author: PHIPPS, Presiding Judge.

text:
    A11A2067.
    MORRELL v. THE STATE.
    (721 SE2d 643)
   PHIPPS, Presiding Judge.

In connection with a shooting, Melvin Morrell was indicted for aggravated assault and possession of a firearm during the commission of a crime. A jury found him not guilty of aggravated assault and guilty of firearm possession. Morrell was sentenced on the firearm possession count. In this appeal, he argues that he should not have been sentenced thereon because the verdicts were inconsistent; he also contends that the final jury charge contained errors. Because no reversible error has been shown, we affirm.

The trial evidence showed that, on the night of August 9, 2008, three friends were walking along a street in a touristy area of Savannah. Suddenly, a car stopped near them, and the passenger got out of the car brandishing a revolver, leaving the passenger door open. The gunman walked about three feet toward the friends and demanded their money. When one of them reached into his pocket, the gunman shot him. The gunman darted back into the waiting car, which cruised away.

Meanwhile, the other two friends had fled on foot. One of them soon encountered a uniformed (but unarmed) employee of the local police department who was writing parking citations. She had just heard a loud “pop,” and he exclaimed to her that his friend had just been shot. He further pointed out to her that the shooter was a passenger in a car that was slowly approaching the two of them. While he hid beside a nearby parked car, the car with the shooter stopped beside the woman. The driver lowered his window, briefly spoke with the police department employee, whom he personally knew, then drove away. Soon thereafter, the police department employee described the incident to a police detective, identifying Morrell as the driver.

Minutes after the shooting, police searched the shooting scene, but found no shell casing. Hours after the shooting, police executed a search warrant at Morrell’s residence, finding in his bedroom “a single 357 revolver round.”

But when Morrell was interviewed by the police two days after the incident, he repeatedly denied that he had been in the car with the shooter — who, by that time, had been identified to police as Lawrence Gadson. (A videorecording of the approximately hour-long interview was shown to the jury.) During the police interview, Morrell stated that, earlier on the day of the shooting, he had spent time with his girlfriend, and he provided to police her contact information.

A few days later, that girlfriend told the police in an interview that Morrell had called her several times on the night in question and confided in her that he had been with Gadson during the time of the shooting incident; that Gadson had gotten him into big trouble; but that because of his friendship with Gadson, he would protect Gadson.

Morrell and Gadson were co-indicted for aggravated assault for shooting the pedestrian with a gun and with possession of a firearm during the commission of that aggravated assault. Gadson pled guilty and was sentenced. Later, at Morrell’s trial, Gadson testified as a state’s witness that only he (Gadson) had a gun; that the gun was a 357 revolver, which he later discarded; that he had been the shooter; that Morrell had been the driver of the car at the time of the shooting; that the car belonged to him (Gadson); and that Morrell had also been driving the car when they escaped a police chase that ensued moments after Morrell spoke with the police department employee.

Morrell took the stand, also. Contrary to his police statement, he admitted that he had been the driver. However, he claimed that he had planned only to cruise around town with Gadson; that he had stopped the car alongside the three pedestrians only because Gadson asked him to do so; that he did not know when he stopped the car that Gadson had a gun; that he did not know that Gadson was exiting the car to rob the pedestrians; and that he did not hear any gunshot. Morrell testified that he fled the police only because he had no license and because he and Gadson had marijuana in the car.

1. Morrell’s argument that the trial court erred in accepting the inconsistent verdicts of guilty of firearm possession and not guilty of aggravated assault is without merit. In Milam v. State, the Supreme Court of Georgia abolished the rule against inconsistent verdicts in criminal cases.

[AJppellate courts cannot know and should not speculate why a jury acquitted on one offense and convicted on another offense. The reason could be an error by the jury in its consideration or it could be mistake, compromise, or lenity. Stated another way, it is imprudent and unworkable to allow criminal defendants to challenge inconsistent verdicts on the ground that in their case the verdict was not the product of lenity, but of some error that worked against them. Such an individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury’s deliberations that the courts generally will not undertake.

The sole exception to the abolition of the inconsistent verdict rule applies “when instead of being left to speculate about the unknown motivations of the jury the appellate record makes transparent the jury’s reasoning why it found the defendant not guilty of one of the charges. . . .” The record before us, however, does not invoke that exception because it contains nothing that makes transparent the jury’s reasoning for finding Morrell not guilty on the aggravated assault count. Furthermore, the evidence was sufficient to support the guilty verdict on the firearm possession charge. The jury was free to reject Morrell’s and Gadson’s testimony that Morrell did not know that Gadson had a gun.

2. Morrell contends that the trial court erred in its instruction to the jury on “knowledge,” by specifically referencing therein the aggravated assault offense, but not the offense of possession of a firearm during the commission of a crime. Morrell concedes that, after the final charge was given, his lawyer did not object to the knowledge instruction. Notwithstanding, he asserts that plain error occurred and seeks review of the issue pursuant to OCGA § 17-8-58 (b).

“[Ujnder OCGA § 17-8-58 (b), appellate review for plain error is required whenever an appealing party properly asserts-an error in jury instructions.”

[I]n the context of OCGA § 17-8-58 (b), the proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings. If all three of these questions are answered in the affirmative, the appellate court has the discretion to reverse if the error seriously affects the fairness, integrity, or public reputation of the proceedings below. Satisfying all four prongs of this standard is difficult, as it should be.

Additionally, “[j]ury instructions must be read and considered as a whole when determining whether the charges contained error.”

As the trial transcript makes clear, and as he states in his appellate brief, Morrell’s defense was that, not only had he not been the shooter, but he also had not had the requisite intent to participate in robbery at gunpoint. Related to that defense, the trial court included apt instructions in the final charge to the jury that no person can be convicted of any crime unless and until each element of the crime is proved beyond a reasonable doubt; that if the state fails to so prove a crime, it is the jury’s duty to acquit the defendant as to that crime; that a crime is a violation of a statute in which there is “a joint operation of an act or omission to act and intention”; that intent is an essential element of any crime, which must be proved by the state beyond a reasonable doubt; and that there is no presumption that the defendant acts with criminal intent. In addition, the trial court included in the final charge to the jury apt instructions on parties to a crime, mere presence, and mere association.

Decided December 27, 2011

Steven L. Sparger, for appellant.

Larry Chisolm, District Attorney, Reginald C. Martin, Assistant District Attorney, for appellee.

Because the court gave the above charges, the omission of additional language concerning “knowledge” did not likely affect the outcome of the proceeding. Consequently, Morrell’s claim that plain error occurred fails.

3. There is no merit in Morrell’s claim that the tried court committed reversible error by denying his request to give a pattern jury instruction on “grave suspicion.” The principle covered therein was adequately explained elsewhere in the final jury charge as a whole.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

       See OCGA §§ 16-5-21 (a) (2) (defining aggravated assault with a deadly weapon); 16-11-106 (b) (defining possession of a firearm during commission of specifically described crimes).

       255 Ga. 560 (341 SE2d 216) (1986).

       Id. at 562 (2).

        Turner v. State, 283 Ga. 17, 20 (2) (655 SE2d 589) (2008) (citations and punctuation omitted).

       Id. at 20-21 (2) (citations and punctuation omitted).

       See generally Guajardo v. State, 290 Ga. 172, 174-175 (2) (718 SE2d 292) (2011) (jury question submitted during deliberation, asking whether it was “possible to find defendant not guilty on [one count], but find guilty on other counts” did not sufficiently expose jury’s rationale for acquittal and its inconsistency with the guilty verdicts). Compare King v. Waters, 278 Ga. 122, 123 (1) (598 SE2d 476) (2004) (exception applied because there was no need to speculate whether the jury verdict was the product of lenity or of legal error, where record showed that the predicate offense was vacated because of ineffectiveness of appellate counsel); Turner, supra at 21 (2) (exception applied because there was no need to speculate whether the jury verdict was the product of lenity or of legal error, where the jury made an express finding upon the verdict form of justification as to one count but inconsistently found the defendant guilty of other charges based on the same conduct).

       See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979) (in assessing sufficiency of the evidence to support a conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt’’); King, supra (conviction on the compound offense should be upheld so long as the evidence will support it).

       OCGA §§ 16-2-20 (defining parties to a crime); 16-2-6 (trier of facts may find criminal intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted); Branchfield v. State, 287 Ga. 869, 870 (1) (700 SE2d 576) (2010); Odom v. State, 279 Ga. 599 (619 SE2d 636) (2005).

        State v. Kelly, 290 Ga. 29, 32 (1) (a) (718 SE2d 232) (2011); see Guajardo, supra at 175 (4) (despite trial counsel’s failure to object to jury instruction at trial, considering whether instruction constituted plain error because appellant had properly enumerated and argued the issue on appeal).

        Kelly, supra at 33 (2) (a) (citations and punctuation omitted); see Guajardo, supra at 176 (4).

        Guajardo, supra (citation omitted).

       See Sapp v. State, 290 Ga. 247, 249-251 (2) (719 SE2d 434) (2011) (citation and punctuation omitted); see generally Hightower v. State, 287 Ga. 586, 590 (4) (698 SE2d 312) (2010).

       See Sapp, supra; Kelly, supra at 34 (2) (b).

        Walker v. State, 282 Ga. 406, 408 (2) (651 SE2d 12) (2007) (refusal to give a requested charge is error only where the request made is a correct statement of law that is pertinent and material to an issue in the case and contains information that is not substantially covered by the charge actually given); Mohamed v. State, 276 Ga. 706, 710-711 (4) (583 SE2d 9) (2003) (failure to give an instruction in the exact language requested by defendant was not harmful error, where principle asserted was adequately covered elsewhere in the jury charge as a whole).


source: Caselaw Access Project

author: SMITH, Presiding Judge.

license: Public Domain

text:
    A10A0059.
    WILDER v. THE STATE.
    (721 SE2d 661)
    Decided December 28, 2011.

      Michael O. Horgan, for appellant.

      Dennis C. Sanders, District Attorney, Rindi L. Harbeson, Kevin R. Majeska, Durwood R. Davis, Assistant District Attorneys, for appellee.
   SMITH, Presiding Judge.

In Division 1 of Wilder v. State, 304 Ga. App. 891 (698 SE2d 374) (2010), we affirmed the trial court’s denial of Glenn Wilder’s motion to suppress evidence on the ground that the independent source doctrine allowed the admission of the evidence independent of any constitutional violation. Id. at 891-894 (1). In Wilder v. State, 290 Ga. 13 (717 SE2d 457) (2011), the Georgia Supreme Court reversed our decision on the ground that the independent source doctrine did not apply. Id. at 16-17 (2). The Supreme Court did not address the remaining divisions of our opinion, and our rulings in those divisions are not inconsistent with the Supreme Court’s decision. Accordingly, we vacate only Division 1 of our opinion, and we adopt the Supreme Court’s decision as our own as to that division.

As stated by the Georgia Supreme Court, the trial court also denied Wilder’s motion to suppress on the ground that a third party had given consent for the seizure of the briefcase. The Supreme Court noted evidence in the record showing that the third party assumed the role of bailee, but here, the trial court made no findings regarding this issue. Because of the lack of findings by the trial court which could affect the proper resolution of the motion, we remand this case to the trial court for further proceedings consistent with the Georgia Supreme Court’s decision.

Judgment affirmed in part, reversed in part, sentence vacated, and case remanded with direction.

Mikell, C. J., and Adams, J., concur.

       The Supreme Court declined to decide “whether the circumstances would warrant application of the ‘inevitable discovery’ doctrine, a close relative of the independent source doctrine,” holding that “[t]hese issues are best left on remand, with the benefit of additional briefing and argument as necessary.” 290 Ga. at 17 (3).


author: MlKELL, Chief Judge.

text:
    A11A1564.
    ANGUIANO v. THE STATE.
    (721 SE2d 652)
   MlKELL, Chief Judge.

Reymundo Anguiano was indicted for criminal attempt to commit child molestation, OCGA § 16-6-4 (a), and criminal attempt to commit enticing a child for indecent purposes, OCGA § 16-6-5 (a). He moved to suppress videotaped statements he made during a pre-arrest interview with a television correspondent. Following a hearing at which the arresting officer testified, the trial court denied the motion. The videotape in question was viewed by the jury at Anguiano’s trial, and he was found guilty on both charges. He appeals the 'denial of his amended motion for new trial, contending that the trial court erred in denying his pretrial motion to suppress. Discerning no error, we affirm.

Anguiano argues that the trial court erred in ruling that his pre-arrest statement was voluntarily made in a non-custodial setting and was therefore admissible in evidence even though he was not given prior Miranda warnings.

Miranda warnings “are required only when a law enforcement officer [or agent] initiates questioning of an individual who has been taken into custody or otherwise significantly deprived of his freedom.”

A person is considered to be in custody and Miranda warnings are required when a person is (1) formally arrested or (2) restrained to the degree associated with a formal arrest. Unless a reasonable person in the suspect’s situation would perceive that he was in custody, Miranda warnings are not necessary.

Further, in addressing this issue, “the relevant inquiry is how a reasonable person in the suspect’s position would perceive his situation.” “Whether one is in custody for Miranda purposes is a mixed question of law and fact”; and on appellate review, we will not disturb the findings of fact that underpin the trial court’s legal conclusions made at a suppression hearing, “unless they are clearly erroneous.” In the case at bar, the evidence supports the trial court’s ruling, and we find no clear error.

The record reflects that Anguiano was caught in a ruse intended to catch child molesters who operate on-line. The ruse used adult decoys posing on the internet as underage girls to lure adult males to a house under the pretense that an unsupervised girl was waiting to have sex with them. The operation was run jointly by NBC, which was filming a television production about catching on-line sexual predators, and Perverted Justice (“PJ”), a “watchdog group” dedicated to exposing adults who use the internet to seek sexual activity with children. The Harris County Sheriffs Office invited PJ to film the NBC show locally and helped NBC find an appropriate location, an unoccupied dwelling with a detached carport separated by some 15 feet from the house. NBC arranged to rent the house, and NBC’s crew brought in “truckloads of equipment,” which they set up inside the house. NBC allowed the police to set up a “control room” in a room located over the carport, but the officers were not ever allowed inside the house. The sheriffs office did not pay NBC or PJ in connection with the filming, nor did NBC or PJ make any payments to the sheriffs office.

On July 22, 2006, Anguiano began chatting on-line with a person whom he believed to be an under-age girl, but who was actually an adult posing as a 14-year-old girl. This adult was working as a decoy for PJ. In the course of the chats, which were not monitored or observed by law enforcement officers, Anguiano indicated that he wanted to meet with the “girl” for sex. That same day, Anguiano drove several hours in order to meet with the “girl” at an arranged location — the house which had been rented by NBC. When he arrived, the decoy greeted him and beckoned him to come into the house for some “sweet tea.” She then disappeared inside the house. When Anguiano entered the house, Chris Hansen, a television correspondent with NBC, emerged from an inner room. Hansen calmly asked Anguiano to “sit down” and to “do me a favor, let me see your hands.”

Hansen then proceeded to interview Anguiano, questioning him about his intent in coming to the house and about the nude picture he had sent to the decoy over the internet. Anguiano was not informed of his rights under Miranda before this interview took place. During the interview, which was videotaped, Anguiano made several incriminating statements, such as that he brought a condom with him to the rendezvous with the decoy. Anguiano also acknowledged that he had seén the NBC show and that he thought he was going to be “processed.” Hansen revealed that he was with “Dateline NBC” and told Anguiano that he was free to leave. NBC cameramen surrounded Anguiano, who began to leave hesitantly, still wondering if he was going to be “processed.”

When Anguiano left the house, he was arrested. Lt. Sven Armbrust, an officer with the Harris County Sheriffs Office since 1994, was the ranking officer on the scene on the day of Anguiano’s arrest. Earlier that day, Del Harvey, an employee of PJ, had given Armbrust copies of the chat logs between Anguiano and the decoy, which indicated that Anguiano might show up at the house. Arm-brust testified that Harvey worked for PJ and was not a “law enforcement person.” According to Armbrust’s testimony, no law enforcement officers were visible to Anguiano when he arrived at the house; Anguiano had no contact with law enforcement until after he exited the house; and the arresting officers left the carport room and took position outside the residence only after Anguiano had already gone inside. Armbrust testified that he had no conversations with Hansen at all; that the police officers “didn’t have any direct contact with what NBC was to do”; and that the police had no prior arrangement with Chris Hansen as to whether Hansen would interview Anguiano at all or, if an interview took place, what questions Hansen might ask. Based on his familiarity with the television show, however, Armbrust anticipated that the event would be videotaped and that an interview with the suspect would take place.

The trial court credited Armbrust’s testimony and found that in conducting the interview at issue, Hansen was not acting as an agent of the police; that Anguiano was not “in custody” when the interview occurred; and therefore, that no prior Miranda warning was required and the statements at issue were admissible. Anguiano contends that he was “in custody” when he arrived at the house and answered Hansen’s questions, because Hansen was working on a joint venture run by NBC, PJ, and the sheriffs office; and because, as it turned out, Anguiano was arrested once he left the house. Because the trial court’s determination is supported by some evidence in the record, we conclude that it is not clearly erroneous.

In determining if an individual is in custody for purposes of Miranda, “courts must inquire into whether that person’s freedom of movement was restrained to a degree associated with a formal arrest.” In addressing this issue, we consider whether, under the totality of the circumstances, “a reasonable person would have felt at liberty to terminate the interrogation and leave.” Because “[t]he standard is an objective one,” a “reasonable person” is “one neither overly apprehensive because of criminal conduct nor insensitive to the seriousness of the circumstances.” Applying these guidelines, we find no error in the trial court’s ruling that Anguiano was not in custody for Miranda purposes when he made the statements at issue to Hansen.

“Miranda warnings are not a prerequisite to the admission of statements made by a defendant to persons other than law enforcement officers or their agents.” In determining whether Hansen was acting as an agent of the state, we again look at the totality of the circumstances. Although the sheriffs office initially invited PJ and NBC into the county and identified a house for NBC to rent, it was NBC that arranged to rent the house, paid the rent, and directed the film production. The scheme to engage on-line predators was devised by PJ, not by police; and the on-line chats which lured Anguiano to the house were conducted by PJ without police monitoring, supervision, or direction. No one at NBC or PJ was paid by the sheriffs office; the sheriffs office did not authorize them to act nor did it direct their actions, in particular with regard to the questions Hansen chose to ask in the interview or even as to whether such an interview would take place at all; and the interviewer, Hansen, was found by the court to be “an aggressive television newsreporter pursuing his professional employment^ and] not involved in law enforcement or employed by any state agency.” Further, police were not present at Hansen’s interview with Anguiano; indeed, they were not even in the building. The mere fact that there was cooperation between the private entities involved and the police does not by itself create an agency relation. We conclude that there was evidence to support the trial court’s finding that Hansen was not an agent of the state.

Decided December 28, 2011.

Michael E. Garner, for appellant.

Julia Fessenden Slater, District Attorney, Jennifer E. Dunlap, Assistant District Attorney, for appellee.

As to whether Anguiano was “in custody” for Miranda purposes when the interview took place, we note that Anguiano came to the location, a private house, of his own free will. There is “no evidence that he was physically restrained or otherwise prevented from leaving the [house] until after he admitted to criminal conduct.” The record makes clear that Anguiano’s freedom of movement was not restricted until he was placed under arrest after he exited the house. Further, “[e]ven where police have probable cause to arrest at the time of the interrogation and intend to arrest the suspect in the future, the intent to arrest in the future is irrelevant to the custody issue, unless the police communicate the intent during the course of the interrogation.” In this case, police were solicitous not to show their presence before Anguiano entered the house, and they certainly did not disclose their view that he was a suspect or that they intended to arrest him later. Also, Anguiano’s subjective view of his situation, based on having seen the NBC television show previously, was not determinative of whether he was in custody. Accordingly, the evidence authorized a finding that a reasonable person in Anguiano’s position would have believed that he was free to terminate the interview and leave.

We conclude that the trial court did not err in admitting into evidence the statements Anguiano made in the interview with Hansen.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       (Citation and emphasis omitted.) Glean v. State, 197 Ga. App. 34, 35 (4) (397 SE2d 459) (1990), citing Grogins v. State, 154 Ga. App. 606, 607 (2) (269 SE2d 98) (1980).

       (Punctuation omitted.) State v. Folsom, 285 Ga. 11, 12-13 (1) (673 SE2d 210) (2009), citing Sewell v. State, 283 Ga. 558, 560-561 (2) (662 SE2d 537) (2008).

       (Citations and punctuation omitted.) McAllister v. State, 270 Ga. 224, 228 (1) (507 SE2d 448) (1998). Accord Sewell, supra at 561 (2).

       (Footnote omitted.) Axelburg v. State, 294 Ga. App. 612, 613 (1) (669 SE2d 439) (2008).

       (Citation and punctuation omitted.) Hendrix v. State, 230 Ga. App. 604, 605 (1) (497 SE2d 236) (1997). Accord Durrence v. State, 307 Ga. App. 817, 818 (1) (706 SE2d 180) (2011).

       (Citation and punctuation omitted.) Grayer v. State, 282 Ga. 224,228 (3) (647 SE2d 264) (2007). Accord Hendrix, supra.

       (Citation and punctuation omitted.) Id. Accord Durrence, supra at 819 (1).

        Durrence, supra.

       (Punctuation and footnote omitted.) Axelburg, supra.

       (Citations omitted.) Bethea v. State, 251 Ga. 328, 330-331 (7) (304 SE2d 713) (1983) (statements made by defendant while incarcerated to his Army commanding officer were admissible). See Harper v. State, 249 Ga. 519, 528 (4) (b) (292 SE2d 389) (1982) (female who visited defendant in jail was not acting as agent of FBI even though FBI knew she was visiting and paid her travel expenses).

        In the Interest of T. A. G., 292 Ga. App. 48, 51 (1) (b) (663 SE2d 392) (2008), citing Cook v. State, 270 Ga. 820, 827 (2) (514 SE2d 657) (1999) (issue of “custody” where challenged statements were made by incarcerated defendant to his father, an FBI agent).

       See Roberson v. State, 265 Ga. 658, 659 (1) (461 SE2d 212) (1995) (defendants’ statements made in media interview were admissible even though interview could not have occurred without police cooperation, where police had no control over the questions posed by reporter).

       See Durrence, supra (defendant voluntarily went to DFCS office where interview took place).

       Id. at 820 (1).

       (Citation omitted.) State v. Billings, 303 Ga. App. 419, 421 (693 SE2d 627) (2010).

       See Sosniak v. State, 287 Ga. 279, 281 (1) (a) (1) (695 SE2d 604) (2010).

       See Axelburg, supra at 615 (1).


text:
    A11A1663.
    WALKER v. THE STATE.
    (721 SE2d 661)
    Decided December 28, 2011.

      David G. Daniell, for appellant.

      T. Rabb Wilkerson III, District Attorney, Daryl E. Manns, Assistant District Attorney, for appellee.
   SMITH, Presiding Judge.

Wendell D. Walker was convicted of possession of cocaine with intent to distribute. His motion for new trial was denied, and he appeals, asserting only the general grounds.

Walker’s perfunctory appellate brief contains less than three pages of argument in which he recites no facts, references no testimony or evidence, and simply lists a series of cases referring to the general standard of review and burden of proof in sufficiency cases. This brief is completely inadequate to support Walker’s claim of error. See Court of Appeals Rule 25 (c).

Nevertheless, we have reviewed the record on appeal and find the evidence sufficient to uphold Walker’s conviction under the standard established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Accord White v. State, 310 Ga. App. 386, 389-390 (2) (a) (714 SE2d 31) (2011).

Judgment affirmed.

Mikell, C. J., and Dillard, J., concur.


author: Mikell, Chief Judge.

text:
    A11A1669.
    SPRINT TRANSPORT GROUP, INC. v. CHINA SHIPPING NA AGENCY, INC.
    (721 SE2d 659)
   Mikell, Chief Judge.

Sprint Transport Group, Inc. (“Sprint”) appeals from the trial court’s order and judgment striking its answer for failure to prosecute and entering judgment of $77,720 plus interest and court costs in favor of China Shipping NA Agency, Inc. (“China Shipping”). The trial court rendered this decision upon Sprint’s failure to appear at a summary judgment hearing. Sprint avers that it never received notice of the hearing. Because the record contains insufficient evidence upon which we may base a decision, we vacate the order and judgment and remand the case to the trial court with direction. The relevant facts follow.

China Shipping filed a suit on account against Sprint on November 12, 2008. Sprint answered, and, inter alia, denied owing the debt “as phrased” in the complaint. China Shipping then moved for summary judgment, and Sprint filed a response, denying that it is the party responsible for the debt. On January 4, 2011, Sprint failed to appear for a hearing on the summary judgment motion. The trial court found that

after notice, and the docket having been sounded and the case having been called; and [c]ounsel for [pjlaintiff having appeared and announced ready and [djefendant having failed to appear and [u]pon motion of [p]laintiff to strike the [ajnswer of [defendant for failure to prosecute ... it is HEREBY ORDERED that the [defendant's [a]nswer is STRUCK and judgment is herewith entered in favor of the [pjlaintiff and against the [defendants.

Sprint appeals, alleging that the trial court erred in (1) granting China Shipping’s oral motion to strike Sprint’s answer; (2) entering judgment for China Shipping; (3) not conducting a hearing; (4) not sending a rule nisi to provide notice of the hearing date; and (5) awarding prejudgment interest to China Shipping.

China Shipping neither filed an appellee’s brief, nor moved to supplement the record. When an appellee presents no arguments, Court of Appeals Rule 25 (b) (1) provides that “[e]xcept as controverted, appellant’s statement of facts may be accepted by this Court as true.” Here, we decline to accept as true Sprint’s statement that it did not receive notice because, as discussed below, a fact question exists on this point given the trial judge’s order indicating that Sprint received notice of the hearing. Also, Sprint apparently provided no verification or affidavit below attesting to its lack of notice.

Despite the trial judge’s finding that the hearing was held “after notice,” the record before us contains no rule nisi or other evidence indicating that the parties were properly served with notice of the hearing date. Nor is there any indication in the record that Sprint actually received notice, although Sprint’s notice of appeal asks the trial court clerk to “omit nothing from the record on appeal.”

In the context of notice requirements upon motion for a summary judgment hearing, OCGA § 9-11-6 (d) provides that “[a] written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than five days before the time specified for the hearing, unless a different period is fixed by this chapter or by order of the court.” OCGA § 9-11-5 (b) further provides that “[sjervice upon the attorney or upon a party shall be made by delivering a copy to the person to be served or by mailing it to the person to be served at the person’s last known address.” “Compliance with the notice requirement [of OCGA § 9-11-5 (b)] is mandatory, not discretionary.” Absent notice of the hearing to the proper party or attorney of record, “the judgment. . . suffers from a nonamendable defect.”

While we have upheld a trial court’s judgment where, although a party denies receiving notice, the record contains a notice reciting that it was sent to counsel of record and the trial court in its order indicates that a notice was sent, that is not the situation in the instant case. Here, the record’s lack of any notice or rule nisi directly conflicts with the trial court’s finding that the case was called only “after notice” to the parties.

This dichotomy raises questions of fact about both the issuance and service of notice. We have found reversible error where a party either did not receive notice or did not receive sufficient notice of a summary judgment hearing, and where a party did not have notice of the trial court’s intent to rule on a summary judgment motion.

Additionally, a question remains as to whether the appellate record is complete. Where the record on appeal is incomplete, or a question remains as to completeness, we may exercise our discretion and vacate the trial court’s summary judgment order, remanding the case for further consideration.

Accordingly, we vacate the order and judgment and remand the case for proceedings not inconsistent with this opinion.

Judgment vacated and case remanded with direction.

Smith, P. J., and Dillard, J., concur.

Decided December 28, 2011.

Jonathan P Waters, for appellant.

Sherwin P. Robin, for appellee.

       (Emphasis supplied.)

       (Emphasis supplied.)

        Heath v. Beech, 300 Ga. App. 756, 757 (2) (686 SE2d 283) (2009) (counsel’s assertion of lack of notice, absent supporting affidavit or other competent evidence, is insufficient).

       (Citation omitted.) Randall v. Randall, 274 Ga. 107, 109 (2) (549 SE2d 384) (2001).

       (Citation omitted.) Id.

        Blue Stone Lofts, LLC v. D’Amelio, 268 Ga. App. 355, 358-359 (601 SE2d 719) (2004).

       See Goodwin v. Richmond, 182 Ga. App. 745, 746 (2) (356 SE2d 888) (1987) (notice of summary judgment hearing by publication does not comply with OCGA § 9-11-6 (d)); Saturday Enterprises, Inc. v. Citizens Bank & Trust of West Georgia, 308 Ga. App. 491, 492 (707 SE2d 875) (2011) (oral notice of summary judgment hearing insufficient under OCGA § 9-11-6 (d)).

        Morrison v. Morrison, 299 Ga. App. 758, 760-761 (2) (683 SE2d 696) (2009) (general notice providing that all “ripe motions” be heard is insufficient to notify party of summary judgment proceeding).

        Grimes v. State, 303 Ga. App. 808, 812-813 (1) (b), n. 4 (695 SE2d 294) (2010) (vacating in part and remanding where record was incomplete on appeal and this court could not resolve whether trial court’s order should be affirmed as right for any reason). Accord City of Gainesville v. Dodd, 275 Ga. 834, 838-839 (573 SE2d 369) (2002).

        Georgia Neurology & Rehabilitation, P.C. v. Hiller, 310 Ga. App. 202, 207 (2) (b) (712 SE2d 611) (2011) (summary judgment vacated, case remanded because of incomplete record on appeal and question as to whether trial court had complete document).


text:
    A11A1782.
    HILBUN v. THE STATE.
    (721 SE2d 656)
   MlKELL, Chief Judge.

This Court granted Amber Hilbun’s application for interlocutory appeal to determine whether the trial court correctly denied her motion to suppress by concluding that the officer had a reasonable, articulable suspicion for detaining her. For the reasons set forth below, we affirm.

At a hearing on a motion to suppress, the trial judge sits as the trier of fact. And Georgia law has long held that the trier of fact may believe or disbelieve all or any part of the testimony of any witness. Thus, on appellate review of a trial court’s order on a motion to suppress evidence, we never second-guess the trial court’s factual findings where they are based on testimonial evidence. We construe the evidence most favorably to the upholding of the trial court’s findings and judgment and affirm unless the court has committed an error of law.

Here, the trial court found that, on April 14, 2010, at the request of parole officers, Sergeant Christopher Brewer, a supervisor of the Narcotics Unit of the Laurens County Sheriffs Department, took part in a search of parolee John Shillingburg’s residence in Laurens County. Several other officers also participated in the search and, according to Hilbun, at least four police vehicles arrived at the residence. When Brewer arrived, he saw a vehicle parked in front of the house with two passengers, but no one in the driver’s seat. Two other officers went to the vehicle and began questioning its occupants. While Brewer was standing in the door of Shillingburg’s single wide trailer, he learned that Amber Hilbun, who was inside the trailer, had been the driver of the vehicle. He asked her to step outside of the residence and talk to him, and they walked 20 to 30 feet to the edge of the driveway. Brewer asked Hilbun her name, and she initially gave him a false name. Because Brewer was aware that Shillingburg was known for dealing narcotics, he asked Hilbun if she were present to buy marijuana and asked her the identity of the two passengers in her car. Although she described the male occupant as her boyfriend, Hilbun could not remember his name. She did, however, identify the female occupant. Brewer then asked if he could search her, and Hilbun emptied her pockets of ten tan and blue pills suspected to contain hydrocodone, a Schedule III substance. Although Hilbun first said the pills were hers, she then told Brewer that she was there to sell the pills to Shillingburg.

United States Supreme Court holdings sculpt out, at least theoretically, three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause. In the first tier, police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave. The second tier occurs when the officer actually conducts a brief investigative Terry stop of a citizen. In this level, a police officer, even in the absence of probable cause, may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity.

The state argues that the trial court incorrectly found this to be a second tier encounter. The trial court’s finding, however, is supported by evidence and is not clearly erroneous. Hilbun testified that four police cars containing numerous officers arrived; she was told to go outside by a uniformed armed officer; the passengers in her car were outside the car being questioned by officers; and she felt she could not decline the instruction to go outside and did not feel like she could leave.

Decided December 28, 2011.

Catherine S. Bernard, for appellant.

Craig Fraser, District Attorney, for appellee.

The remaining inquiry is whether Brewer had a particularized and objective basis for suspecting that Hilbun was involved in criminal activity at the time he told her to leave the residence and talk to him. We find that he did. Brewer was aware that Shillingburg was known for dealing narcotics from a number of prior cases he had personally worked on, and Brewer believed that Hilbun was there to buy marijuana. Further, when asked for identification, Hilbun did not have any on her and, initially, gave Brewer a false name. Also, she could not identify the man in the car with her, although she said he was her boyfriend.

“The determination of whether articulable suspicion exists must depend upon all the circumstances gathered from objective observations and the modes or patterns of operation of certain kinds of lawbreakers.”

The trained police officer makes a determination . . . based upon inferences and deductions that might well elude an untrained person. In reaching such deductions, police officers are authorized to make common sense conclusions about human behavior. Additionally, the evidence must be viewed from the perspective of what action a reasonable police officer would take.

Therefore, we conclude that the evidence provided sufficient reasonable articulable suspicion to support a brief detention of Hilbun.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

       (Punctuation and footnotes omitted.) State v. Rowell, 299 Ga. App. 238, 238-239 (682 SE2d 343) (2009).

       Although the trial court’s order refers to a “parole search warrant,” there is no warrant in the record before us, and Brewer did not testify there was a warrant. This, however, does not affect our analysis. See generally Thomas v. State, 287 Ga. App. 163 (651 SE2d 116) (2007) (discussing Fourth Amendment waiver as a condition of parole).

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

       (Citations, punctuation and footnotes omitted.) Holmes v. State, 252 Ga. App. 286, 287-288 (556 SE2d 189) (2001).

        Boykins v. State, 307 Ga. App. 404, 406 (1) (705 SE2d 186) (2010) (“Whether police-citizen contact qualifies as a first-tier encounter is a mixed question of fact and law, and we will uphold the trial court’s findings of fact if there is any evidence to support them.”) (footnote omitted).

        Oglesby v. State, 311 Ga. App. 615 (716 SE2d 742) (2011).

       (Citations and punctuation omitted.) State v. Causey, 246 Ga. App. 829, 832 (1) (b) (540 SE2d 696) (2000).

       Id.; Jones v. State, 237 Ga. App. 847, 849 (1) (515 SE2d 841) (1999); cf. Fritzius v. State, 225 Ga. App. 642, 646-647 (484 SE2d 743) (1997).


author: Dillard, Judge.

text:
    A11A1799.
    FARRIS v. FIRST FINANCIAL BANK et al.
    (722 SE2d 89)
   Dillard, Judge.

In this civil action, Harold J. Farris sued First Financial Bank and the law firm of Campbell, Martin & Manley, LLP (collectively “defendants”), alleging that defendants wrongfully foreclosed on property that Farris obtained from his former wife via a divorce decree. Following a grant of summary judgment in favor of defendants as to all his claims, Farris appeals, arguing that the trial court erred in finding as a matter of law that defendants (1) complied with the notice provisions in the security deed related to the subject property, and (2) complied with the notice requirement in OCGA § 44-14-162.2 based on the fact that Farris was not a debtor, as defined by OCGA § 44-14-162.1, who was entitled to notice. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the nonmovant, the record shows that on December 21, 1982, Rosylind Stanton and Jimmie Norman purchased property at 1763 Sylvan Road, S.W, Atlanta, Georgia, and financed the purchase by executing a loan note and deed to secure debt as to the property in favor of the Federal National Mortgage Association (“FNMA”). On July 31, 1992, Stanton and Norman transferred their interest in the property by quitclaim deed to Farris’s then-wife, Pauline.

In September 1996, First Financial Bank (“FFB”), the successor in interest to FNMA, notified Pauline Farris that the loan was in default and that foreclosure proceedings would be initiated, pursuant to the power of sale contained in the security deed, if she did not cure the default. After receiving no response, on December 30, 1996, FFB had its attorneys notify Pauline Farris by letter that unless the default was cured within 30 days, the debt would be accelerated and foreclosure proceedings would ensue, pursuant to the terms of the security deed. The letter was sent by certified mail to both the property’s Sylvan Road address and to the home address for Pauline Farris. The very next day, FFB’s attorneys received a letter that was purportedly signed by Pauline Farris, stating that her husband, Harold, had authority to negotiate with FFB with regard to the property. Shortly thereafter, Harold Farris contacted FFB’s attorneys and informed them that he would cure the default on the note.

Despite Farris’s assurances, by January 31, 1997, the debt was still in default, and thus, FFB’s attorneys once again sent letters via certified mail to Pauline Farris at the property address and her home address, notifying her that the debt had been accelerated and that a foreclosure sale was scheduled for March 4, 1997. However, on the date of the sale, Farris faxed FFB’s attorneys a copy of a Chapter 13 bankruptcy petition allegedly filed by Pauline Farris earlier that same day. Consequently, FFB’s attorneys cancelled the foreclosure sale. But less than one month later, FFB’s attorneys received a telephone call from Pauline Farris’s divorce attorney, who informed them that Harold Farris was not authorized to negotiate curing the default on the loan and that Pauline Farris had not signed or filed the petition that was pending in the bankruptcy court. Nevertheless, over the course of the next few months, Harold Farris continued to contact FFB’s attorneys to convey his intention to cure the default on the loan. And on September 30, 1997, Harold Farris sent another letter to FFB’s attorneys, which was purportedly signed by Pauline and which stated that she would be transferring the property to Farris via a quitclaim deed in November of that year. Enclosed with the letter was the purported deed, which was postdated November 24, 1997.

On October 8, 1997, the U. S. Bankruptcy Court for the Northern District of Georgia lifted the automatic stay pertaining to the Sylvan Road property. As a result, on October 20, 1997, FFB’s attorneys sent a second default notice, again via certified mail, to Pauline Farris at the property’s address and to her home address. Notably, the receipt for the letter sent to Pauline Farris’s home address was signed as received by “H J Farris.” Despite this notice, the default was not cured. Thus, on December 2, 1997, FFB’s attorneys sent certified letters to the property address and to Pauline Farris’s home address, notifying her that the debt had been accelerated and that a foreclosure sale was scheduled for January 6, 1998. In addition, beginning on December 9, 1997, and continuing for the next four weeks, a notice of the impending sale of the Sylvan Road property appeared in the Fulton County Daily Report.

Subsequently, Farris informed FFB’s attorneys that the property had been awarded to him via a divorce decree, and he again expressed his interest in bringing the debt current. However, the quitclaim deed transferring Pauline Farris’s interest in the property to her now-former husband was not recorded until January 5, 1998, and Farris made no attempt to cure the default. On January 6, 1998, FFB purchased the property at the foreclosure sale.

Shortly thereafter, Farris sued FFB and its attorneys, alleging that defendants wrongfully foreclosed on the Sylvan Road property, which he now owned. The case was delayed for nearly ten years due to Farris’s involvement in several unrelated bankruptcy proceedings, but in May 2010, defendants filed motions for summary judgment, arguing that the foreclosure complied with the notice provisions in the security deed as well as the relevant statutes. After conducting a hearing on the matter, the trial court granted defendants’ motions for summary judgment as to all of Farris’s claims. This appeal follows.

At the outset, we note that summary judgment is appropriate when “the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.” This burden is met by a defendant when the court is shown “that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of [the] plaintiffs case.” And if the moving party meets this burden, “the nonmoving party cannot rest on its pleadings, but must point to specific evidence giving rise to a triable issue.” With these guiding principles in mind, we turn now to Farris’s enumerations of error.

1. Farris contends that the trial court erred in granting summary judgment because defendants failed to provide him with notice of the default, acceleration of the debt, and foreclosure, pursuant to the security deed. We disagree.

Our Supreme Court has held that
[i]n the absence of a specific provision to that effect, the holder of a mortgage or trust deed with power of sale, is not required to give notice of the exercise of the power to a subsequent purchaser or incumbrancer; and the validity of the sale is not affected by the fact that such notice is not given.

Indeed, “[t]he law imposes no duty upon a person holding a prior mortgage or deed of trust to notify one holding a similar subsequent or junior lien or incumbrance upon the same property of his intention to sell the property under his mortgage or deed of trust.” And “[a] 11 that is required of him is to advertise and sell the property according to the terms of the instrument, and that the sale be conducted in good faith.”

Here, paragraph 14 (a) of the security deed granted to FFB’s predecessor (FNMA) provides that: “any notice to Borrower provided for in this Deed shall be given by mailing such notice by certified mail addressed to Borrower at the Property Address or at such address as Borrower may designate by notice to Lender as provided herein[.]” And the acceleration clause provided in paragraph 18 of the security deed states that notice of an impending acceleration due to the borrower’s default is to be provided in the same manner required by paragraph 14. Moreover, it is undisputed that defendants provided notice of the default and the acceleration via certified mail sent to both the property address and to the address of Pauline Farris, who had assumed the obligations of the original borrowers. Thus, the defendants complied with the requirements of the security deed, which is all the law requires. Accordingly, the trial court did not err in granting summary judgment on this ground.

Farris, nevertheless, complains that he, specifically, was not provided with notice. But it is undisputed that Farris was never a party to the security deed and had no legal interest in the property at the time the notices were sent on October 20, 1997. And given that “one not in privity of contract with another lacks standing to assert any claims arising from violations of the contract[,]” it would be of no consequence even if defendants had failed to comply with the notice provisions in the security deed. Thus, Farris’s claim fails as a matter of law.

2. Farris also contends that the trial court erred in granting summary judgment because defendants failed to comply with the notice of foreclosure requirements encompassed by OCGA §§ 44-14-162.1 and 44-14-162.2. We disagree.

OCGA § 44-14-162.2 (a), in relevant part, provides:
Notice of the initiation of proceedings to exercise a power of sale in a mortgage, security deed, or other lien contract shall be given to the debtor by the secured creditor no later than 30 days before the date of the proposed foreclosure. Such notice shall be in writing, shall include the name, address, and telephone number of the individual or entity who shall have full authority to negotiate, amend, and modify all terms of the mortgage with the debtor, and shall be sent by registered or certified mail or statutory overnight delivery, return receipt requested, to the property address or to such other address as the debtor may designate by written notice to the secured creditor. . . ,

Notably, “[i]n foreclosure proceedings instituted pursuant to OCGA § 44-14-160 et seq., only a debtor, as defined by statute, is entitled to receive any notice of the initiation of foreclosure other than by advertisement.” OCGA § 44-14-162.1 defines the term “debtor” as meaning “the grantor of the mortgage, security deed, or other lien contract.” Importantly, the statute further provides:

In the event the property encumbered by the mortgage, security deed, or lien contract has been transferred or conveyed by the original debtor, the term “debtor” shall mean the current owner of the property encumbered by the debt, if the identity of such owner has been made known to and acknowledged by the secured creditor prior to the time the secured creditor is required to give notice pursuant to Code Section 44-14-162.2.

Here, the evidence is undisputed that on October 20, 1997, defendants provided Pauline Farris, who had obtained the subject property from the original debtors via a quitclaim deed, with notice of default by sending certified letters to both the property address and Pauline Farris’s home address. It is also uncontroverted that on December 2, 1997, defendants provided Pauline Farris with notice of the impending foreclosure sale scheduled for January 6, 1998, as required under the terms of the security deed and OCGA § 44-14-162.2, by sending certified letters to the same two addresses. And given that Farris did not obtain any legal interest in the property until the quitclaim deed from his now-former wife was filed on January 5,1998, he was not the owner of the property at the time that defendants were required to provide notice of the foreclosure sale.

Moreover, pretermitting whether Farris became the legal owner of the property in November 1997, when the property was awarded to him as part of his divorce decree, Farris has still not demonstrated that defendants failed to comply with OCGA § 44-14-162.2 (a). The plain language of OCGA § 44-14-162.2 (a) “requires the secured creditor send notice to the property address unless the debtor designates in writing another address.” And following his alleged acquisition of the property, Farris provided no evidence that he made a written request that defendants send any notices regarding the property to a different address. Thus, defendants “complied with the statute by [their] certified mailing of the foreclosure notice to the property address.” Accordingly, the trial court did not err in granting summary judgment in favor of defendants.

Decided December 28, 2011.

Harold J. Farris, pro se.

Drew, Eckl & Farnham, Eric R. Mull, Paul W. Burke, McCalla Raymer, Robert M. Sheffield, for appellees.

Judgment affirmed.

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

        See, e.g., Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459, 459 (1) (486 SE2d 684) (1997).

        Thompson v. City of Fitzgerald, 248 Ga. App. 725, 725 (548 SE2d 368) (2001).

        Id. at 725-26 (punctuation omitted).

        Id. at 726.

        Giordano v. Stubbs, 228 Ga. 75, 78 (1) (184 SE2d 165) (1971) (punctuation omitted).

        Id. (punctuation omitted).

        Id. (punctuation omitted).

        See id.

        Dominic v. Eurocar Classics, 310 Ga. App. 825, 828 (1) (714 SE2d 388) (2011); see OCGA § 9-2-20 (a) (“As a general rule, an action on a contract, whether the contract is expressed, implied, by parol, under seal, or of record, shall be brought in the name of the party in whom the legal interest in the contract is vested, and against the party who made it in person or by agent.”).

       OCGA § 44-14-162.2 (a).

        Ray v. Atkins, 205 Ga. App. 85, 88 (2) (421 SE2d 317) (1992).

       OCGA § 44-14-162.1.

        Id.

        Zeller v. Home Federal Sav. & Loan Ass’n of Atlanta, 220 Ga. App. 843, 845 (2) (471 SE2d 1) (1996); see OCGA § 44-14-162.2 (a).

        Zeller, 220 Ga. App. at 845 (2).

        See id.; see also Jones v. Bd. of Regents of the Univ. Sys. of Ga., 262 Ga. App. 75, 77 (1) (585 SE2d 138) (2003) (“Summary judgment may be affirmed if it is right for any reason.”).


author: Smith, Presiding Judge.

text:
    A11A1678.
    BENNETT v. THE STATE.
    (722 SE2d 94)
   Smith, Presiding Judge.

A jury found Clint Bennett guilty of DUI less-safe and open container. Following the denial of his motion for new trial, Bennett appeals, challenging only the sufficiency of the evidence to support his DUI less-safe conviction. We find the evidence sufficient and affirm.

On appeal from a criminal conviction, this court views the evidence in the light most favorable to the verdict and the appellant no longer enjoys the presumption of innocence. Bautista v. State, 305 Ga. App. 210 (1) (699 SE2d 392) (2010). Rather, this court “determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Id. at 210-211 (1).

Construed in favor of the verdict, the evidence showed that an officer stopped Bennett at a police roadblock. As the officer asked Bennett for his license and insurance, he noticed the odor of alcohol coming from inside Bennett’s vehicle which he believed to be some type of gin from the distinctive smell. The officer testified that Bennett’s speech was slurred, he repeated himself and “his pupils were dilated and his eyes were red, bloodshot.” Bennett told the officer that he had had a few drinks earlier that night. The officer had Bennett perform one field sobriety test, the horizontal gaze nystagmus test, which indicated that Bennett was under the influence. Bennett also submitted to an alcosensor test which registered positive for the presence of alcohol.

Decided December 29, 2011.

Sara E. Meyers, for appellant.

Dennis C. Sanders, District Attorney, William P. Doupé, Kevin R. Majeska, Assistant District Attorneys, for appellee.

The officer testified that based on his training and experience, his observations, the result of the field sobriety test and alcosensor test, it was his opinion that Bennett was under the influence of alcohol to the extent that it was less safe for him to drive. Bennett was then placed under arrest. During an inventory of Bennett’s vehicle, the officer discovered “a bottle of gin that had been opened” in the back seat.

Bennett argues that his manner of driving indicated that he was safe to drive. He contends that he drove at a safe speed and made no attempt to evade the roadblock. But

a conviction under OCGA § 40-6-391 (a) (1) does not require proof that a person actually committed an unsafe act while driving; it only requires sufficient evidence to authorize a finding, beyond a reasonable doubt, that the defendant was operating or in actual physical control of a moving vehicle while under the influence of alcohol to the extent that it was less safe for him to drive. Circumstantial evidence may be sufficient to meet this burden of proof.

(Citations, punctuation and footnote omitted.) Hoffman v. State, 275 Ga. App. 356, 358 (1) (620 SE2d 598) (2005).

The evidence presented here was sufficient under the standard of Jackson, supra, to authorize the jury’s finding that Bennett was driving under the influence of alcohol to the extent he was a less safe driver. See id.; Gamble v. State, 283 Ga. App. 326, 326-327 (1) (641 SE2d 556) (2007); Tanner v. State, 225 Ga. App. 702, 702-703 (484 SE2d 766) (1997) (police officer may give opinion testimony as to defendant’s state of sobriety and whether he was under influence to extent he was less safe to drive); see also OCGA § 40-6-391 (a) (1).

Judgment affirmed.

Mikell, C. J., and Dillard, J., concur.


text:
    A11A1762.
    REYES-VERA v. STATE.
    (722 SE2d 95)
   MlKELL, Chief Judge.

After a bench trial, Baldemar Reyes-Vera was convicted of one count of child molestation. On appeal, Reyes-Vera urges that we reverse his conviction, arguing that the evidence presented at trial was insufficient to support his conviction. We affirm.

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.” Further, “[w]hen the sufficiency of the evidence is challenged, we use the test established in Jackson v. Virginia to determine whether the evidence was sufficient for any rational trier of fact to find the defendant guilty of the crimes charged.”

So viewed, the evidence shows that Reyes-Vera, who was approximately 51 at the time of the incidents, was indicted in Dough-erty County on, inter alia, two counts of molesting an 11-year-old boy known as D. M. The first count related to an incident in September 2008, the second to an incident in November 2008. Reyes-Vera waived a jury trial, and at a bench trial on January 19, 2010, the trial judge found Reyes-Vera not guilty on the first count, citing insufficient evidence, and guilty on the second count. Reyes-Vera filed a motion for a new trial, which was denied.

At trial, the child victim, D. M., testified that in September 2008, Reyes-Vera had tried to touch him inappropriately. Because of this behavior, when Reyes-Vera came to the home D. M. shared with his aunt in November 2008, D. M. told his two young cousins to hide in his bedroom closet so that if Reyes-Vera attempted to touch him again, “I could prove to them that ... I was telling the truth.” The boy had previously told his aunt’s boyfriend, Michael Clum, about the September 2008 incident, but Clum testified that he had “dismissed it as just a mistake” because Reyes-Vera was drunk. D. M. also testified that during the September 2008 incident, Reyes-Vera had given him his phone number and told him to call, but that he did not call the older man.

D. M. testified that in the November 2008 incident, he was lying on his bed when Reyes-Vera came into his room, “got on my bed and started rubbing on me,” “rubbing on my behind,” and “trying to kiss me . . . trying to get on top of me.” D. M. said his cousins “jumped out [of the closet] and they tried to get him off of me and then they went to go tell their dad.” D. M. said that Clum told Reyes-Vera to leave; and that his aunt and Clum then left D. M. alone while they drove his cousins back to their home. D. M. testified that while he was alone, Reyes-Vera came back and knocked on the door, but he did not answer. Reyes-Vera then got in his vehicle and backed through a fence near the home, at which point D. M. called the police.

At trial, Clum testified that D. M. told him Reyes-Vera had touched him “a bunch of times,” and that when Clum told Reyes-Vera to leave, the other man was “drunk” and “staggering.” Clum further testified that after he left D. M. alone to drive D. M.’s cousins back home, he returned to find that Reyes-Vera had hit the fence and that D. M. had called the police.

The responding officer testified that D. M. told her that Reyes-Vera touched him while he was lying down, and that Reyes-Vera “tried to kiss him.” She also testified that D. M. gave her the piece of paper on which Reyes-Vera had written his phone number, and that D. M. told her about his cousins hiding in the closet to observe Reyes-Vera.

A trained forensic interviewer interviewed D. M. in a child-friendly environment. He testified that D. M. told him that Reyes-Vera came into his bedroom, got on top of him, touched his buttocks, and attempted to kiss him. D. M. told the interviewer that he had asked his cousins to hide in the closet because Reyes-Vera had attempted to touch him previously.

Both cousins testified that they hid in the closet, which was near the bed and did not have a door. One cousin said he saw Reyes-Vera “trying to rub on my cousin and kiss him,” and that when Reyes-Vera attempted to touch D. M.’s crotch, they yelled, tried to hit Reyes-Vera, and went to get their father. The other cousin said that Reyes-Vera tried to kiss D. M.

At trial, Reyes-Vera, who was represented by counsel, presented no witnesses or evidence and elected not to testify.

In his sole enumeration of error, Reyes-Vera argues that the evidence as to his intent was insufficient to convict him pursuant to OCGA § 16-6-4 (a) (1), which provides that a person commits the offense of child molestation when he does an immoral or indecent act to, in the presence of, or with any child under 16 years of age “with the intent to arouse or satisfy the sexual desires” of either himself or the child.

As this Court has held, intent is “peculiarly a question of fact” for the jury or, as in the case sub judice, the trial judge as finder of fact. Further, “intent, which is a mental attitude, is commonly detectible only inferentially, and the law accommodates this.”

The evidence shows that Reyes-Vera touched D. M. inappropriately, fondling his buttocks, rubbing his body, and attempting to kiss him. This evidence is sufficient to authorize the finder of fact to find that Reyes-Vera acted with the intent to arouse or satisfy his own or the victim’s sexual desires.

“[E]ven when a finding that the accused had the intent to commit the crime charged is supported by evidence which is exceedingly weak and unsatisfactory[,] the verdict will not be set aside on that ground.” In the instant case, the evidence is neither weak nor unsatisfactory. Moreover, although there is no requirement that the testimony of the victim of child molestation be corroborated, we note that the testimony of the victim in this case was corroborated by both of his young cousins, who witnessed the incident. Additionally, D. M. gave consistent accounts of the incident to police officers, the forensic interviewer, and his aunt’s boyfriend, Clum.

In arguing that the evidence is insufficient to establish the requisite intent, Reyes-Vera mentions the trial testimony of two law enforcement officers, who testified that Reyes-Vera told them he did not molest the child. However, one of those officers also testified that when he was escorting Reyes-Vera back to jail, Reyes-Vera told him, “The children said it happened, then it happened, because children don’t lie,” a statement the officer interpreted as meaning “he did it.” The foregoing evidence provides no basis for reversal. “Resolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court.”

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

Decided December 29, 2011.

Kevin Armstrong, for appellant.

Gregory W. Edwards, District Attorney, Kathryn O. Fallin, Assistant District Attorney, for appellee.

       (Punctuation and footnote omitted.) Craft v. State, 252 Ga. App. 834, 835 (558 SE2d 18) (2001).

       Id. at 839 (1), citing Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       Reyes-Vera also was indicted for one count of driving under the influence and one count of open container for actions occurring in connection with the November 2008 incident. The trial judge granted the district attorney’s motion for nolle prosequi on the count of driving under the influence, and the parties stipulated to facts sufficient to convict for open container.

       Between the time Reyes-Vera was indicted, in 2008, and convicted, in 2010, the Legislature modified this statute, Ga. L. 2009, p. 729, §§ 1, 2, effective May 5, 2009. Those modifications do not alter the statute in ways material to the instant case.

       (Citation and punctuation omitted.) Smith v. State, 310 Ga. App. 392, 394 (1) (713 SE2d 452) (2011).

       (Punctuation omitted.) Id., citing Howard v. State, 268 Ga. App. 558, 559 (602 SE2d 295) (2004).

       See Smith, supra; Howard, supra.

       (Citations and punctuation omitted.) Grimsley v. State, 233 Ga. App. 781, 784 (1) (505 SE2d 522) (1998).

       See Coalson v. State, 237 Ga. App. 570, 571 (515 SE2d 882) (1999).

       (Citation and punctuation omitted.) Stepho v. State, 312 Ga. App. 495, 497-498 (718 SE2d 852) (2011).


text:
    A11A2083, A11A2084, A11A2085.
    GRAY v. THE STATE (three cases).
    (722 SE2d 98)
   SMITH, Presiding Judge.

We granted the application for discretionary appeal in these three related cases to review the evidence supporting the trial court’s decision to revoke Roy Gray, Jr.’s probation. Because the evidence did not support the trial court’s judgments, even under the more lenient standard applicable to a probation revocation, we reverse.

In 2007, Gray pled guilty to three separate indictments for two counts of robbery by sudden snatching, entering an automobile, and financial transaction card fraud and was sentenced to a term of probation in all three. In 2010, the State filed petitions to revoke his probation in all three cases, alleging that he had possessed marijuana with intent to distribute and had failed to complete a day center program. Gray contested the petition, asserting that he did not possess the marijuana and that he did not intentionally fail to complete the program but was involuntarily removed upon his arrest.

The evidence presented at the hearing showed that in 2010, a narcotics officer conducted a controlled purchase of marijuana and cocaine at a trailer in Tifton. The following day, a team of officers served a no-knock search warrant on the property. The front door was open, and Gray was sitting in a chair “just in front of the door.” When questioned, Gray told the officers that he did not live there, that he had come to retrieve his video game console from the occupants because they had been evicted, and that he was waiting for them to return from moving some of the contents of the trailer. During the search of the trailer, officers found a black bag inside a bedroom closet, and inside that bag a sandwich bag containing 1.9 ounces of marijuana. In the kitchen, officers found a bag with suspected marijuana residue, scales, and razor blades on the counter, and a bullet-proof vest was discovered in the living room.

The officer acknowledged that he did not know who owned or rented the trailer, that he had no information that Gray owned or leased the trailer, and that a different individual had sold the drugs the day before. The confidential informant involved in the controlled purchase did not identify Gray as having possessed or sold any drugs. The officer did not find any bills, paycheck stubs, or any other paperwork connecting Gray with the trailer. The officer also knew that Gray’s mother lived two doors down in the same trailer park, although he did not know if Gray lived with his mother and knew only that he lived in the trailer park. Ultimately, he acknowledged that the only evidence that Gray possessed the marijuana was his presence at the trailer and that “he had property at the house.”

The court found that a preponderance of the evidence showed that Gray had violated his probation by possessing marijuana and failing to complete the drug program and revoked three years of his probation.

A court may not revoke any part of any probated or suspended sentence unless the evidence produced at the revocation hearing establishes by a preponderance of the evidence the violation or violations alleged. OCGA § 42-8-34.1 (b). This court will not interfere with a revocation unless there has been a manifest abuse of discretion on the part of the trial court.

(Citations, punctuation and footnote omitted.) Scott v. State, 305 Ga. App. 596 (699 SE2d 894) (2010).

1. Gray contends that the trial court erred in revoking his probation because the State failed to show by a preponderance of the evidence that he possessed marijuana with intent to distribute. When the State presents no evidence that the probationer was in actual possession of contraband, it must show constructive possession. Id. at 598. Moreover, “when the State’s constructive possession case is based wholly on circumstantial evidence, the law requires that the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” (Citation and punctuation omitted.) Id.

“A finding of constructive possession of contraband cannot rest upon mere spatial proximity to the contraband, especially where, as here, the contraband is hidden. [Cits.]” Mitchell v. State, 268 Ga. 592, 593 (492 SE2d 204) (1997). And “[e]vidence merely showing that contraband was found in a residence occupied by the defendant is not sufficient to support a conviction, especially where other persons had equal access to the contraband and therefore an equal opportunity to commit the offense.” (Citation and footnote omitted.) Johnson v. State, 282 Ga. App. 52, 54 (1) (637 SE2d 775) (2006). The same rule applies in a probation revocation. See Brown v. State, 294 Ga. App. 1, 5-6 (2) (668 SE2d 490) (2008) (evidence that probationer sitting outside house and cocaine visible through glass storm door slight evidence of possession but not preponderance sufficient to revoke probation); Anderson v. State, 212 Ga. App. 329, 329-330 (442 SE2d 268) (1994) (defendant’s presence in mother’s house when drugs found in her bedroom slight evidence of possession but not preponderance).

Here, the State showed only that Gray was at the open front door of a trailer and that a sandwich bag of marijuana was found in a closed container inside a closet in a bedroom. The evidence showed that other individuals had access to the trailer, including a man who sold drugs to the confidential informant. While the State contends that Gray’s “claimed ownership of some of the personal property found at the residence” supports a finding of constructive possession, under the evidence presented here, that claim did not demonstrate Gray’s residence at the trailer to the exclusion of any other reasonable hypothesis.

Ordinarily, property supporting an inference of residence for the purposes of constructive possession consists of clothing, banking or business records, or other personal items customarily kept in one’s living quarters. See, e.g., Cox v. State, 300 Ga. App. 109, 110 (684 SE2d 147) (2009) (bedroom night stand contained many items with defendant’s name on them, including paperwork, insurance documents and several picture identification cards); Aguey-Zinsou v. State, 296 Ga. App. 319, 324 (2) (674 SE2d 366) (2009) (bank statement, bill, and envelope all bearing appellant’s name and address found in bedroom at that address); McWhorter v. State, 275 Ga. App. 624, 626 (1) (621 SE2d 571) (2005) (personal items found in bedroom with methamphetamine manufacturing equipment included prescription bottle, notebook, letters, and handgun); Daniels v. State, 192 Ga. App. 446 (1) (385 SE2d 107) (1989) (men’s clothing as well as business records and cancelled checks of two businesses owned by appellant found in apartment leased to appellant’s girlfriend).

A video game console, while possibly “worth a great deal of amount of money” as the State contended, is not, without more, a personal item of this kind. Compare Glass v. State, 304 Ga. App. 414, 419 (3) (696 SE2d 140) (2010) (constructive possession shown when defendant had key to hotel room, acted suspiciously upon seeing police, and claimed clothing and video game system found in room with large quantity of drugs in open view). The evidence here does not exclude the reasonable hypothesis that Gray had loaned the video game console to the occupants of the trailer, had learned of their eviction, and was waiting for their return so that he could retrieve his property.

2. With respect to the assertion that Gray violated his probation by failing to attend the reporting center, his attorney correctly noted that there was no intentional act on his part because he was involuntarily removed from the program as a result of his arrest and that he had no “opportunity to address the arrest until his revocation hearing.” A violation of the conditions of probation generally requires some voluntary act on the part of the probationer. See, e.g., Wade v. State, 152 Ga. App. 529, 530 (2) (263 SE2d 268) (1979) (affirming revocation when record “amply supported] the trial court’s finding that appellant was in ‘willful and voluntary’ violation of his probation without ‘any justifiable reason or excuse’ therefor.”). See also Burson v. State, 161 Ga. App. 107, 109 (2) (289 SE2d 254) (1982) (affirming revocation of probation when appellant was discharged from a drug treatment program for refusing to cooperate in treatment; “appellant was, because of his own actions and without authority from his probation officer, no longer enrolled in that treatment program he had been directed to attend and complete as the condition for his probated sentence[ ].” (Emphasis supplied.))

As we note in Division 1, above, the evidence was insufficient to show that Gray committed the offense for which he was arrested. It follows that “his own actions” did not cause him to be dismissed from the drug treatment program, and he therefore was not in “willful and voluntary” violation of his probation. In Oliver v. State, 305 Ga. App. 779 (1) (700 SE2d 861) (2010), by contrast, the trial court did not abuse its discretion in finding that Oliver violated the terms of his suspended sentence by failing to complete a residential drug treatment program, from which he was discharged because of his arrest for motor vehicle theft and battery. Id. But the trial court also found by a preponderance of the evidence that Oliver committed the crimes for which he was arrested, and this court affirmed. Id. at 780 (2). Oliver’s violation of the terms of the suspended sentence therefore was a result of his voluntary and wilful commission of the crimes.

Here, in contrast, the circumstantial evidence was insufficient under a preponderance of the evidence standard to exclude every other reasonable hypothesis save that of guilt. The evidence was therefore insufficient to support a finding that Gray committed the offenses charged, and it was insufficient to find that his discharge from the day center program was the result of any voluntary or wilful conduct on his part. The trial court therefore manifestly abused its discretion by revoking Gray’s probation.

Decided December 29, 2011.

Timothy W. Hoffman, for appellant.

C. Paul Bowden, District Attorney, Mary M. Simms, Kevin E. Hutto, Assistant District Attorneys, for appellee.

Judgments reversed.

Mikell, C. J., and Dillard, J., concur.

       A finding of wilfulness is also required when the probationer has allegedly violated probation by non-payment of a fine. See Massey v. Meadows, 253 Ga. 389, 390 (321 SE2d 703) (1984) (“a defendant’s probation may not be revoked or withheld because of his failure to pay the fine without a showing of wilfulness on his part or inadequacy of alternative punishments”); Johnson v. State, 307 Ga. App. 570, 571-572 (707 SE2d 373) (2011) (revocation of probation reversed for abuse of discretion when trial court made no findings as to reasons for probationer’s failure to pay or the inadequacy of alternative punishments).