportunity to address the issue of trial counsel’s ineffectiveness with the court below, Glover bars this Court’s consideration of Holloway’s ineffectiveness claim on appeal.

2. Holloway also contends that the evidence presented against him at trial was insufficient to support his conviction for hijacking a motor vehicle. Following a conviction in a criminal case, our sufficiency of the evidence review is limited to a determination of whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the defendant committed the essential elements of the crime beyond a reasonable doubt. Gray v. State, 213 Ga. App. 507, 509 (1) (445 SE2d 328) (1994).

Holloway was charged with hijacking a motor vehicle pursuant to OCGA § 16-5-44.1 (b), the “essential elements” of which are: “(1) possessing a firearm or weapon; (2) while obtaining ... a motor vehicle from the person or presence of another; (3) by force and violence or intimidation.” Bradford v. State, 223 Ga. App. 424, 425 (1) (477 SE2d 859) (1996). A person is also guilty of this offense if he or she attempts or conspires to do these acts. OCGA § 16-5-44.1 (b).

Here, the evidence presented shows that Holloway and several others were walking through a parking lot when they found a man and a woman in a vehicle. Holloway and another assailant approached the vehicle, and Holloway pulled the woman from the passenger seat and threw her to the ground. Holloway then moved around the vehicle and brandished a gun at the man who was seated in the driver’s seat. Holloway then removed him from the vehicle and began beating him with the gun. One of the other men who had come with Holloway was “watching out” while this incident occurred. After the driver was subdued, Holloway and the other men who had been walking with him got in the vehicle and drove it away. Holloway was not driving the vehicle.

The woman who was pulled from the passenger seat of the vehicle recognized Holloway, testifying at trial that she knew Holloway because he is her cousin. She testified that she saw Holloway the day after the incident and that he told her where to find the stolen vehicle. Holloway also later admitted to law enforcement that he was present at the scene where the incident occurred and that he rode in the vehicle after it had been stolen.

This evidence was sufficient to allow a rational jury to find that Holloway committed each element of the charged offense beyond a reasonable doubt. Here, the testimony established Holloway’s possession of a gun that he used to hit the victim. Holloway has not suggested in his appeal that the gun described by the witnesses fails to meet the statutory definitions of the terms “firearm” or “weapon” in OCGA § 16-5-44.1 (a) (1) and (3), and witness testimony describing Holloway’s possession and use of the gun in the course of the incident satisfies the requirement that Holloway was in possession of the weapon or firearm at the time of the offense.

Likewise, the evidence indicates that Holloway and the other men “obtained” the vehicle “from the person and presence” of the victim as the result of this encounter. “[Ajpplying the ordinary meaning of ‘obtain,’ the offense of hijacking a motor vehicle is concluded when possession of the motor vehicle is acquired.” Gordon v. State, 316 Ga. App. 42, 46 (1) (a) (728 SE2d 720) (2012) (emphasis omitted). The evidence here indicates that not only did Holloway and the others obtain control and possession of the vehicle after the victim had been subdued but that they also moved the vehicle to another location. Additionally, the evidence shows that the vehicle was obtained after removing the victim from the vehicle and beating him. Thus, the vehicle was clearly obtained from the victim. See Whaley v. State, 337 Ga. App. 50, 53-54 (1) (785 SE2d 685) (2016) (presence requirement satisfied when the defendant took the victim’s keys from the victim upon threat of violent injury and then retrieved the car from the parking lot); see also Heard v. State, 287 Ga. 554, 555 (1) (697 SE2d 811) (2010) (noting that “the concept of immediate presence is broadly construed if the object taken was under the victim’s control or responsibility and the victim is not too distant”) (citation and punctuation omitted).

Decided August 2, 2017.

Jonathan P. Waters, for appellant.

K. David Cooke, Jr., District Attorney, Jason M. Wilbanks, Assistant District Attorney, for appellee.

As to the third element of the crime, the evidence presented shows that the vehicle was obtained from the victim through force and violence. Holloway and another of the assailants forcibly removed the victim and another person from the vehicle, and Holloway proceeded to hit the victim with a gun, such that he could not resist the efforts of Holloway and the others to drive the vehicle away.

Finally, we note that although the record indicates that someone other than Holloway drove the car away from the scene of the incident, the jury could infer Holloway’s criminal intent to commit the hijacking, including the element of obtaining the vehicle from the victim, due to his conduct “before, during, and after” the crime. Johnson v. State, 299 Ga. App. 706, 708 (1) (a) (683 SE2d 659) (2009). As this Court ruled in Johnson , the act of pointing a gun at the head of the vehicle’s owner and ordering him from the car is an overt act to effect the object of a conspiracy to hijack a vehicle. Id. at 709 (1) (a). Likewise, Holloway’s admitted presence at the scene of the incident, his possession of a firearm, his role in forcibly removing the vehicle’s occupants, and his presence in the vehicle after it had been stolen demonstrate several acts on his part to effect the hijacking of the victim’s vehicle, even though he was not the person who ultimately drove it from the scene.

Finding sufficient evidence in the record to support each element of the charge for hij acking a motor vehicle, we conclude that a rational jury could find Holloway guilty of the offense beyond a reasonable doubt. We therefore affirm his conviction.

Judgment affirmed.

McFadden, P. J., and Branch, J., concur.

       Holloway and three co-defendants were indictedfor murder, felony murder, burglary, and hijacking a motor vehicle. Holloway entered not guilty pleas and proceeded to trial. Holloway, through his counsel, admitted to his involvement in the burglary but denied all of the other allegations against him. He was acquitted of the murder and felony murder charges but was convicted of the charges for burglary and hijacking a motor vehicle. The facts of this case relevant to Holloway’s conviction for hijacking a motor vehicle are discussed in Division 2. We have not set forth facts relating to Holloway’s conviction for burglary because he has not challenged the sufficiency of the evidence against him on that count and because, as set forth in Division 1, we do not reach the merits of his other enumeration of error.

       266 Ga. 183, 183-184 (2) (465 SE2d 659) (1996).

       Cf., e.g., Haggard v. State, 273 Ga.App. 295, 295-296 (614 SE2d 903) (2005). In Haggard, this Court determined that the defendant’s appeal was the first time the ineffectiveness claim could have been raised by the defendant because his trial counsel had participated in the filing of the motion for a new trial. Id.

       We note that while motions for new trial must generally be filed within 30 days after the entry of the verdict, OCGA § 5-5-40 (a) provides that this deadline does not apply “in extraordinary cases.” Thus, even though Holloway engaged a new appellate counsel for the first time well after the running of the 30-day deadline, OCGA § 5-5-40 (a) contemplates that he, with the assistance of his appellate counsel, could have moved for a new trial with the trial court and raised his claim for ineffective assistance of counsel in that forum before bringing this appeal.

       Holloway does not challenge the sufficiency of the evidence supporting his conviction for burglary. His brief notes that his trial counsel admitted in his closing argument that Holloway committed the charged burglary, and he suggests elsewhere in the brief that only the evidence for his hijacking conviction was insufficient.

       See Hughes v. State, 185 Ga. App. 40, 41 (363 SE2d 336) (1987) (requiring evidence of “[s]ome physical manifestation of a weapon ... or some evidence from which the presence of a weapon may be inferred” to support these elements of the offense) (citation and punctuation omitted).


author: Self, Judge.

text:
    A17A0975.
    REED v. THE STATE.
    (804 SE2d 129)
   Self, Judge.

Timmy Lane Reed pled guilty to one count each of trafficking in methamphetamine, possession of marijuana with intent to distribute, and possession of more than an ounce of marijuana. The trial court sentenced him to serve 15 years in prison. Reed appeals, contending that the trial court erred in failing to sentence him below the mandatory minimum pursuant to OCGA § 16-13-31 (g) (2) (A). We disagree and affirm.

The facts in this case are not in dispute. In the summer of 2015, the Cherokee County Multi Agency Narcotics Squad (“CMANS”) received a tip that Reed was selling methamphetamine. On three separate occasions, beginning on July 23, 2015, CMANS used an undercover agent and confidential informant to purchase from Reed between 1.2 grams and 1.9 grams of methamphetamine for “a hundred dollars cash” each time. Based on these three purchases, CMANS officers obtained a warrant to search his residence. Officers recovered 211 grams of methamphetamine, 516 grams of marijuana, and$4,678 in cash. At the time of the search, three individuals were present in the residence, including Reed, Reed’s neighbor, and Reed’s girlfriend, Sherri Satterfield. The neighbor was working on Reed’s vehicle and admitted to having used methamphetamine provided to him by Reed that morning in exchange for the work. Reed claimed his girlfriend knew nothing about the drugs found in the home.

Reed admitted to possessing four to five ounces of methamphetamine and to selling it “to make a buck” because he had lost his job. Reed told officers that he made two sales every week and that he sold approximately four ounces every two to three months. Officers arrested Reed and transported him to the Cherokee County Adult Detention Center.

A week after his arrest, narcotics agents intercepted a phone call from the jail between Reed and a family member discussing something buried in his yard. After talking with the family member, officers obtained a second warrant to search the residence and discovered $22,433 and 11.8 grams of methamphetamine buried in a container in the yard.

Reed and Satterfield were jointly indicted on one count each of trafficking in methamphetamine, possession of marijuana with intent to distribute, and possession of more than an ounce of marijuana. Reed pled guilty to all three charges, and the trial court sentenced him as a first offender to 15 years.

The trial court sentenced Reed under OCGA § 16-13-31 (e) (2), which provides:

. . . [A]ny person who sells, delivers, or brings into this state or has possession of 28 grams or more of methamphetamine, amphetamine, or any mixture containing either methamphetamine or amphetamine, as described in Schedule II, in violation of this article commits the felony offense of trafficking in methamphetamine or amphetamine and, upon conviction thereof, shall be punished as follows:... (2) If the quantity of methamphetamine, amphetamine, or a mixture containing either substance involved is 200 grams or more, but less than 400 grams, the person shall be sentenced to a mandatory minimum term of imprisonment of 15 years and shall pay a fine of $300,000.00[.]

The trial court declined Reed’s request for a deviation from the mandatory minimum sentence. See OCGA § 16-13-31 (g) (2). It reasoned:

There are a lot of instances where [sjtatutes that deny discretion to the Court work — don’t always work to what might be the best justice in a case.
This .. . particular [sjtatute has .. . eased somewhat.. . in providing discretion, but it is a very limited discretion . . . and defined in Section ...(g) (2) (A).
And ... I believe that the Governor has begun to re-examine . . . the . . . drug laws and to try and create a perhaps a more rational structure than... before. I think the focus of that is ... on addiction . . . and the harm that addiction causes.
I also believe that mandatory minimums for dealing . .. don’t always work the perfect justice, but I understand them because I see every day the impact of what you peddle. I see children who are neglected, abused, who die because of people who are so — whose lives are so wrecked by methamphetamine that they can’t be parents. I see spousal abuse, theft, and all manner of violence. I can’t even begin to explain to you what kind of—how methamphetamine tears at the fabric of this community.
And this [sjtatute is designed with that in mind, not to punish the user. There are [sjtatutes that punish users, to — that address the violation of ... of addiction and use. This [sjtatute does what — the only thing the Legislature knows how to do, is to try to stop the flow of drugs into the community from the source.
And in reviewing the elements of deviation, which I’m required to find all of them in order to be able to deviate, it’s an and, not an or, at the top of the list, I don’t think I can find that you were not a leader and... I really don’t think that the interest of justice would be served by an imposition of a lesser sentence.

Reed contends that the trial court abused its discretion in failing to depart from the 15-year mandatory minimum “based on quantity alone.” Reed asserts that under OCGA § 16-13-31 (g) (2), more than mere quantity must be considered and, in Reed’s case, there was no aggravating evidence. Specifically, the State presented no evidence that Reed was a “leader” or “kingpin” or that he maintained an organized methamphetamine distribution network; no firearms were involved; Reed had no prior felonies; Reed’s pre-trial drug screens were all negative; and all the witnesses who testified at the plea hearing on Reed’s behalf indicated that he was a productive member of society. Finally, Reed claims the trial court utilized a mechanical sentencing scheme “that prevented proper consideration” of the request for a deviation.

We find no merit in these contentions. First, the record contains no evidence that the trial court declined to deviate “based on quantity alone.” The record also fails to support Reed’s mechanical sentencing claim. Such a claim requires “a clear statement in the record that constitutes either a general refusal to consider [a deviation] or an erroneous expression of belief that the law does not permit the exercise of such discretion.” (Citation and punctuation omitted.) McCullough v. State, 317 Ga.App. 853 (733 SE2d 36) (2012). Here, the trial court’s statements during the sentencing hearing clearly indicate an awareness that it had the discretion to deviate from the mandatory minimum sentence; there is nothing in the trial court’s statement that indicates it was applying a mechanical policy or “that there was an outright refusal to consider [Reed’s request to deviate] Id. at 855.

The remainder of Reed’s arguments focus upon the statutory factors allowing a trial court discretion to deviate. OCGA § 16-13-31 (g) provides three ways that a trial court may impose a reduced or suspended sentence upon a defendant convicted of violating the Code section. Subsection (1) allows the trial court to depart from the mandatory minimum sentence if it determines that the defendant has provided “substantial assistance in the identification, arrest, or conviction of any of his or her accomplices, accessories, coconspira-tors, or principals.” OCGA § 16-13-31 (g) (1). Subsection (3) allows for departure “when the prosecuting attorney and the defendant have agreed to a sentence that is below such mandatory minimum.” OCGA § 16-13-31 (g) (3). Finally, subsection (2), which Reed contends applies in this case, provides:

In the court’s discretion, the judge may depart from the mandatory minimum sentence specified for a person who is convicted of a violation of this Code section as set forth in subparagraph (B) of this paragraph if the judge concludes that:
(i) The defendant was not a leader of the criminal conduct;
(ii) The defendant did not possess or use a firearm, dangerous weapon, or hazardous object during the crime;
(iii) The criminal conduct did not result in a death or serious bodily injury to a person other than to a person who is a party to the crime;
(iv) The defendant has no prior felony conviction; and
(v) The interests of justice will not be served by the imposition of the prescribed mandatory minimum sentence.

(Emphasis supplied.) OCGA § 16-13-31 (g) (2) (A).

This statute explicitly authorizes the trial court to exercise its discretion in departing from the mandatory minimum sentence only if all five factors are present. See Lastohkein v. State, 199 Ga. App. 555, 556 (2) (405 SE2d 554) (1991) (“[OCGA § 16-13-31 (g) (1)] does not by its terms require the judge to impose a reduced or suspended sentence in the event a defendant has rendered such assistance but instead merely authorizes him to do so.”). Contrary to Reed’s contention, the statute does not state that the trial court must depart from the mandatory minimum sentence in the event it finds the presence of all five factors. It also does not require consideration of aggravating evidence to support a decision not to depart from the mandatory minimum sentence. The first four factors can be determined from objective evidence in the record, but the fifth is, by its very nature, subjective. “[Application of [an interest of justice] standard to the peculiar circumstances of a particular case is a matter committed to the sound discretion of the trial court, and we review the trial court’s decision for abuse of discretion.” (Citation and punctuation omitted.) Woodard Events v. Coffee House Indus., 341 Ga. App. 526, 527 (801 SE2d 322) (2017).

Decided August 2, 2017.

Gregory A. Hicks, for appellant.

Shannon G. Wallace, District Attorney, Cliff Head, Assistant District Attorney, for appellee.

In this case, the record from the plea hearing reflects that the trial court was well aware of its discretion to depart from the mandatory minimum sentence and the factors contained in OCGA § 16-13-31 (g) (2) (A). However, the trial court concluded that the fifth factor — the “interests of justice” — did not weigh in favor of Reed. As we cannot say that the trial court abused its discretion in reaching this conclusion, we affirm.

Judgment affirmed.

Dillard, C. J., and Ray, R J., concur.

       Based upon our analysis of the interests of justice factor, we need not consider Reed’s arguments as to the remaining four factors.


author: MILLER, Presiding Judge.

text:
    A17A1099.
    WILLIAMS v. CITY OF ATLANTA.
    (803 SE2d 614)
   MILLER, Presiding Judge.

This appeal arises from a personal injury lawsuit brought by Darryl Williams against the City of Atlanta (the “City”) for injuries he allegedly sustained when he stepped in an uncovered water meter hole. The City moved for summary judgment on the basis that the ante litem notice Williams provided was deficient under OCGA § 36-33-5 in that it identified the wrong address for the missing water meter cover. The trial court granted summary judgment to the City, finding that the notice failed to substantially comply with the statutory requirements. For the reasons provided herein, we agree and affirm.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review the grant of summary judgment de novo, construing the evidence in favor of the nonmovant.” (Citations and punctuation omitted.) White v. Ga. Power Co., 265 Ga. App. 664, 664-665 (595 SE2d 353) (2004).

So viewed, the evidence shows that on October 29,2011, Williams alleges that he “tripped and fell on a water maintenance hole that was missing it’s [sic] cover” and sustained injuries as a result. The following day, he reported to the Atlanta Police Department that he fell through an open “manhole” at 425 Chappell Road in Atlanta, and further stated that the incident took place in the vicinity of the intersection of Chappell Road and Mayson Turner Road. Subsequently, Williams sent a timely ante litem notice to the City that stated that the incident took place at or near 239 Chappell Road (the “Ante Litem Address”) but did not include a reference to the intersection. Williams then filed suit wherein he again took the position through much of the litigation that the location of the incident was 425 Chappell Road (the “Litigation Address”). Williams even required that the City designate a representative for deposition capable of testifying as to the Litigation Address. On appeal, the parties do not dispute that the incident actually took place at yet another address — 380 Chappell Road (the “Actual Address”), which is located near the intersection of Mayson Turner and Chappell Roads.

Upon receiving the ante litem notice, the City researched 239 Chappell Road, the Ante Litem Address, and found no record of a water meter at that location. The City proffered undisputed evidence that 0.3 miles separate the Actual Address and the water meter closest to the Ante Litem Address and that there are 20 water meters between the two spots, which are on opposite sides of the street. Also undisputed is the City’s evidence that the distance between the Litigation Address and the water meter closest to the Ante Litem Address is 0.6 miles, the spots are on opposite sides of the road, and there are 30 separate water meters between the two addresses.

The trial court granted the City’s motion for summary judgment on the basis that the ante litem notice did not substantially comply with the requirements of OCGA § 36-33-5, and this appeal followed.

In his sole enumeration of error, Williams contends that the trial court erred in granting the City’s motion for summary judgment because his ante litem notice substantially complied with OCGA § 36-33-5 given the geographic proximity of the address provided in the notice and the address where Williams actually was injured. We disagree.

Within six months of the happening of the event upon which a claim against a municipal corporation is predicated, the person . . . having the claim shall present the claim in writing to the governing authority of the municipal corporation for adjustment, stating the time, place, and extent of the injury, as nearly as practicable, and the negligence which caused the injury. No action shall be entertained by the courts against the municipal corporation until the cause of action therein has first been presented to the governing authority for adjustment.

(Emphasis supplied.) OCGA § 36-33-5 (b). “This statute is in derogation of the common law, which did not require such ante litem notice; therefore it must be strictly construed and not extended beyond its plain and explicit terms.” (Citation and punctuation omitted.) City of Atlanta v. Benator, 310 Ga. App. 597, 601 (3) (714 SE2d 109) (2011).

Presenting a timely and proper ante litem notice is a precondition to bringing a personal injury lawsuit against a city. Atlanta Taxicab Co. Owners Assn. v. City of Atlanta, 281 Ga. 342, 350 (5) (638 SE2d 307) (2006). “[T]he very purpose of OCGA § 36-33-5 ... is to provide the municipality with an opportunity to investigate before litigation is commenced so as to determine whether suit can be avoided.” Id. at 351 (5).

There is no precise standard for determining whether any given ante-litem notice is substantively sufficient, since substantial compliance with the statute is all that is required. The information supplied will be deemed sufficient if it puts a municipality on notice of the general character of the complaint, and, in a general way, of the time, place, and extent of the injury. The act recognizes, by the use of the words “as nearly as practicable,” that absolute exactness need not be had.

(Citations and punctuation omitted.) Id. at 352 (5).

Here, the ante litem notice Williams provided did not substantially comply with theplainandexplicitrequirementsofOCGA § 36-33-5 (b). Williams provided the City with an incorrect address in his ante litem notice which directed the City to investigate an address which does not even contain a water meter. Although this address was geographically close to the Actual Address, it is not the geographic proximity of the addresses that matters. Rather, to substantially comply with the statute, the notice itself must provide enough information for the City to be able to properly investigate and adjust a claim pre-litigation. See Atlanta Taxicab Co. Owners Assn., supra, 281 Ga. at 351 (5); see also Simmons v. Mayor and Aldermen of City of Savannah, 303 Ga. App. 452, 455 (693 SE2d 517) (2010) (ante litem notice was insufficient when it contained the wrong address even though the city had oral notice of the correct address). In this case, Williams’s ante litem notice deprived the City of the opportunity to properly investigate because there is no water meter located at the Ante Litem Address, though the surrounding area contains more than 30 other meters.

Decided August 2, 2017.

Morgan & Morgan, Robert A. DeMetz, Jr., for appellant.

Thomas Kennedy Sampson & Tompkins, Thomas G. Sampson II, Nicholas D. M. Bedford, for appellee.

Given that Williams could not even ascertain where he was injured prior to litigation, and still could not ascertain that fact throughout the course of most of the litigation, it would be unreasonable to expect the City to discern the proper location from the ante litem notice. Nor should the City have to guess as to the correct location. Simply stated, on the facts of this case, which involves a high number of water meters in a small geographic area, Williams’s ante litem notice failed to substantially comply with the requirements of OCGA § 36-33-5. The trial court did not err in granting summary judgment to the City

Judgment affirmed.

Doyle and Reese, JJ., concur.

       Williams offers no explanation for the discrepancy between his claim that his injury was caused by a missing water meter cover and the police report’s reference to a manhole cover.

       Contrary to the City’s argument, Williams’s brief was timely filed because the Sunday deadline was extended to the following Monday per this Court’s rules. See Court of Appeals Rules 3 and 23 (a).

       Williams’s reliance on City of Fairburn v. Clanton, 102 Ga. App. 556, 559 (4) (117 SE2d 197) (1960) is misplaced. In that case, the plaintiff’s notice was sufficient when he claimed his son was injured within the city limits when the actual location was one-fourth of a mile outside the city limits. This inaccuracy, however, did not affect the city’s ability to investigate the claim. Id. This is dissimilar to the facts present here, where Williams’s inaccurate information deprived the City of the ability to investigate and adjust the claim pre-litigation.

       Pretermitting whether information in the police report can be considered for purposes of determining the sufficiency of the ante litem notice, the police report is of no avail to Williams. Although it provided the relevant intersection, it also provided the Litigation Address, and it is undisputed that there are 30 water meters between the Ante Litem Address and the Litigation Address.


author: Dillard, Chief Judge.

text:
    A17A1255.
    LEONE v. GRIFFIN.
    (803 SE2d 617)
   Dillard, Chief Judge.

In this custody dispute, Ashley David Leone appeals from the trial court’s denial of his motion for new trial, contending that the court erred in denying his motion without holding a hearing. For the reasons set forth infra, we reverse the trial court’s denial of Leone’s motion for new trial and remand the case for further proceedings consistent with this opinion.

Leone and Melissa Griffin have one child, born in February 2014. Shortly after the child’s birth, Leone filed a petition for legitimation. Following a lengthy hearing, on August 26, 2015, the trial court issued a final order on legitimation and temporary order on child custody and support, granting Leone’s petition for legitimation, granting him visitation, and ordering him to pay child support.

In September 2015, Leone filed a timely motion for new trial or, in the alternative, motion for reconsideration, in which he asked the court to modify his child-support obligation. Thereafter, on May 5, 2016, without acknowledging Leone’s September 2015 motion, the trial court issued a final order on custody and visitation, granting Griffin primary physical custody and incorporating the visitation schedule from the parties’ parenting plan. In June 2016, Leone filed another timely motion for new trial or, in the alternative, motion for reconsideration, in which he requested that the trial court modify its custody order to award him primary physical custody or joint physical custody, modify his child-support obligation, clarify the parenting plan, and award him attorney fees. Leone specifically asked that the trial court “hold a hearing” on his motion for new trial and “consider witness testimony and documentary evidence on these issues[.]”

On January 6, 2017, without holding a hearing, the trial court ordered that Leone’s child-support obligation be modified, denied his request for attorney fees, and denied his motion for new trial. Leone filed a timely application for discretionary review, which this Court granted. This appeal follows.

Leone contends that the trial court erred in denying his motion for new trial without holding a hearing. Griffin concedes that the trial court’s order denying Leone’s motion for new trial must be reversed, and we agree.

As our Supreme Court has made clear, “Uniform Superior Court Rule 6.3 requires a trial court to hold an oral hearing on all motions for new trial in civil cases, unless otherwise specifically ordered by the court.” And if the trial court denies a motion for new trial “without issuing an order excepting the motion from this procedural requirement and without holding the mandatory hearing, the error will not be deemed harmless on appeal[.]” Indeed, to hold otherwise would “not encourage adherence to the Uniform Rules and would render the mandated hearing a hollow right.”

Decided August 2, 2017.

The Schachter Law Firm, David I. Schachter, for appellant.

Cerbone Law, Adam P. Cerbone, for appellee.

Here, the trial court did not issue an order excepting Leone’s June 2016 motion from this procedural requirement. Nevertheless, the trial court denied the motion without holding the mandatory hearing. Thus, the trial court erred in denying Leone’s motion for new trial. Accordingly, we reverse the portion of the trial court’s January 6, 2017 order denying Leone’s motion for new trial and remand the case with direction that the court comply with Uniform Superior Court Rule 6.3 before ruling on the motion.

Judgment reversed and case remanded.

Ray, P J., and Self, J., concur.

        Brown v. Brown, 294 Ga. 475, 476 (754 SE2d 362) (2014); Kuriatnyk v. Kuriatnyk, 286 Ga. 589, 592 (2) (690 SE2d 397) (2010) (noting that “a motion for new trial ‘shall be decided’ after an ‘oral hearing’ ”); see also Uniform Superior Court Rule 6.3 (“Unless otherwise ordered by the court, all motions in civil actions, including those for summary judgment, shall be decided by the court without oral hearing, except motions for new trial and motions for judgment notwithstanding the verdict.”).

        Triola v. Triola, 292 Ga. 808, 808 (741 SE2d 650) (2013) (punctuation omitted); see PHF II Buckhead LLC v. Dinku, 315 Ga. App. 76, 80 (2) (726 SE2d 569) (2012) (“[T]he appellate courts of Georgia have consistently refused to find that the failure to hold oral argument is harmless error[.]” (punctuation omitted)).

        Kuriatnyk, 286 Ga. at 592 (2) (punctuation omitted); accord PHF II Buckhead LLC, 315 Ga. App. at 80-81 (2).

        Triola, 292 Ga. at 808; Kuriatnyk, 286 Ga. at 592 (2); PHF II Buckhead LLC, 315 Ga. App. at 81 (2).

        See Brown, 294 Ga. at 476 (reversing and remanding with direction that the trial court comply with Uniform Superior Court Rule 6.3); Triola, 292 Ga. at 808-09 (same);Kuriatnyk, 286 Ga. at 592 (2) (reversing and remanding with direction that the trial court conduct a hearing on party’s motion for new trial); PHF II Buckhead LLC, 315 Ga. App. at 80-81 (2) (same).


text:
    A17A1288.
    THE STATE v. JACOBS.
    (804 SE2d 132)
   Dillard, Chief Judge.

The State appeals the trial court’s grant of Kevin Jacobs’s motion to suppress breath-test evidence obtained when he was arrested for, inter alia, driving under the influence of alcohol. On appeal, the State argues that the trial court erroneously suppressed the breath-test evidence based on a finding that the manner in which the arresting officer read the implied-consent notice would lead a reasonable person to mistakenly believe that they had no right to refuse testing. For the reasons set forth infra, we reverse.

The facts relevant to this appeal are undisputed. On February 18, 2016, at approximately 1:30 a.m., a police officer with the DeKalb County Police Department was on patrol when he observed a vehicle approach a red light, drive past the “stopping line,” and stop in the middle of a crosswalk. Based on these observations, the officer activated his emergency lights and immediately initiated a traffic stop of the vehicle. The officer first asked the driver, Jacobs, for his driver’s license, and he complied. While the officer was speaking with Jacobs, he appeared to be confused, and “he had some slurred speech . . . The officer then asked Jacobs if he had consumed any alcoholic beverages before driving, and Jacobs responded that he had two alcoholic drinks at a nearby club.

The officer then walked back to his car to confirm that Jacobs’s license was valid, and when he returned, the officer “smelled a very strong odor of cologne” that he did not smell previously. At this point, the officer also observed an open bottle of liquor in the front passenger seat of the car. When he questioned Jacobs about the bottle, Jacobs responded that he had been “drinking ... with [his] boys.” The officer then asked if Jacobs would submit to any field-sobriety tests, but he refused to do so. Based on his experience, training, and observations of Jacobs, the officer believed that Jacobs “wasn’t able to drive safely.” The officer then asked Jacobs to exit the vehicle, and when he did so, the officer observed Jacobs swaying like he was trying to catch his balance. Thereafter, the officer took Jacobs into custody, placed him in the back seat of the patrol car, and read him the implied-consent notice for ages 21 and older. The officer asked Jacobs to “designate” whether he wanted to submit to a State-administered test of his blood, breath, urine, or other bodily substance for the purpose of determining whether he was under the influence of alcohol or drugs, and Jacobs agreed to take a breath test.

Subsequently, Jacobs was charged, via accusation, with driving under the influence per se, driving under the influence less safe, improper parking, and open container. Jacobs filed a motion to suppress the results of his breath test, arguing that his consent to the test was obtained by coercion. Following a hearing on the motion, the trial court granted it. This appeal by the State follows.

In reviewing the trial court’s ruling on a motion to suppress, an appellate court generally must “(1) accept a trial court’s findings unless they are clearly erroneous, (2) construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court, and (3) limit its consideration of the disputed facts to those expressly found by the trial court.” But we review de novo “the trial court’s application of law to the undisputed facts.” Thus, when, as here, the facts are undisputed, we owe no deference to the trial court’s legal conclusions. Bearing these guiding principles in mind, we turn now to the State’s specific claim of error.

In its sole enumeration of error, the State argues that the trial court erred in suppressing the results of Jacobs’s breath test based on its findings that the officer failed to designate the specific test for which he was requesting consent and that the way in which the officer read the implied-consent notice to Jacobs improperly asked him to choose one of the available chemical tests instead of asking him whether he would consent to a test in the first place. We agree.

Here, it is undisputed that before a breath test was administered to Jacobs, the arresting officer read Georgia’s implied-consent statute for suspects who are 21 years old or older almost verbatim. Specifically, at the suppression hearing, the officer testified that he read the following notice to Jacobs:

Georgia law requires you to submit to a State-administered chemical test of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs.
If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial.
If you submit to testing and the results indicate an alcohol [concentration] of 0.08 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year.
After first submitting to the required state tests, you are entitled to an additional chemical test of your blood, breath, urine, or other bodily substances at your own expense and from a qualified personnel of your own choosing.
Will you submit to the State-administered chemical test of your designated — designate which one under the Implied Consent Law?

And when asked which specific test the officer asked to conduct, he testified that he allowed Jacobs the option of which test to take, and Jacobs agreed to the breath test.

Based on the foregoing, the trial court found that Jacobs’s consent was invalid because the way in which the officer read the question at the end of the implied-consent notice “would tend to lead a reasonable person to respond with one of the options ... rather than to agree to or refuse all possible testing.” But instead of citing any legal authority to support such a conclusion, the trial court merely distinguished the cases relied upon by the State. Ultimately, the trial court found that the officer in this case violated the implied-consent statutes in two ways: (1) by failing to designate any particular test to be conducted; and (2) by converting the final question of the implied-consent notice into a multiple-choice inquiry primarily focused on which type of test the defendant would prefer.

The State argues that the trial court erred in suppressing the breath-test evidence because Jacobs’s consent to take the breath test was voluntary under the circumstances. As we have previously explained:

The Fourth Amendment of the United States Constitution and Article I, Section I, Paragraph XIII of the Georgia Constitution both protect an individual’s right to be free of unreasonable searches and seizures, and apply with equal force to the compelled withdrawal of blood, breath, and other bodily substances.

And because a breath test is “a search within the meaning of the Fourth Amendment, absent a warrant, the State must show that it falls into one of the specifically established and well-delineated exceptions to the warrant requirement.” Relevant to this case, “[c]onsent is a valid basis for a warrantless search where it is given freely and voluntarily, and the State does not argue that any other exception might apply.” Here, the only question in regard to the validity of the search is “whether the State met its burden of proving that [Jacobs] actually consented freely and voluntarily under the totality of the circumstances.”

In Georgia, the voluntariness of consent is “determined by the totality of the circumstances . . . .” Moreover, voluntariness must reflect “an exercise of free will, not merely a submission to or acquiescence in the express or implied assertion of authority.” Consequently, in making this determination, we consider several factors, including “prolonged questioning; the use of physical punishment; the accused’s age, level of education, intelligence, length of detention, and advisement of constitutional rights; and the psychological impact of these factors on the accused.” And no single factor is controlling. Furthermore, consent may not be “coerced, by explicit or implicit means, by implied threat or covert force.” Significantly, Georgia courts have repeatedly held that “while knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.” Rather, the court should consider whether “a reasonable person would feel free to decline the officers’ request to search or otherwise terminate the encounter.” Lastly, we note that “[m]ere acquiescence to the authority asserted by a police officer cannot substitute for free consent.”

Turning to the circumstances of this case, the evidence shows that, after the officer suspected that Jacobs was too intoxicated to drive safely, he simply read the implied-consent notice set forth in OCGA § 40-5-67.1 (b) (2) verbatim, but instead of designating which test he was requesting, he asked Jacobs whether he would choose which test to take. But there was no evidence that the officer used fear, intimidation, threat of physical punishment, or a lengthy detention to obtain Jacobs’s consent to the breath test. There was also no evidence, and the trial court did not find, that the officer used physical force or the threat of such force to coerce Jacobs into agreeing to the breath test. In fact, the officer testified that he did no such thing, and other than reading the implied-consent notice, he and Jacobs had no further discussions regarding his consent to the breath test. Moreover, there was no evidence that Jacobs’s age, intelligence, or level of education hindered his ability to understand the implied-consent notice. To the contrary, evidence showed that Jacobs exercised his right to refuse to take any field-sobriety tests, which indicates that he was not so intoxicated that he could not make an informed decision regarding consent. Lastly, the officer, who was the sole person to observe Jacobs at the time, testified that when Jacobs consented to the breath test, he “seemed to understand . . . what [the officer] was asking of him[.]”

Here, without discussing the totality of the circumstances or any of the factors delineated supra (other than Jacobs’s knowledge of the right to refuse testing), the trial court suppressed the breath-test evidence solely because the officer failed to designate the specific test that would be administered, and the last question in the implied-consent notice “would lead a reasonable person to believe that the purpose of the question is to choose which test or tests [would] be administered, rather than to prompt a yes-or-no response as to whether the test [would] be administered in the first place.” But neither of those bases require the suppression of the breath-test results. Indeed, we have held that the results of chemical testing were admissible in cases in which the arresting officer listed the chemical tests available but did not designate which test would be conducted. In doing so, we explained that “[t]he determinative issue with the implied[-]consent notice is whether the notice given was substantively accurate so as to permit the driver to make an informed decision about whether to consent to testing.” Similarly, here, we conclude that “because the implied[-]consent warning begins by advising the defendant that Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine or other bodily substances, the [officer’s] failure to designate the specific test to be performed did not change the substance or meaning of the implied[-]consent warning.”

Moreover, as to Jacobs’s possible confusion regarding whether he could refuse to consent to any chemical testing, we reiterate that knowledge of the right to refuse consent is only one factor to be taken into account, and the State need not demonstrate such knowledge as an absolute requirement to show effective consent. Furthermore, considering the implied-consent notice as a whole and without isolating the final question, the notice as read to Jacobs made clear that he had the right to refuse testing. Specifically, after informing Jacobs that Georgia law required him to submit to a State-administered chemical test of his blood, breath, urine, or other bodily substance, the officer advised him of the consequences that would occur if he refused, suggesting that refusal was an option. The officer advised that if Jacobs refused to consent to one of the tests, his driver’s license would be suspended for at least one year and that his refusal to submit to the required testing could be used as evidence against him at trial. The officer also advised that if Jacobs agreed to the testing and the results indicated alcohol concentration of 0.08 grams or more, his license would be suspended for at least a year. And after informing Jacobs of the various consequences of his choice to refuse or consent to testing, the officer did not even demand that Jacobs choose which test to take. Instead, he asked Jacobs if he would submit to the State-administered chemical test of his choice. Notwithstanding that the implied-consent notice repeatedly indicated that Jacobs had the right to refuse testing and suffer the consequences, the trial court ignored all of the other relevant factors in determining whether consent was voluntary and improperly relied on a single relevant factor: its finding that the way in which the implied-consent notice was read would lead a “reasonable person” to believe that he or she did not have the right to refuse testing. But even accepting the court’s finding in that respect, we must consider all of the circumstances surrounding Jacobs’s agreement to submit to the breath test because no single factor controls.

Decided August 2, 2017.

Donna C. Stribling, Solicitor-General, Wystan B. Getz, Assistant Solicitor-General, for appellant.

In this case, the record shows that the officer read the implied-consent notice verbatim with no further comments, threats, or coercion; Jacobs appeared to understand and answer the officer’s questions appropriately; there was no evidence that Jacobs’s youth or lack of education impaired his ability to consent; and Jacobs was advised of the various consequences of his refusal to consent to any testing. As a result, we are persuaded that the State satisfied its burden of establishing that Jacobs’s consent to the breath test was voluntary.

For these reasons, we reverse the trial court’s grant of his motion to suppress the breath-test evidence.

Judgment reversed.

Ray, R J., and Self, J., concur.

W. Scott Smith, for appellee.

       In its appellate brief, the State adopts the trial court’s recitation of the facts as set forth in its order granting Jacobs’s motion to suppress, and in his response brief, Jacobs adopts the State’s recitation of the facts and procedural history of the case. These undisputed facts are consistent with the evidence presented at the suppression hearing.

        See OCGA § 5-7-1 (a) (4) (authorizing the State to appeal “[f]rom an order, decision, or judgment suppressing or excluding evidence illegally seized or excluding the results of any test for alcohol or drugs”).

        Armentrout v. State, 332 Ga. App. 370, 371-72 (772 SE2d 817) (2015) (footnotes omitted).

        Id. at 372 (punctuation omitted).

        See supra note 1.

        See Hughes v. State, 296 Ga. 744, 750 (2) (770 SE2d 636) (2015) (“Although we owe substantial deference to the way in which the trial court resolved disputed questions of material fact [not recorded on a videotape], we owe no deference at all to the trial court with respect to questions of law, and instead, we must apply the law ourselves to the material facts.”); State v. Young, 339 Ga. App. 306, 307 (793 SE2d 186) (2016) (same).

        See OCGA § 40-5-67.1 (b) (2). We note that the last sentence of OCGA § 40-5-67.1 (b) (2) asks, “Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?” And “designate which tests” is in parentheses and underlined, suggesting that the officer reading the implied consent statute should specifically designate which test is being requested, rather than actually saying “designate which test.” See OCGA § 40-5-67.1 (b) (2); OCGA § 40-5-67.1 (a) (providing that “the requesting law enforcement officer shall designate which test or tests shall be administered initially and may subsequently require a test or tests of any substances not initially tested”). But see Collins v. State, 290 Ga. App. 418, 419-20 (1) (659 SE2d 818) (2008) (holding that an arresting officer’s failure to designate the particular State-administered test for which he was requesting consent did not change the substance or meaning of the warning in Georgia’s implied-consent notice). But the officer who arrested Jacobs testified he reads the “designate which tests” language “every single time[,]” rather than choosing a test himself.

        Young, 339 Ga. App. at 310 (punctuation omitted). We note that in Birchfield v. North Dakota, 579 U. S. _, _ (V) (C) (3) (136 SCt 2160, 195 LE2d 560) (2016), the Supreme Court of the United States recently held that the Fourth Amendment allows breath tests under the search-incident-to-arrest exception to the warrant requirement. Because, as explained more fully infra, Jacobs gave actual consent to the breath test, we need not decide whether the test was also permitted as a search incident to his arrest.

        Young, 339 Ga. App. at 310 (punctuation omitted).

        Id. (punctuation omitted).

        Id. (punctuation omitted).

        State v. Jourdan, 264 Ga.App. 118, 121 (1) (589 SE2d 682) (2003) (punctuation omitted); accord Johnson v. State, 297 Ga.App. 847, 849 (678 SE2d 539) (2009); see Williams v. State, 296 Ga. 817, 819 (771 SE2d 373) (2015) (explaining that a warrantless search is presumed invalid and the State has the burden of proving otherwise); Young, 339 Ga.App. at 310 (“[T]he State is required to demonstrate actual consent for State-administered testing for the purpose of exception to the warrant requirement. And in determining whether the defendant gave actual consent to a State-administered breath test, the trial court is required to address the voluntariness of the consent under the totality of the circumstances.” (punctuation omitted)).

        Young, 339 Ga. App. at 311 (punctuation omitted); accord State v. Jung, 337 Ga. App. 799, 802 (788 SE2d 884) (2016).

        Young, 339 Ga.App. at 311 (punctuation omitted); accord Jung, 337 Ga.App. at 802; see Dean v. State, 250 Ga. 77, 80 (2) (a) (295 SE2d 306) (1982) (“[T]he voluntariness of a consent to search is determined by looking to the totality of the circumstances, including such factors as the age of the accused, his education, his intelligence, the length of detention, whether the accused was advised of his constitutional rights, the prolonged nature of questioning, the use of physical punishment, and the psychological impact of all these factors on the accused.” (citations and punctuation omitted)).

         See Jung, 337 Ga.App. at 802; accord State v. Tye, 276 Ga. 559, 560 (1) (580 SE2d 528) (2003); see Dean, 250 Ga. at 80 (2) (a) (“In determining voluntariness [of consent to a search], no single factor is controlling.”).

        Kendrick v. State, 335 Ga. App. 766, 769 (782 SE2d 842) (2016) (punctuation omitted); accord Schneckloth v. Bustamonte, 412 U. S. 218, 228 (II) (B) (93 SCt 2041, 36 LE2d 854) (1973); Kettle v. State, 339 Ga.App. 612, 614 (1) (794 SE2d 238) (2016).

        Young, 339 Ga. App. at 311 (punctuation omitted); accord Tye, 276 Ga. at 560 (1); McKibben v. State, 340 Ga.App. 89, 94 (796 SE2d 478) (2017); State v. Bowman, 337 Ga. App. 313, 317 (787 SE2d 284) (2016); Kendrick, 335 Ga. App. at 769.

        Young, 339 Ga. App. at 311; accord Jung, 337 Ga. App. at 802.

        Young, 339 Ga.App. at 311 (punctuation omitted); accord Jung, 337 Ga.App. at 802; see Tye, 276 Ga. at 562 (2) (noting that “a showing of mere acquiescence in an officer’s authority will not demonstrate the accused’s voluntary consensual compliance with the request made of him”).

       At the conclusion of the implied-consent notice, the officer asked, “Will you submit to the State-administered chemical test of your designated—designate which one under the Implied Consent Law?” (Emphasis supplied.) Thus, contrary to the trial court’s finding, the question appears to be asking if Jacobs would choose a test, rather than asking him to answer a “multiple [-] choice inquiry.”

        See Jones v. State, 319 Ga. App. 520, 522-24 (737 SE2d 318) (2013) (affirming the trial court’s denial of a motion to suppress breath-test results when the officer listed the chemical tests available, requested and obtained consent to a blood test, but the defendant ultimately submitted to a breath test); Nagata v. State, 319 Ga. App. 513, 515-16 (736 SE2d 474) (2013) (holding that the officer’s failure to specify the test for which he was requesting consent did not invalidate the defendant’s consent to a breath test when, as here, the officer informed the defendant of the different tests available, including a breath test); Collins, 290 Ga. App. at 420 (1) (holding that the notice given was sufficiently accurate to permit the defendant to make an informed decision about whether to consent to chemical testing when the officer listed all of the tests available and allowed the defendant to choose which test to take).

        Jones, 319 Ga. App. at 522 (punctuation omitted); accord Nagata, 319 Ga. App. at 515; Collins, 290 Ga. App. at 420 (1).

        Jones, 319 Ga.App. at 522 (punctuation omitted); see Nagata, 319 Ga. App. at 515 (“We do not see how the officer’s failure to designate the test to be taken changed the substance or meaning of the warning in the implied consent notice. [The defendant] was under notice that the state-administered chemical tests would be of his blood, breath, urine or other bodily substances. The notice given was sufficiently accurate to permit [the defendant] to make an informed decision about whether to consent to testing.” (punctuation omitted)); Collins, 290 Ga. App. at 420 (1) (same).

        See supra note 17 & accompanying text.

        See supra note 20.

        See supra notes 12 and 15 & accompanying text.

        See McKibben, 340 Ga. App. at 94 (affirming the denial of a defendant’s motion to suppress blood-test results, even though the defendant claimed that the language of the implied-consent notice made him feel as though he had no choice but to consent when the defendant answered affirmatively to the question posed by the implied-consent notice, he never attempted to change that answer prior to testing, he did not appear to be impaired to the extent that he did not understand the question, he did not object to the test, and the officer did not force him to take it); Young, 339 Ga. App. at 311-12 (reversing the trial court’s suppression of breath-test evidence even though the defendant was in handcuffs at the time consent to the test was requested, the defendant was not informed that the test was not mandatory, and the officer asked for her consent to be tested without specifying that the test would be of her bodily substances, when the evidence did not show that the officer used fear, intimidation, threat of physical punishment, a lengthy detention, or coercion to obtain consent; the trial court did not find that her youth, education, or low intelligence negated the voluntariness of her consent; and the implied-consent notice read to her accurately reflected Georgia law); Kend'rick, 335 Ga. App. at 769 (affirming the denial of the defendant’s motion to suppress breath-test results when, even though the defendant claimed that she was not informed of her constitutional right against unreasonable searches and seizures and that being in handcuffs made her feel as though she had to consent to testing, there was no evidence that the officers used fear, intimidation, threat of physical punishment or a lengthy detention to obtain consent; the officer and the defendant conducted themselves calmly during the encounter; and there was no allegation that her youth, lack of education, or low intelligence negated the voluntariness of her consent); see also note 21 supra.


text:
    A17A0732.
    In the Interest of C. W., a child.
    (803 SE2d 618)
   Self, Judge.

This case arises from the juvenile court’s dismissal of notices of appeal from a contempt order issued against Cynthia Lain and C. W, her minor son, in connection with C. W.’s delinquency case. On appeal, appellants assert that the juvenile court erred by dismissing their notices of appeal. They also raise four other enumerations of error related to C. W.’s adjudication of delinquency and the juvenile court’s contempt order. For the reasons explained below, we affirm.

Following C. W.’s adjudication of delinquency, the juvenile court found Lain and C. W. in contempt for: (1) C. W.’s failure to appear at a status review hearing and (2) failing to comply with the terms of C. W.’s disposition order. See OCGA § 15-11-31 (a) and (b) (juvenile court authorized to find adult and child in contempt). On November 17, 2015, the mother’s counsel, Grady Roberts, filed a notice of appeal from the contempt order, and the mother filed a notice of appeal from the same order on behalf of her son. The notices of appeal requested that transcripts from every hearing in the case be included in the record. On December 10, 2015, the juvenile court clerk notified Lain and Roberts that they “will need to provide and pay for the court transcripts you have requested. Once we receive the original transcript and a copy we will begin the process of sending the record to the Court of Appeals. You will need to make arrangements with a certified court reporter to provide these transcripts.”

On September 19, 2016, the State moved to dismiss the appeals because neither Lain nor Roberts arranged for the filing of the transcripts requested in both notices of appeal. The juvenile court held a hearing on the motion on October 7, 2016, in which Lain was represented by Roberts. While we do not have a transcript of this hearing, the juvenile court made the following findings from the evidence presented:

The Court finds upon the testimony of the Juvenile Court Clerk Katie Cunningham that both Ms. Lain and Mr. Roberts were sent correspondence outlining the process for obtaining a transcript for appeal. Ms. Cunningham’s letters were sent to the addresses provided by each of them as shown on their respective Notices of Appeal. The Court finds that Ms. Cunningham testified that in the 10 months since the notice[s] of appeal[ ] were filed she has not received any communication from a certified Court Reporter regarding the acquisition of a transcript. Likewise, the Clerk testified that she does not recall having any telephone inquiries about the status of the appeal or confusion on the matter. Further, the Court finds that Mr. Roberts proffered that his office had made telephone contact with the Court Clerk in the spring of 2016. However, the transcript has yet to be produced. . ..
In considering OCGA § 5-6-48, the Court finds that there has been an unreasonable delay of 10 months which was the direct result of the inaction and lack of diligence on behalf of both Grady Roberts and Cynthia Lain. The Court finds that the delay is inexcusable and a continued effort on behalf of Ms. Lain to frustrate and delay the orderly operation of this Court.... The Court further finds that the lack of diligence by Mr. Roberts [was] unreasonable and inexcusable.

Based upon these findings, the juvenile court granted the State’s motion to dismiss the appeals.

1. In a one-sentence argument, Lain contends that the juvenile court erred by dismissing her appeal for failure to pay costs because “[t]he clerk of court never prepared a cost bill nor submitted a cost bill . . . for payment.” This argument has no merit because Lain incorrectly characterizes the basis for the juvenile court’s dismissal as her failure to pay costs, rather than her delay in causing the requested transcripts to be filed. Additionally, based upon the lack of a transcript of the October 7, 2016 hearing in this appeal, we must presume that the juvenile court’s findings were supported and that it did not abuse its discretion in dismissing the contempt appeals for failing to timely file the transcripts. See OCGA § 5-6-42 (party responsible for filing transcript shall do so within 30 days after notice of appeal filed); In the Interest of C. F., 255 Ga. App. 93, 95 (1) (564 SE2d 524) (2002); Miller v. State, 222 Ga. App. 641, 642 (475 SE2d 690) (1996); Denson v. Sanders, 155 Ga. App. 583, 585 (2) (271 SE2d 715) (1980).

Decided August 3, 2017.

Cynthia A. Lain, pro se.

Benjamin D. Coker, District Attorney, B. Ashton Fallin, Alisha B. Thompson, Assistant District Attorneys, for appellee.

2. We find no merit in Lain’s claim that the juvenile court clerk was obligated to provide the transcripts. In Miller, supra, we rejected a similar claim, finding that even an indigent defendant is obligated to take steps to ensure that a transcript is filed in a timely manner. 222 Ga. App. at 642. OCGA § 5-6-42 places the burden upon the appellant, not the lower court clerk, to cause transcripts to be prepared and filed. See, e.g., State v. Hart, 246 Ga. 212, 213 (1) (271 SE2d 133) (1980).

3. We cannot consider the claims raised in connection with C. W.’s adjudication of delinquency on August 20, 2014, as a notice of appeal was not filed within 30 days. See In the Interest of D. H., 332 Ga. App. 274, 278 (1) (c) (772 SE2d 70) (2015).

4. Our holdings in Divisions 1 and 2 preclude us from considering the merits of the remaining enumerations of error in this appeal as they relate to the merits of the trial court’s contempt order.

Judgment affirmed.

Dillard, C. J., and Ray, R J., concur.

       Lain’s brief identifies her son as an additional appellant. While the notice of appeal names only Lain as the appellant, parents are parties to a delinquency action and “have the right to appeal the juvenile court’s judgment and to participate in the appellate process.” In the Interest of J. L. B., 280 Ga. App. 556, 558 (2) (634 SE2d 514) (2006).

       The notice of appeal for the instant case states in bold type: “No [tjranscript to be included.”