author: Miller, Presiding Judge.

text:
    A11A0640.
    HALL v. THE STATE.
    (714 SE2d 7)
   Miller, Presiding Judge.

Jackie Hall was convicted by a jury of trafficking in cocaine (OCGA § 16-13-31 (a) (1)). The trial court denied his motion for new trial. On appeal, Hall’s claims of error challenge the denial of his motion to suppress the drug evidence. Specifically, he contends that the trial court erred in finding (i) that the confidential informant who provided the tip leading to his detention and search was reliable; (ii) that the officers had probable cause for the warrantless search of his person; and (iii) that he had freely and voluntarily consented to the warrantless search. We discern no error and affirm.

In ruling upon a motion to suppress, the trial judge is the trier of fact, having sole province of determining witness credibility and resolving evidentiary conflicts or inconsistencies. See Pattman v. State, 208 Ga. App. 770, 772 (431 SE2d 706) (1993). On appeal, we construe the evidence in a light favorable to upholding the lower court’s findings, and we adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous. See Quick v. State, 279 Ga. App. 835, 836 (632 SE2d 742) (2006). However, we apply a de novo standard of review to the trial court’s application of law to those facts that are undisputed. See State v. Jones, 287 Ga. App. 259 (651 SE2d 186) (2007).

So viewed, the record evidence shows that on the evening of August 30, 2005, an officer with the City of Atlanta Police Department was approached at the precinct by a confidential informant with whom he and other officers had worked for three years. The officer testified that the informant had provided reliable information in two of his prior cases, which had resulted in drug arrests within the past two years.

The informant advised the officer that Hall was planning to deliver approximately 86 grams of suspected crack cocaine to him at a designated location in downtown Atlanta. The officer was aware that the designated location was known for high drug activity. The informant frequently visited the location and had previously provided accurate information on drug dealers whom he regularly encountered at the location. The informant gave the officer a detailed description of Hall, including the fact that he was an older male, six feet tall, wore a dreadlocks hairstyle, and was dressed in a green and yellow shirt and blue jeans. The informant also provided the exact location for the delivery and the amount of drugs that would be delivered. The informant agreed to contact the officer upon Hall’s arrival at the location and to give a signal that would confirm Hall’s possession of the drugs.

Later that evening, the informant called the officer to confirm that he had made contact with Hall and that Hall was at the drug delivery location. The informant told the officer that Hall had concealed the drugs inside his shirt. The officer, along with two other officers, arrived at the location and encountered Hall, who matched the description that the informant had provided. The officers approached Hall, detained him in handcuffs, and placed him against the patrol car. When the officer asked Hall whether he had any drugs or weapons in his possession, Hall responded, “no.” The officer then requested and obtained Hall’s consent to search his person. Upon searching the inside of Hall’s shirt, the officer recovered a bag of crack cocaine, weighing approximately 83.12 grams and having a purity of approximately 63.9 percent.

Hall was indicted for the drug offense of trafficking in cocaine. He filed a pretrial motion to suppress the drug evidence. Following an evidentiary hearing, the trial court denied the motion.

1. Hall challenges the denial of his motion to suppress, contending that the trial court erred in finding that the confidential informant was reliable. We discern no error.

During the suppression hearing, the officer testified that he had known the informant for three years and that the informant had given him accurate information in two of his prior cases, both of which had resulted in drug arrests. The officer further testified that the informant was not paid or given any favors in exchange for providing the information. This evidence reflecting the informant’s past history of reliability authorized the trial court’s finding that he was reliable in this case. See Wilson v. State, 249 Ga. App. 560, 561-562 (549 SE2d 418) (2001) (evidence that the informant had given the officer information about possible illegal activity on two prior occasions that resulted in drug arrests authorized the trial court’s finding that the informant was reliable); Britt v. State, 208 Ga. App. 157 (430 SE2d 28) (1993) (finding that the informant was reliable since he had previously supplied the officer with information which led to drug arrests).

Hall nevertheless argues that the informant’s reliability was not established since the officer failed to ascertain the informant’s criminal history and failed to provide details regarding the prior cases in which the informant assisted the officer. Contrary to Hall’s argument, however, the fact that the informant had a criminal history did not preclude the trial court’s finding that the informant was reliable based upon his prior work with police. See Zorn v. State, 291 Ga. App. 613, 614-615 (1) (662 SE2d 370) (2008). Moreover, the officer was not required to divulge the details regarding the prior cases to establish the informant’s reliability. See Butler v. State, 185 Ga. App. 478, 480 (1) (364 SE2d 612) (1988) (finding no error in the trial court’s refusal to allow defense counsel to cross-examine the officer as to the details of the prior cases in which the informant provided assistance in order to protect the informant’s identity). The officer’s testimony that the informant had provided information leading to drug arrests within the past two years sufficiently established the type and use of information that had been provided, as well as the length of time which had elapsed since the information was furnished, which afforded a basis for the trial court to determine the informant’s reliability. See id. at 479-480 (1) (evidence that the confidential informant had provided information to the detective on three occasions within the preceding eight months which had led to arrests was sufficient to establish the informant’s reliability). Compare Galgano v. State, 147 Ga. App. 284, 286 (248 SE2d 548) (1978) (concluding that a bare assertion that the informant had provided information in the past was insufficient to furnish a basis for determining his reliability).

“Construing the evidence most favorably to uphold the trial court’s findings, as we must, we cannot say that its determination that the informant was reliable was clearly erroneous.” (Footnote omitted.) Wilson, supra, 249 Ga. App. at 562.

2. Hall further contends that the trial court erred in finding that probable cause existed for his detention and arrest. Again, we disagree.

The duty of a reviewing court is to ensure that a substantial basis for probable cause existed. We must determine under the totality of the circumstances whether the evidence in this case showed a fair probability that contraband or evidence of a crime would be found in a particular place.

(Citations and punctuation omitted.) Pattman, supra, 208 Ga. App. at 771-772.

Probable cause to search may be provided by information from a reliable [confidential informant]. As we have held, the sufficiency of information obtained from an informant is not to be judged by any rigid test. Generally, probable cause is determined by the totality of the circumstances surrounding (1) the basis of the informant’s knowledge and (2) the informant’s veracity or reliability. A deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability. Further, when the details of a tip are corroborated by the personal observation of the investigating officers, a reliable informant’s tip is sufficient to establish probable cause for a warrantless search.

Decided June 20, 2011

Reconsideration denied July 1, 2011.

Cromwell & Hibbert, Henry A. Hibbert, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Lenny I. Krick, Assistant District Attorneys, for appellee.

(Citations and punctuation omitted.) State v. Burnett, 249 Ga. App. 334, 336-337 (2) (548 SE2d 443) (2001). See also Illinois v. Gates, 462 U. S. 213, 230-235 (III) (103 SC 2317, 76 LE2d 527) (1983).

In this case, the information provided by the informant, which was substantially corroborated by the officers, was sufficient to establish probable cause for the warrantless search of Hall’s person. As stated in Division 1 above, the informant had a past history of reliability leading to other drug arrests. Moreover, the informant obtained his information based upon his personal knowledge and correspondence with Hall. The officers were able to confirm the details provided by the informant when they observed Hall matching the description at the designated location. Based upon the totality of these circumstances, the trial court was authorized to find that probable cause existed for the warrantless search of Hall’s person. See Burnett, supra, 249 Ga. App. at 337 (2); Pattman, supra, 208 Ga. App. at 772; Butler, supra, 185 Ga. App. at 480 (1).

3. Lastly, Hall argues that the drug evidence should have been suppressed since his alleged consent to the search was not freely and voluntarily given. In light of our holding in Division 2 above, it is unnecessary to address the issue of consent. Since probable cause existed, the warrantless search was authorized with or without Hall’s consent. See Williams v. State, 167 Ga. App. 42, 44 (2) (306 SE2d 46) (1983).

Judgment affirmed.

Ellington, C. J., and Doyle, J., concur.

       To the extent Hall argues that the informant’s information was insufficient to predict his future behavior, his argument is without merit. Hall’s argument in this regard references a rule that requires an anonymous tipster’s information to provide a basis for predicting the suspect’s future behavior. See VonLinsowe v. State, 213 Ga. App. 619, 620-621 (1) (445 SE2d 371) (1994). While this rule applies to anonymous telephone tips, it does not apply to a tip from a known, reliable informant. See Wilson, supra, 249 Ga. App. at 562. The requirement is unnecessary where, as here, the informant’s reliability has otherwise been established. Id.


source: Caselaw Access Project

license: Public Domain

text:
    A08A2323.
    GEORGIA DEPARTMENT OF REVENUE v. TRAWICK CONSTRUCTION COMPANY, INC.
    (714 SE2d 69)
    Decided July 1, 2011.

      Thurbert E. Baker, Attorney General, Warren R. Calvert, Senior Assistant Attorney General, Lourdes Gonzalez de Mendoza, Assistant Attorney General, for appellant.

      Baker, Donelson, Bearman, Caldwell & Berkowitz, Robert G. Brazier, Michael S. Evans, for appellee.
   Miller, Presiding Judge.

The Supreme Court of Georgia granted certiorari in this case, and in Trawick Constr. Co. v. Ga. Dept. of Revenue, 286 Ga. 597 (690 SE2d 601) (2010), reversed the judgment of this Court. We therefore vacate our prior opinion in Ga. Dept. of Revenue v. Trawick Constr. Co., 296 Ga. App. 275 (674 SE2d 350) (2009), and adopt the judgment of the Supreme Court as the judgment of this Court.

Judgment affirmed.

Ellington, C. J., and Blackwell, J., concur.


author: Doyle, Judge.

text:
    A11A0125.
    In the Interest of J. H., a child.
    (713 SE2d 472)
   Doyle, Judge.

The mother of a four-year-old boy, J. H., appeals from a juvenile court order finding the child to be deprived. The mother contends that insufficient evidence supports the juvenile court’s finding of deprivation, and she argues that the juvenile court erred by finding that the DeKalb County Department of Family and Children Services (“the Department”) made reasonable efforts to support the mother and by failing to make a finding of whether the mother’s conduct or unfitness resulted in the abuse or neglect of J. H. For the reasons that follow, we reverse.

A deprived child is one who is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals. In determining whether a child is deprived, the court focuses on the needs of the child rather than parental fault. And a temporary loss of custody is not authorized unless the deprivation resulted from unfitness on the part of the parent, that is, either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child. On appeal from a finding of deprivation, we review the evidence in the light most favorable to the juvenile court’s judgment and determine whether any rational trier of fact could have found by clear and convincing evidence that the child was deprived and whether, under the circumstances, the court properly awarded temporary custody of the child.

So viewed, the record shows that in September 2007, the Department became involved with the mother and J. H., who was born in March 2007. In September 2007, the mother’s sister, who was living in the same household at the time, had her similarly aged child removed by the Department based on allegations that the child was burned by the grandmother’s cigarette. Apparently, the removal of the mother’s nephew prompted the removal of J. H., who was soon returned to the mother’s custody. The Department provided services to the mother in the form of counseling and parent aides. On August 13, 2009, the Department filed a petition, alleging that a parental fitness evaluation performed on the mother on July 7, 2009, concluded that she should not “independently maintain custody of [J. H.] regardless of the services being provided in the home.” The only document in the record that supports this allegation, however, is a psychological and parental fitness evaluation that was performed when J. H. was eight months old, presumably before he was returned to the mother after his initial removal.

In its 72-hour-hearing order, the juvenile court found that the mother had not been compliant with the Department with regard to the services provided to assist her to improve her parenting skills. On September 4, 2009, the Department filed a deprivation petition, contending that the mother had cognitive limitations that affected her ability to adequately parent, and she did not comply with the parent aide and counselor provided to her because she did not believe that she needed assistance with parenting J. H. The case plan cited neglect and inadequate housing as the reasons J. H. was placed in Department custody.

The juvenile court conducted a detention hearing on August 31, 2009, which was continued to January 26, 2010. A caseworker testified that the Department had been involved with the mother and J. H. since September 2007. The caseworker stated that from June 2009 to August 2009, she conducted at least six visits to the mother’s residence, observing dirty dishes in the sink, dirty carpet, lack of fruits or vegetables in the residence, J. H. wearing only a diaper both inside and outside of the residence, and the mother spanked J. H. twice. There was no testimony presented by the caseworker, however, that J. H. sustained any physical injury from the spanking, that there was any medical evidence of injury to J. H., or that J. H. was harmed when he was clothed only in a diaper. Moreover, the caseworker testified that there was always food in the residence, although the food consisted of meats and convenience foods, which she characterized as “adequate.” A family counselor testified that her observations of the mother’s interactions with J. H. had “been appropriate.”

The juvenile court found the child to be deprived based on the mother’s low level of cognitive functioning and because she was not compliant in working with the parent aide and counselor provided by the Department.

The mother argues that there was insufficient evidence to show that J. H. was deprived. Specifically, the mother contends that there is a lack of clear and convincing evidence to support a finding that she is unfit to care for J. H. or that any cognitive disability has had an adverse effect on J. H. We agree and reverse.

Even when viewing the record evidence in the light most favorable to the juvenile court’s finding, we conclude that the State has simply failed to provide sufficient evidence to show that J. H. was deprived. There was testimony that J. H., a toddler, may not have been wearing clothing other than a diaper in the middle of summer, that the mother’s home may not have contained a great variety of types of food, that the mother had engaged in physical discipline of J. H., and that the home was dirty. Nevertheless, there was a complete lack of evidence that any of these facts had resulted or would result in any harm to J. H. While there was some evidence that the mother did not believe that she needed assistance from the Department appointment counselor and parent aide, there is no evidence that her failure to readily accept their advice and assistance resulted in any harm to J. H. Accordingly, we reverse the juvenile court’s determination that J. H. was deprived.

Decided July 1, 2011.

Hurl R. Taylor, Jr., for appellant.

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Kathryn A. Fox, Assistant Attorney General, Jerry W. Thacker, for appellee.

Judgment reversed.

Ellington, C. J., and Miller, P. J., concur.

       (Citations and punctuation omitted.) In the Interest of M. K., 288 Ga. App. 71 (1) (653 SE2d 354) (2007). See also OCGA § 15-11-2 (8) (A).

       See In the Interest of A. J. I., 277 Ga. App. 226, 229-231 (626 SE2d 195) (2006).

       See In the Interest of H. S., 285 Ga. App. 839, 842-843 (648 SE2d 143) (2007) (reversing deprivation finding because there was no evidence that isolated incident of physical abuse had negative impact on child); A. J. I., 277 Ga. App. at 229-231 (reversing deprivation because evidence that mother had tested positive for marijuana was not sufficient to sustain finding of harm to child or to support inference that mother was a chronic drug abuser, which would harm child); In the Interest of T. L., 269 Ga. App. 842, 844-846 (2) (605 SE2d 432) (2004) (reversing finding of deprivation because there was no evidence showing how child was negatively affected by “filthy” conditions in home); In the Interest of M. L. C., 249 Ga. App. 435, 436-439 (2) (548 SE2d 137) (2001) (evidence insufficient to support finding of deprivation even though parents admitted to substance abuse, depression, and incidents of domestic violence because evidence failed to show an adverse effect on child).


author: Adams, Judge.

text:
    A11A0126.
    THOMAS v. THE STATE.
    (714 SE2d 37)
   Adams, Judge.

Chris Thomas was convicted by a jury of kidnapping, armed robbery, four counts of aggravated assault and two counts of aggravated battery. He appeals following the denial of his motion for new trial, contending that the evidence was insufficient, that the trial court improperly charged the jury, that his custodial statement should not have been admitted, that certain of his convictions should have been merged for sentencing, and that he should not have been sentenced as a recidivist.

Construed to support the jury’s verdict, the evidence adduced at trial showed that Pastor Ralph E. Davis operated a gospel music radio station in Effingham County. Davis testified that on December 4, 2006, he had just finished a live broadcast when someone came up from behind and put an arm around his neck, placing him in a “death” choke. Davis said at first he thought someone was playing a joke, and he said “I give up, you win.” Davis testified that as he remained in the choke hold, another person threw bleach into his eyes; however, because of the angle from which it was thrown, he was blinded only in his right eye.

At that point, he started to fight back. He planted his feet and shot straight back at the person who had him in the choke hold and a struggle ensued. As he continued to struggle on the floor, one of the assailants tried to get duct tape around his eyes. As the struggle continued, he and his assailants moved about seven to ten feet across the floor and just slightly outside of the studio room before he was subdued and taken back into the studio room. Davis was placed in a fetal position and duct tape wound multiple times around his eyes. Duct tape was also placed across his mouth and ankles. His wrists were bound with duct tape and a cord.

Davis’s assailants then proceeded to “torture” him for the next several hours. At various points Davis had plastic bags placed over his head to suffocate him, he was beat in the head with a hammer until he was unconscious and a cord was wrapped around his head. Davis raised his arms for protection while he was being hit with the hammer, causing broken bones and severe injuries to his hands, severing the end of one finger and breaking others; one of his fingers was so mangled that at the time of trial Davis only had about 15 percent use of that finger. At some point Davis’s right hand was sliced with a sharp object and then the blade of the object was pushed against his jugular vein, but the blade broke. Davis testified that at various points, his assailants also said they were going to kill him. Davis further testified that his assailants took his wallet, money and car keys. They also kept asking him where the transmitter for the station was located.

Davis testified that his attackers left after several hours and he eventually was able to partially free himself. He was able to locate a cell phone but had not yet called for help when he saw a man, later identified as Eugene Howard, walk by the window. Davis said Howard had been in the station several days earlier, asking him to pray for his mother. Davis noticed that Howard had his keys in his hand, which Davis recognized because of a device he had put on the key ring to attach it to his belt loop. Howard came back inside the studio, but made a hasty retreat when Davis, who was holding the cell phone in his hand, told Howard that he had dialed 911 and the police were on their way.

Howard had provided an address for his mother when he talked to Davis about praying for her, and after police learned that Howard also lived there they obtained a warrant to search the residence. Davis had told police that one of his attackers was wearing a pair of brown coveralls, and a pair of brown Carhartt coveralls, which appeared to have bleach and blood on them, were found during the search of Howard’s room. Officers also found a notebook which gave details about taking over the radio station and changing the format to “urban.” The garbage outside the residence was also searched, and officers found a glove with a raised dot pattern that matched prints obtained from the scene; the glove was “saturated” in what DNA testing later identified as Davis’s blood. Davis’s wallet and keys, as well as shoes that matched an impression that was found on top of one of the desks in the radio station were also found in the garbage can.

Eric Riner, one of the investigators on the case, testified that the name “Chris” kept coming up during the investigation, and a few days into the investigation the sheriffs office received a “tip” from a man who said that Chris Thomas and Howard had asked him to take them to South Carolina because the “feds were after them.” Thomas and Howard were subsequently located at Thomas’s address, and they were transported separately to the Bulloch County jail. Subsequently, Davis’s driver’s license, social security card, and a credit card were found under the seat and headrest of the patrol car used to transport Thomas to the jail.

Thomas gave several varying statements to police while he was at the Bulloch County jail; these statements were not recorded. The next day, both Howard and Thomas were transported to the Effingham County jail. While he was being photographed at the jail, Thomas indicated to Investigator Riner that he wanted to make a statement, and after being reminded of his Miranda rights that had been read to him the day before, he agreed that he was making the statement freely and voluntarily and that he in fact initiated making the statement. During his statement, which was recorded and played for the jury without objection, Thomas admitted to being at the radio station with Howard but said he left during the assault. However, Riner testified that Thomas’s statement that he was not present during the heating was inconsistent with other evidence revealed during the investigation, including GPS coordinates obtained from the miniature tracking device Thomas had to wear as a condition of his parole. Moreover, Riner testified that given their relative sizes, it was “ludicrous” to think that Howard, who was “a very small individual” would have been able to overpower the larger Davis by himself.

Riner also testified that Thomas’s girlfriend, who lived with him at the residence where he was arrested along with Howard, contacted police and turned over a plastic garbage bag containing weightlifting gloves that matched the description of gloves that Thomas told police that Howard had been wearing. Riner pointed out for the jury that if what Thomas said was true, then Thomas must have been wearing the gardening gloves with blood on them that were found in the garbage can at Howard’s residence. The bag also contained a ski mask; and Davis had been able to see that the taller of the two assailants had on a burgundy ski mask, and Riner testified that Thomas was taller than Howard.

Based on this and other evidence presented at trial, the jury convicted Thomas of all the charges against him, and the trial court sentenced him on all counts. As more fully set forth below, we agree with Thomas that his conviction for kidnapping must be reversed, and that the trial court erred in imposing his sentence, but we otherwise affirm.

1. Thomas first argues that the evidence, excluding his arguably inculpatory and arguably contradictory custodial statements that he contends should not have been admitted at trial, was insufficient to show that he “was an active participant in the assault on [the victim].” We disagree. First, as more fully set forth in Division 4 below, Thomas’s statements were properly considered by the jury. Moreover, even if this evidence had been excluded, the other evidence, viewed in the light most favorable to the jury’s verdict, showed that Davis was attacked by not one but two people, and that Thomas was one of the perpetrators. Moreover, even if Howard alone committed some of the acts of physical violence against Davis, the evidence was nevertheless sufficient to authorize Thomas’s conviction as a party to these crimes. This enumeration thus affords no basis for reversal of Thomas’s conviction for aggravated assault.

2. Thomas next argues that the evidence presented at trial on the kidnapping charge was insufficient to satisfy the element of asportation under the test enunciated in Garza v. State, 284 Ga. 696, 701-702 (1) (670 SE2d 73) (2008). With this contention we agree.

First we note that the crimes occurred on December 4, 2006, and Thomas’s trial commenced on October 15, 2007; thus Garza applies here.

Applying the test enunciated in Garza, adopted from Govt. of Virgin Islands v. Berry, 604 F2d 221, 16 V I. 614 (3d Cir. 1979), we look at four factors to determine the sufficiency of the evidence of asportation in kidnapping cases. Those four factors are:

(1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.

Garza, 284 Ga. at 702.

“The test was designed to determine whether the movement was one ‘serving to substantially isolate the victim from protection or rescue — or merely a “criminologically insignificant circumstance” attendant to some other crime.’ Garza, 284 Ga. at 702 (1).” Wright v. State, 300 Ga. App. 32, 34 (1) (684 SE2d 102) (2009).

In this case, the movement occurred after the assault on Davis had begun when Davis attempted to fight back against his attackers, and his attackers were struggling to re-gain control over him and subdue him. Although during this struggle he and his attackers traveled across the studio floor and partially entered the adjacent room, as soon as he was subdued and bound, he was returned to the studio room where the assault on his person continued. These circumstances show that the movement was of short or minimal duration, clearly occurring during the course and incidental to the assaults. Moreover, although the State argues that the danger to Davis was increased by this movement since it took him out of view if someone might have happened to look into the window located in the studio room, this argument ignores that Davis was moved back into that room as soon as he was subdued. Thus, we cannot say that the movement served to “substantially isolate” Davis from protection or rescue; rather, it appears to us that it was merely a “criminologically insignificant circumstance” attendant to the assaults being committed against him. Garza, 284 Ga. at 702. Thus we agree with Thomas that the movement here did not constitute asportation under the applicable test as enunciated in Garza, and his conviction for kidnapping must be reversed. E.g., Garza, 284 Ga. at 703-704 (2) (asportation not shown where victim fell to floor after defendant hit her in head with a gun and then defendant helped her up and made her sit in a chair as these acts were in the course of and incidental to the false imprisonment and aggravated assault); Hargrove v. State, 299 Ga. App. 27, 29-30 (1) (681 SE2d 707) (2009) (crimes were ongoing when victim was moved from one room to another and movement was in furtherance of those offenses); Rayshad v. State, 295 Ga. App. 29, 33-34 (1) (b) (670 SE2d 849) (2008) (although one of the victims was dragged around and into another room, movement was in furtherance of the robbery). Compare Henderson v. State, 285 Ga. 240, 245 (5) (675 SE2d 28) (2009) (though movement from one room to another was of minimal duration, such movement was not an inherent part of the armed robbery and created additional danger to the victims); Walker v. State, 305 Ga. App. 607 (699 SE2d 902) (2010) (victims forced at gunpoint into back area, where they were bound and shut in a confined space where they could not be seen from the front office); Dixon v. State, 303 Ga. App. 517, 519 (1) (693 SE2d 900) (2010) (movement occurred prior to assault and rape, was not an inherent part of either of those offenses, and presented a significant, independent danger to the victim).

3. In a related enumeration, Thomas contends that the trial court improperly instructed the jury that only slight movement was required to satisfy the asportation element on the kidnapping charge, which was consistent with the law at the time he was tried. However, because we have found the evidence of kidnapping to be insufficient and reversed Thomas’s conviction for that offense, it is unnecessary for us to consider this enumeration. See Hammond v. State, 289 Ga. 142, 144 (2) (710 SE2d 124) (2011) (holding that the accused is entitled to a jury instruction according to the Garza rule on asportation). Likewise, it is unnecessary for us to consider Thomas’s fourth enumeration of error, which also assigns error to the court’s charge on kidnapping, specifically that the trial court erred “by improperly blurring the distinction between kidnapping and kidnapping with bodily injury.”

4. Thomas also complains about the admission of his in-custody statements, arguing that the State presented insufficient evidence from which the jury could determine that Thomas was fully informed of his Miranda rights. However, as discussed in Division 1, the record shows that only one statement Thomas made while in custody was recorded and admitted into evidence at trial. As to that statement, Investigator Riner testified that after Thomas initiated the interview, he, Riner, reminded Thomas that he had been advised of his rights the night before and that those rights still applied, and he asked Thomas if he remembered those rights. Riner testified that Thomas indicated that he did and that he agreed with the assessment that his statement was being made freely and voluntarily. He agreed that he, not the officer, had initiated the interview. Under these circumstances, we find no merit to the contention that the statement was improperly admitted. Collins v. State, 267 Ga. App. 784, 786-787 (3), (4) (600 SE2d 802) (2004).

5. Thomas next contends that his convictions should have been merged for sentencing, arguing that the aggravated assault and aggravated battery charges should merge with each other and then with his convictions for armed robbery and kidnapping, because these charges “are faceted expressions of a singular event, the attack upon the person of . . . Davis, who during the course of this one assault, was robbed.” Since we have reversed Thomas’s conviction on the kidnapping charge (Count 1), we will consider only whether the remaining offenses should be merged.

First we turn to whether the four aggravated assault charges should be merged. Count 3 of the indictment charged Thomas with aggravated assault with a deadly weapon, to wit, a knife, box cutter or other sharp-edged instrument which was used to slash Davis’s neck. Count 4 of the indictment charged Thomas with aggravated assault by assaulting Davis “with an object, device or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury to wit: a hammer by repeatedly striking his hand with said hammer. ...” Count 7 charged that Thomas committed aggravated assault with intent to murder with a knife, box cutter or other sharp-edged instrument by slashing Davis’s neck and Count 8 charged that Thomas committed aggravated assault with intent to commit murder by wrapping an electrical cord around Davis’s neck to deprive him of oxygen.

“Georgia law prohibits multiple convictions if ‘(o)ne crime is included in the other.’ OCGA § 16-1-7 (a) (1).” Goss v. State, 289 Ga. App. 734, 738 (3) (658 SE2d 168) (2008). Under the express terms of that statute, however, “(t)he rule prohibiting more than one conviction if one crime is included in the other does not apply unless ‘the same conduct’ of the accused establishes the commission of multiple crimes.” Waits v. State, 282 Ga. 1, 4 (2) (644 SE2d 127) (2007).

Ledford v. State, 289 Ga. 70, 71 (1) (709 SE2d 239) (2011).

The counts of the indictment requiring the State to prove that Thomas slashed the victim’s neck with a sharp-edged instrument, hit him with a hammer and wrapped a cord around his neck with the intent to murder were based on different conduct, and merger of those convictions is not required. Rouse v. State, 295 Ga. App. 61, 63-64 (1) (670 SE2d 869) (2008). However, a different result obtains with respect to Counts 3 and 7, both of which allege that Thomas committed aggravated assault by slashing Davis’s neck. Although Count 3 alleges that the assault was done with a deadly weapon and Count 7 alleges it was done with the intent to commit murder, see OCGA § 16-5-21 (a) (1) and (a) (2), these counts were clearly based on a single act since the razor or knife used in that assault broke while it was pressed against Davis’s neck. Thus these counts merely charged the same act of aggravated assault being committed in two of the multiple ways set out in OCGA § 16-5-21. As we explained in Gonzales v. State, 298 Ga. App. 821 (681 SE2d 248) (2009), “[t]his punishes twice the same conduct against the same victim and is akin to charging a defendant with redundant crimes based on a single attack.” Id. at 823. Thus, we agree with Thomas that Count 3 and Count 7 should be merged for sentencing.

We turn next to the aggravated battery counts. In order to prove Count 5 of the indictment, the State had to show that Thomas threw bleach in Davis’s eyes and in order to prove Count 6 of the indictment, the State had to prove that Davis’s finger was rendered useless because it was repeatedly struck with a hammer. Clearly, these counts were predicated on different conduct, and merger is not required. Ledford, 289 Ga. at 71 (1).

However, both the aggravated battery charged in Count 6 and the aggravated assault charged in Count 4 were based on the same conduct of hitting Davis with a hammer, resulting in serious bodily injury to his hand (Count 4) and one of his fingers being rendered useless (Count 6) when he placed his hands up in an attempt to protect his head. Generally,

[i]f the same conduct establishes] the commission of both offenses, it is . . . necessary to take the next step in the analysis by applying the “required evidence” test (as adopted in Drinkard [c. Walker, 281 Ga. 211 (636 SE2d 530) (2006),] pursuant to OCGA §§ 16-1-6 (1), 16-1-7 (a) (1)) for determining when one offense is included in another: “(A) single act may constitute an offense which violates more than one statute, and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other. . . .” Linson v. State, 287 Ga. 881, 885 (4) (700 SE2d 394) (2010).

(Punctuation omitted.) Ledford, 289 Ga. at 72 (1). Allen v. State, 302 Ga. App. 190, 193 (3) (690 SE2d 492) (2010). See also Gonzales, 298 Ga. App. at 823 (explaining when the required evidence test is used to determine if the same conduct may be punished under different criminal statutes).

Applying this test to the circumstances here, we find that the aggravated assault as charged in Count 4 was a lesser included offense of the aggravated battery that was charged in Count 6. Although the aggravated battery required proof that the aggravated assault did not, i.e., that Thomas maliciously caused bodily harm to Davis by rendering his finger useless, we cannot say, as charged in this case, that the aggravated assault required proof of any fact that was not also required to prove the aggravated battery. Allen v. State, 302 Ga. App. at 193-195 (3), and cites.

Moreover, as our Supreme Court recently explained in Ledford, even if merger is not required under the required evidence test,

[t]here are additional statutory provisions concerning prohibitions against multiple convictions for closely related offenses. . . . These provisions include . . . OCGA § 16-1-6 (2) (one crime is included in the other where it differs only in that it involves a “less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability”)[•] These other statutory provisions resolve potential gaps in the Blockburger (v. United States, 284 U. S. 299 (52 SC 180, 76 LE 306) (1932)) “required evidence” analysis which otherwise might support multiple convictions for closely related offenses where multiple convictions are unwarranted. (Cits.)

Ledford, 289 Ga. at 73 (1).

In this case, the aggravated assault as charged required proof of a less serious injury than the aggravated battery as charged. Thus pretermitting whether these two offenses meet the “required evidence” test, merger of these convictions is required on this basis also.

We now turn to whether merger is required of the armed robbery and aggravated assault convictions. As our Supreme Court has explained, aggravated assault is not a lesser included offense of armed robbery as a matter of law, and the two crimes rarely merge as a matter of fact. Henderson, 285 Ga. at 244 (4). First we note that the armed robbery as charged in this indictment required proof of intent to rob and that Davis’s wallet was taken, while the aggravated assaults required proof that Davis’s neck was slashed with a sharp weapon; therefore each of those crimes required proof of conduct that the other did not, and merger was not required. Davis v. State, 281 Ga. 871, 873 (2) (644 SE2d 113) (2007). Further, although the armed robbery was committed with the same weapon as the aggravated assaults charged in Counts 3 and 7, it is certainly not clear that the robbery occurred while Davis’s neck was being slashed; indeed the same sharp weapon was also used to slash Davis’s hand before it was placed against his neck, and it is unclear based on the transcript when in the sequence of events his wallet was taken. Compare Taylor v. State, 304 Ga. App. 395, 397-399 (1) (696 SE2d 686) (2010) (merger required when same act of assault used to establish aggravated assault and armed robbery); see also Long v. State, 287 Ga. 886, 888 (2) (700 SE2d 399) (2010); Lucky v. State, 286 Ga. 478, 482 (2) (689 SE2d 825) (2010) (merger required for armed robbery and aggravated assault with intent to rob convictions).

6. Lastly, Thomas argues that the trial court erred by imposing a recidivist sentence because the State failed to tender certified copies of the three prior felony convictions on which the recidivist sentence was based. The transcript shows and the State concedes that no certified copies of Thomas’s previous convictions were tendered into evidence at sentencing, and the transcript further shows that the prosecutor merely stated at the sentencing hearing that the State had filed a recidivist notice and that Thomas had three prior felonies.

Decided July 1, 2011.

Peter D. Johnson, for appellant.

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

“The burden is on the state to produce competent evidence of a prior conviction for purposes of sentencing.” Brinkley v. State, 301 Ga. App. 827, 830 (2) (689 SE2d 116) (2009). Although the State is not necessarily confined to proving the prior conviction by introduction of a certified copy of the prior conviction, id., it is also true that “a trial court cannot rely upon the hearsay statement of a prosecutor to establish a fact for purposes of sentencing.” Id. at 831. And, we have previously held that “the prosecutor’s statement concerning a prior conviction was not admissible to prove the prior conviction.” Ramsey v. State, 218 Ga. App. 692, 693 (4) (462 SE2d 806) (1995).

Moreover, although the fact that Thomas was sentenced as a recidivist does not appear on the face of the sentencing sheet, the trial judge did indicate that he was following the State’s recommendation in sentencing Thomas, and that recommendation included that Thomas be sentenced as a recidivist. Ramsey, 218 Ga. App. at 693 (4) (trial court’s comments show that prosecutor’s comments on prior conviction were considered in arriving at defendant’s sentence). Thus, the sentence must be vacated, and the case remanded for resentencing. We note, however, that the State is not prohibited on double jeopardy grounds from introducing competent evidence of the prior convictions on remand. Brinkley, 301 Ga. App. at 831 (2).

Judgment of conviction affirmed in part and reversed in part, sentence vacated and case remanded with direction for resentencing.

Blackwell, J., concurs. Barnes, P. J., concurs in judgment only.

       Howard was also charged with various crimes arising out of the events of that day, but he was tried separately from Thomas.

       The legislature’s post-Garza amendment to the kidnapping statute, OCGA § 16-5-40, applies to crimes committed on or after July 1, 2009.

       Pursuant to OCGA § 16-5-21 (a) (2) “[a] person commits the offense of aggravated assault when he or she assaults . . . [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.”

       Pursuant to OCGA § 16-5-24 (a) “[a] person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, [or] by rendering a member of his or her body useless. . . .”


text:
    A11A0153.
    STATE OF GEORGIA v. CENTERS et al.
    (713 SE2d 479)
   Doyle, Judge.

The State of Georgia appeals from an order denying its in rem forfeiture action and adjudicating Wilburn Centers an innocent owner of a vehicle seized by the State when his wife, Tracy Centers, was arrested for possessing methamphetamine and other crimes. Because the trial court erred as a matter of law by concluding that Wilburn was a legal owner of the vehicle when it was seized, we reverse.

Under OCGA § 16-13-49 (o) (5) and (p) (6), an in rem forfeiture proceeding shall be held, as here, by the court without a jury. “Upon appellate review, factual findings made after [such] a bench trial shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Where the evidence is

uncontroverted and no question regarding the credibility of witnesses was presented, we conduct a de novo review of the trial court’s application of law to the undisputed facts . . . [, and we] owe no deference to the trial court’s conclusions of law. Instead, we are free to apply anew the legal principles to the facts.

The relevant evidence is without material dispute and shows that in June 2004, Wilburn obtained financing and bought a used Chevrolet Corvette from another party through an advertisement on the Internet. A certificate of title was issued in Wilburn’s name, and in 2006, after Wilburn paid off the financing for the car, the security interest was released, leaving Wilburn with sole, unencumbered ownership of the vehicle.

In December 2008, Tracy told Wilburn that she had been abusing methamphetamine. Wilburn took her to a rehabilitation facility for evaluation and treatment, searched their home for drugs, and thereafter had Tracy tested for drugs. On January 8, 2009, in honor of Tracy’s recent birthday, Wilburn assigned title to the Corvette to Tracy, and they completed an application for a new certificate of title at the county tag office. On January 9, Tracy drove the Corvette to a funeral for a friend while Wilburn stayed at home. After the funeral, Tracy was arrested with another friend in the Corvette when officers discovered that she possessed a firearm and methamphetamine in the car while parked outside of an elementary school. The officers impounded the Corvette at the scene, and on January 20, 2009, Tracy and Wilburn again executed an assignment and application for a certificate of title, purporting to transfer title back from Tracy to Wilburn. On February 16, 2009, the State initiated this in rem forfeiture action.

Tracy and Wilburn each filed answers in the action, asserting claims to the vehicle. Following a bench trial, the trial court ruled that the forfeiture was authorized as to Tracy, but not as to Wilburn. The State filed this appeal.

The State contends that the trial court erred by ruling that Wilburn had an interest in the vehicle such that he could assert a viable claim as an innocent owner in the forfeiture action. We agree.

“In a condemnation action, once the State has presented a prima facie case for forfeiture, the claimant has the burden of establishing by a preponderance of the evidence that [he] is an innocent owner.” OCGA § 16-13-49 (d) (2) mandates that no person shall have a property right in any “property which is, directly or indirectly, used ... in any manner to facilitate a violation of” the Georgia Controlled Substances Act. Here, as found by the trial court, the State’s evidence showed that

there is no doubt that Mrs. Centers really messed up. She had gotten strung out on drugs. . . . She met with somebody after the funeral who was amongst . . . the wrong crowd. She had drugs in her purse. She had a gun in her car. All of [this] justified everything the law enforcement officers did, justified their seizing of the vehicle and arresting of her and were this case to be determined completely on the conduct of Mrs. Centers there is no question at all but what the court would require a forfeiture.

Thus, because the evidence supported these findings, the trial court correctly ruled that the State had established a prima facie case supporting the forfeiture.

Wilburn’s burden, therefore, was two-fold:

in order to establish standing to contest the forfeiture[,] the claimant has the burden of proving the nature and extent of his interest in the property. Second, the claimant must prove by a preponderance of the evidence that he is entitled to the [innocent owner] exception as defined by the statute.

The forfeiture statute defines the term “owner” as “a person, other than [a secured party], who has an interest in the property ... ,” and requires such a claimant to show that he:

(A) Is not legally accountable for the conduct giving rise to its forfeiture, did not consent to it, and did not know and could not reasonably have known of the conduct or that it was likely to occur;
(B) Had not acquired and did not stand to acquire substantial proceeds from the conduct giving rise to its forfeiture other than as an interest holder in an arm’s length commercial transaction;
(C) With respect to conveyances for transportation only, did not hold the property jointly, in common, or in community with a person whose conduct gave rise to its forfeiture-,
(D) Does not hold the property for the benefit of or as nominee for any person whose conduct gave rise to its forfeiture, and, if the owner or interest holder acquired the interest through any such person, the owner or interest holder acquired it as a bona fide purchaser for value without knowingly taking part in an illegal transaction; and
(E) Acquired the interest: (i) Before the completion of the conduct giving rise to its forfeiture, and the person whose conduct gave rise to its forfeiture did not have the authority to convey the interest to a bona fide purchaser for value at the time of the conduct; or (ii) After the completion of the conduct giving rise to its forfeiture: (I) As a bona fide purchaser for value without knowingly taking part in an illegal transaction; (II) Before the filing of a lien on it and before the effective date of a notice of pending forfeiture relating to it and without notice of its seizure for forfeiture under this article; and (III) At the time the interest was acquired, was reasonably without cause to believe that the property was subject to forfeiture or likely to become subject to forfeiture under this article,

With respect to Wilburn, who did everything in his power to prevent Tracy’s drug use and rehabilitate her, the trial court announced its decision not to focus on individual legal questions but rather to “do what’s right.” While the trial court may be correct that the State’s pursuit of forfeiture in this particular case seems to be a disproportionate remedy to Tracy’s use of the Corvette, the forfeiture statute authorized the State’s action, and we cannot ignore Wilburn’s obligation to meet his statutory burden. Thus, despite the trial court’s laudable intention, we conclude that the court erred by overlooking the fact that Wilburn had divested himself of legal title to the Corvette the day before it was seized. Thus, he could not show that he was the “owner” of the Corvette for purposes of contesting the forfeiture as an innocent owner.

Wilburn points out on appeal that the certificate of title was issued to Tracy on January 13, 2009 — four days after the seizure. However, this does not change the fact that he assigned his interest to her on January 8, and the certificate itself listed the purchase date (in this case, the date of the gift) as January 8 — one day before the seizure. Further, OCGA § 40-3-32 (a), which addresses the transfer of vehicles, requires the transferor to, “at the time of delivery of the vehicle, execute an assignment and warranty of title to the transferee in the space provided therefor on the certificate of title . . . and cause the certificate and assignment to be delivered to the transferee.” This is exactly what happened on January 8; thus, the assignment to Tracy was completed one day before the seizure, and Wilburn had no ownership interest in the vehicle on that day.

Furthermore, even assuming the transaction was somehow incomplete during the pendency of Tracy’s application for a certificate of title, Wilburn had a burden to show that he “did not hold the property jointly, in common, or in community with a person whose conduct gave rise to its forfeiture.” As explained by Wilburn himself, he believed that the certificate of title “doesn’t matter with the name[,] everything we own is ours from the point we was married[;] that’s kind of the whole thing when you take the [marriage] oath[,] that everything is ours. . . . We still own [the vehicle] jointly.” Consistent with their practice of community ownership, Wilburn sought to formalize Tracy’s interest in the Corvette by transferring title to her. Thus, at least as of January 8, 2009, the evidence cannot support a finding that Wilburn did not hold the Corvette jointly or in community with Tracy, whose conduct gave rise to the forfeiture. Accordingly, Wilburn failed to meet his burden under OCGA § 16-13-49 (e) (1) (C).

Finally, the January 20 transfer back to Wilburn does not change this analysis, because Wilburn cannot show that “[a]t the time [that] interest was acquired, [he] was reasonably without cause to believe that the property was subject to forfeiture or likely to become subject to forfeiture under this article.” Wilburn witnessed the seizure of the vehicle, and he and Tracy attempted the January 20, 2009 transfer specifically because of the questionable status of the Corvette.

Decided July 1, 2011.

Joe W. Hendricks, Jr., District Attorney, David V. Rhoden, Assistant District Attorney, for appellant.

Weaver & Weaver, George W. Weaver, for appellees.

In light of the undisputed evidence showing that Wilburn lacked title to the Corvette and that any other interest he might have had was in community with Tracy, the trial court erred by finding him an innocent owner. Therefore, we reverse the trial court’s judgment.

Judgment reversed.

Ellington, C. J., and Miller, P. J., concur.

       See Lyon v. State of Ga., 230 Ga. App. 264 (495 SE2d 899) (1998).

       (Punctuation omitted.) Id.

       (Punctuation and footnote omitted.) Migliore v. State of Ga., 240 Ga. App. 783, 784 (525 SE2d 166) (1999).

       (Punctuation omitted.) Sumner u. State of Ga., 306 Ga. App. 140, 141 (1) (701 SE2d 585) (2010).

       See OCGA §§ 16-13-20; 16-13-30 (a).

       See Gearin v. State of Ga., 218 Ga. App. 390, 391-392 (2) (461 SE2d 562) (1995) (forfeiture of vehicle authorized by presence of methamphetamine and gun in vehicle).

       (Citations and punctuation omitted.) State of Ga. v. Banks, 215 Ga. App. 828, 832 (2) (452 SE2d 533) (1994).

       OCGA § 16-13-49 (a) (6), (7).

       (Emphasis supplied.) OCGA § 16-13-49 (e) (1). See State of Ga. v. Davis, 292 Ga. App. 387, 388 (665 SE2d 350) (2008).

       See, e.g., Banks, 215 Ga. App. at 830 (1) (“it is the substantive law of contract (and not the Motor Vehicle Certificate of Title Act) which creates and defines property interests in motor vehicles”); McFarley v. State of Ga., 268 Ga. App. 621, 623 (602 SE2d 341) (2004).

       OCGA § 16-13-49 (e) (1) (C).

       See Sumner, 306 Ga. App. at 142-143 (2).

       OCGA § 16-13-49 (e) (1) (E) (ii) (III).


text:
    A11A0212.
    SMITH v. THE STATE.
    (714 SE2d 51)
   Doyle, Judge.

Brenton James Smith was charged with child molestation and statutory rape. The jury found him guilty of child molestation and not guilty of statutory rape. Smith appeals the denial of his motion for new trial, arguing that the trial court erred in its charge to the jury. We agree, and therefore reverse.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. In addition, we determine only the legal sufficiency of the evidence adduced at trial and do not weigh the evidence or assess the credibility of the witnesses.

So viewed, the facts relevant to this appeal show that when the victim, A. S., was 12 years old, her mother sent her on weekends to stay with a family friend, “Mac” Caldwell. Caldwell told A. S. that she could be a model, and he began photographing her. Initially, A. S. was clothed for the photographs, but Caldwell then provided her with alcohol and took what the victim described as “promiscuous” photographs, including one of her vagina. Caldwell then uploaded a photograph of A. S. onto an adult website, listing her name as a pseudonym. Caldwell then communicated with men who accessed the website, and he gave them the number for A. S.’s cell phone, which he had provided for her. According to A. S., she received phone calls from “lots” of men.

Smith began communicating with the person he believed to be A. S. via instant messenger and then through e-mail, including exchanging photographs of Smith and A. S. and Smith’s penis; it appears, however, that Smith was actually communicating with Caldwell, who was holding himself out as A. S. Caldwell then gave A. S. Smith’s phone number, and she called him. A. S. and Smith had multiple telephone conversations, and they eventually set up a meeting at Caldwell’s house.

Smith arrived at the house, and A. S. met him outside and then took him into the furnished basement. According to A. S., she “had sexual intercourse” with Smith on the couch, and he left shortly thereafter. A. S. testified that she called Smith afterward because “[she] liked him,” but “he [made] up excuses to not see [her].”

At trial, Smith admitted that he exchanged e-mails with someone he believed to be A. S., he spoke on the phone to A. S., and he met her at a house in Gwinnett County for the purpose of having sex with her. According to Smith, A. S. was “shorter than she had communicated that she was to [him]. And she had a lot more acne. Plus her hair was not that black color . . . [and] it was shorter. ...” A. S. was drinking a bottle of Smirnoff Ice, and she appeared to be intoxicated, slurring her words. The two then “talked about having sex, what it would lead to. She then proceeded to talk about some odder sexual things that [they] had not previously discussed.” While they were talking, A. S.’s phone rang, and she immediately went upstairs to take the call, leaving Smith in the basement. While A. S. was gone, Smith began to worry that the situation was “weird,” realizing that he had no idea who was upstairs, and concluded that he was not in control of the situation, which he described as “unpredictable.” According to Smith, when A. S. returned to the basement, she asked him if he wanted to kiss her. Smith then told her,

I’m sorry. Between you taking phone calls in private and discussing this other stuff that we had never discussed before, I don’t think I can go through with this. It’s not what I thought. It’s not what I envisioned when I started the contact. When I thought about it — it’s not what I thought. I don’t want to be here.

Smith testified that A. S. “was upset. She asked, is this because I’m not pretty? Is it a personal reason, along those lines, were her questioning [sic]. And ... I said, it’s not because I don’t find you attractive, it’s not because of any of that. It’s a weird situation!,] and I’m not comfortable[,] and I just want to go home.” Smith stated that he then left the house without having sex with A. S. A. S. subsequently called Smith several times, encouraging him to “try it again,” offering that they didn’t have to “do the odd stuff,” but he declined. A. S. eventually stopped calling Smith after he asked her not to contact him anymore.

Thereafter, the FBI began investigating Caldwell after a coworker reported seeing possible child pornography on his work computer. During the investigation, the authorities identified A. S. as a victim of child pornography, and they interviewed her, during which time she stated that she had engaged in sexual relations with “Brent” at Caldwell’s home. After further investigation, including seizure of Caldwell’s computer, the FBI identified Smith as a suspect, and A. S. identified him from a photograph during a subsequent interview.

1. Smith argues that the trial court’s jury charges and subsequent response to jury questions violated his due process rights because they allowed him to be convicted of child molestation in a manner not alleged in the indictment. We agree.

The indictment alleged that Smith committed child molestation by “unlawfully perform[ing] an immoral and indecent act upon the person of [A. S.], a child under the age of sixteen (16) years, by placing his penis in her vagina with intent to arouse and satisfy the sexual desires of said child and said accused. ...” The trial court gave the jury the following instruction as to the child molestation offense: “[a] person commits the offense of child molestation when that person does an immoral and indecent act to a child less than 16 years of age with the intent to arouse and satisfy the sexual desires of the person and the child.” During deliberations, the jury sent a note to the trial court asking, “Can a sexual conversation alone constitute an indecent act?” and “What is the State’s standard definition of immoral and indecent act?” Following discussion with counsel, the trial court instructed the jurors: “You’ll have to refer to the charge as a whole and the indictment and the evidence.”

On appeal, Smith argues that the jury charge and the response to the question led the jury to believe that they could convict him of child molestation based on a conversation alone, without concluding that he placed his penis in her vagina as alleged in the indictment. Smith maintains that based on the jury’s questions, coupled with the fact that it found him not guilty of statutory rape, it is probable that the jury found him guilty of committing child molestation in a manner not charged in the indictment.

A criminal defendant’s right to due process may be endangered when ... an indictment charges the defendant with committing a crime in a specific manner and the trial court’s jury instruction defines the crime as an act which may be committed in a manner other than the manner alleged in the indictment. The giving of a jury instruction which deviates from the indictment violates due process where' there is evidence to support a conviction on the unalleged manner of committing the crime and the jury is not instructed to limit its consideration to the manner specified in the indictment.
While instructing the jury that a crime can be committed in a manner different from that charged in the indictment can constitute reversible error, a reversal is not mandated where . . . the charge as a whole limits the jury’s consideration to the specific manner of committing the crime alleged in the indictment.

Here, the trial court read the indictment to the jury, instructed the jury that the State had the burden of proving every material violation of the indictment beyond a reasonable doubt, and sent the indictment and a written copy of the jury instructions out with the jury during deliberations. “The court, however, did not give a limiting instruction to ensure that the jury would find [Smith] guilty of [child molestation] in the specific manner charged in the indictment. Nor did the court instruct the jury not to consider [child molestation] as having occurred in another manner.” When the jury expressed its confusion by asking whether sexual conversations could constitute an immoral or indecent act, the trial court should have instructed the jury to limit its consideration to determining whether Smith was guilty of committing child molestation in the specific manner alleged in the indictment only. Instead, the trial court aggravated the confusion by simply referring the jury to the charge and the indictment, with no limiting or remedial instruction.

The evidence presented at trial included A. S.’s testimony that Smith penetrated her vagina with his penis, and Smith’s own testimony that he engaged only in sexual conversations with the victim. Under the circumstances of this case, including the jury’s verdict finding Smith not guilty of statutory rape, we conclude that “there is a reasonable possibility that the jury convicted the defendant of the commission of a crime in a manner not charged in the indictment.” Smith is therefore entitled to a new trial on the charge of child molestation.

2. In light of our holding in Division 1, we need not address Smith’s remaining enumerations.

Decided July 1, 2011

Kish & Lietz, Paul S. Kish, for appellant.

Daniel J. Porter, District Attorney, Lisa A. Jones, Assistant District Attorney, for appellee.

Judgment reversed.

Ellington, C. J., and Miller, P. J., concur.

       OCGA § 16-6-4 (a).

       OCGA § 16-6-3 (a).

       (Footnotes omitted.) Disabato v. State, 303 Ga. App. 68 (692 SE2d 701) (2010). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       To maintain the victim’s privacy, we have omitted her pseudonym and refer to her only by her initials.

       There is no evidence that A. S. received or reviewed any of the e-mails or instant messages, with the exception of a single photograph of Smith that Caldwell showed to A. S.

       Caldwell had placed many cameras in the basement.

       Caldwell was ultimately convicted in federal court of manufacturing child pornography. In a related action, another individual, George Brian Disabato, was convicted of committing aggravated sexual battery, aggravated child molestation, and child molestation of A. S. at Caldwell’s house; Disabato’s conviction was affirmed on appeal. See Disabato, 303 Ga. App. at 68.

       A redacted copy of the FBI’s interview of A. S. was shown to the jury.

       (Emphasis supplied.) OCGA § 16-6-4 (a) provides that “[a] person commits the offense of child molestation when fhe or she does] any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” (Emphasis supplied.) The pattern jury charge on child molestation tracks the Code section. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 2.34.10 (4th ed. 2007).

       It appears from the record that the trial court simply wrote its response to the jury’s questions on the note, as opposed to verbally instructing the jury. Although copies of other notes from the jury were included in the record, the note containing the question at issue and the trial court’s response thereto is not in the appellate record. However, the colloquy between the trial court and counsel indicates the trial court’s specific response to the questions, and neither party contests the substance of that response on appeal.

       Although Smith failed to object to the jury instructions, including the response to the jury’s questions, “the jury charge constitutes plain error which affects substantial rights of the defendant.” (Citation and punctuation omitted.) Milner v. State, 297 Ga. App. 859, 859, n. 1 (678 SE2d 563) (2009). We note that Smith also alleges that trial counsel’s failure to so object constituted ineffective assistance of counsel.

       (Citations omitted.) Harwell v. State, 270 Ga. 765, 766 (1) (512 SE2d 892) (1999).

       (Punctuation omitted.) Machado v. State, 300 Ga. App. 459, 462 (5) (685 SE2d 428) (2009).

       (Citation omitted.) Milner, 297 Ga. App. at 860 (1). See also Hall v. Wheeling, 282 Ga. 86, 87 (1) (646 SE2d 236) (2007); Chapman v. State, 273 Ga. 865, 868-869 (2) (548 SE2d 278) (2001); Hopkins v. State, 255 Ga. App. 202, 204-206 (2) (564 SE2d 805) (2002).

       We recognize that our Supreme Court has abolished the inconsistent verdict rule in criminal cases. See Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986). Smith, however, does not argue that the verdict was inconsistent, but instead points out that the not guilty verdict on the statutory rape charge supports his argument that the trial court’s instructions to the jury as to the child molestation charge were erroneous.

       (Punctuation omitted.) Dukes v. State, 265 Ga. 422, 423 (457 SE2d 556) (1995). See also Hall, 282 Ga. at 87 (1); Chapman, 273 Ga. at 869 (2); Craft v. State, 309 Ga. App. 698, 703 (5) (710 SE2d 891) (2011); Milner, 297 Ga. App. at 860 (1); Hopkins, 255 Ga. App. at 206 (2); Walker v. State, 146 Ga. App. 237, 244 (2) (246 SE2d 206) (1978).


text:
    A11A0336.
    SANDERSON FARMS, INC. v. ATKINS.
    (713 SE2d 483)
   Adams, Judge.

Jessie Atkins, a federal food inspector, sued Sanderson Farms, Inc. (“Sanderson”) after he allegedly slipped and fell on a piece of viscera at Sanderson’s chicken processing plant. Sanderson appeals the Superior Court of Colquitt County’s denial of its motion for summary judgment. The trial court found that a genuine issue of material fact exists as to whether Sanderson had equal or superior knowledge of the allegedly hazardous condition of the floor, in light of Sanderson’s employment of “floor people” charged with the responsibility of keeping the plant floors clean. We granted Sander-son’s application for interlocutory appeal, but 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. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

So viewed, the record shows that Sanderson owns and operates a chicken processing plant in Moultrie. In addition to Sanderson employees, daily on-site, federal food inspectors are required to inspect each bird processed in the plant. See 21 USC § 451 et seq. Atkins began working for the United States Department of Agriculture (“USDA”) as a poultry line inspector in 2001, working in several different poultry plants before he was transferred to Sand-erson in 2005. His duties required him to stand on an elevated platform (a few steps up, perhaps three feet high) and inspect hanging chicken carcasses for signs of disease or pathogens as they moved through a motorized processing line. He worked in close proximity with other USDA and Sanderson employees at his workstation. In fact a Sanderson “trim person” worked next to each inspector; that person responds to the inspector’s instructions regarding suspect meat by either marking it, discarding it, condemning it, or taking it to a veterinarian or plant official for inspection. A big trough of water runs along the floor under the processing line, in which “the guts and water run down.”

Between 2005 and 2007, Atkins worked the morning shift from 5:15 a.m. to 1:45 p.m. At around 9:00 a.m. on January 16, 2007, as he began to leave for a scheduled, ten-minute, inspector break, and after being replaced by another USDA inspector, Atkins allegedly slipped and fell down the metal stairs of his platform. Atkins testified that he slipped on a piece of chicken viscera that was on the platform itself, at the top of the steps. He saw the substance on his shoe after the fall. Atkins alleges that he has severe back pain as a result of the accident and may need surgery in the future.

There is no indication in the record that anyone saw the substance before the fall. Atkins admits that he does not know how long the substance was on the platform before he stepped on it and that he does not know if any Sanderson employees were aware that it was there.

On appeal, Sanderson contends that Atkins was a mere licensee and not an invitee, and that therefore the corresponding lower standard of care applies. An owner is liable to a licensee only for wilful or wanton injury, see OCGA § 51-3-2, for which there is admittedly no evidence here. Sanderson also contends that even under the invitee standard, it is not liable to Atkins based on the evidence in the record. We disagree with both points.

1. Sanderson argues that, as an inspector employed by the USDA, Atkins should be classified as a licensee. We disagree. In Georgia, a licensee “(1) Is neither a customer, a servant, nor a trespasser; (2) Does not stand in any contractual relation with the owner of the premises; and (3) Is permitted, expressly or impliedly, to go on the premises merely for his own interests, convenience, or gratification.” OCGA § 51-3-2 (a). On the other hand, one is an invitee where “an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose.” OCGA § 51-3-1. “An invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using it.” Ballenger Paving Co. v. Gaines, 231 Ga. App. 565, 571 (499 SE2d 722) (1998). “The test is whether the injured person at the time of the injury had present business relations with the owner of the premises which would render his presence of mutual aid to both, or whether his presence on the premises was for his own convenience.” Id.

Atkins was not present at Sanderson merely for his own pleasure or convenience but rather pursuant to USDA responsibilities. The record establishes that Sanderson could not have legally conducted business without the presence of USDA inspectors, which indicates that Sanderson received an advantage from Atkins’s presence on the property. It is easy to infer that Sanderson invited Atkins onto the premises in order to ensure compliance with federal regulations so that it could operate the plant. “An implied invitation is one which is held to be extended by reason of the owner doing something or permitting something to be done which fairly indicates to the person entering that his entry and use of the property is consistent with the intents and purposes of the owner.” (Citation and punctuation omitted.) Handiboe v. McCarthy, 114 Ga. App. 541, 541 (1) (151 SE2d 905) (1966).

Sanderson cites two cases for the proposition that “government employees who are present on the property of another, under permission of law, are licensees rather than invitees”: Baxley v. Williams Constr. Co., 98 Ga. App. 662 (1) (106 SE2d 799) (1958) (fireman responding to a fire); London Iron & Metal Co. v. Abney, 245 Ga. 759 (267 SE2d 214) (1980) (police officer responding to a burglar alarm). But these cases involve injuries sustained by a firefighter and a police officer in the course of responding to emergencies not predictable by the premises owner. As the Court in Baxley explained,

it is impossible to forecast the precise place where or time when the fireman’s duties may call him, and to require an owner or occupier of premises to exercise at all times the high degree of care owed to an invitee in order to guard against so remote and unpredictable an injury would be an intolerable burden.

Baxley, 98 Ga. App. at 669. See also London Iron, 245 Ga. at 760 (same reasoning). Here, by contrast, Sanderson obviously prepared for USDA inspectors to be on the premises on a daily basis. Among other things, Sanderson provided platforms and break rooms for the USDA inspectors, as well as hired employees specifically to assist them.

Sanderson also relies on dicta in one case that states that there is “considerable doubt that [a federal poultry inspector] occupied the status of an invitee on appellee’s business premises rather than that of a mere licensee.” Pierce v. Fieldale Corp., 194 Ga. App. 303, 304 (390 SE2d 298) (1990). In addition to the statement being dicta, the Court cited London Iron, the police officer case, which itself explains that permission to enter the premises will constitute an invitation if “ ‘circumstances . . . imply an assurance that the premises have been prepared and made safe for the particular visit.’ Prosser, Torts, § 60, p. 378 (4th Ed. 1971).” London Iron, 245 Ga. at 760 (1). See also Restatement (Second) of Torts, § 345, comment c (distinguishing those who enter the premises “for a purpose directly or indirectly connected with the business of the possessor,” such as “a building, sanitary, or safety inspector” who generally are invitees, from firemen and policemen who “are likely to enter at unforeseeable times, upon unusual parts of the premises, and under circumstances of emergency”).

In conclusion, we hold that Atkins was an invitee.

2. Applying the standard for invitees, summary judgment was properly denied because Sanderson failed to carry its burden on summary judgment to establish that it did not have constructive knowledge of the substance on the floor. An owner/occupier owes invitees “a duty of ordinary care to have the premises in a reasonably safe condition and not to expose the invitees to unreasonable risk or to lead them into a dangerous trap.” (Citations omitted.) Robinson v. Kroger Co., 268 Ga. 735, 740 (1) (493 SE2d 403) (1997); OCGA § 51-3-1. “This includes inspecting the premises to discover possible dangerous conditions of which the owner/occupier does not have actual knowledge, and taking reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises.” (Citations omitted.) Id. “Where reasonable minds can differ as to the conclusion to be reached with regard to questions of whether an owner/occupier breached the duty of care to invitees and whether an invitee exercised reasonable care for personal safety, summary adjudication is not appropriate.” (Citation omitted.) Id.

Because Atkins does not allege that Sanderson had actual knowledge of the substance, we consider constructive knowledge, which can be shown in two ways: (1) “by showing that an employee of the defendant was present in the immediate area and could easily have seen the substance and removed it”; or (2) “by showing that the substance was on the floor for such a time that it would have been discovered and removed had the proprietor exercised reasonable care in inspecting the premises.” (Citation omitted.) Roberson v. Winn-Dixie Atlanta, 247 Ga. App. 825, 826 (544 SE2d 494) (2001).

Here, Atkins does not argue the first prong. Moreover, there is no evidence that anyone was in the immediate area at the time of the accident who could have easily seen the substance. Although a Sanderson trim person was working next to Atkins, she used separate steps on the platform, and there is no evidence that she was in a position to easily see a substance on Atkins’s platform. “[S]how-ing that an employee was merely working in the immediate area of a foreign substance is not enough; the employee must have been in a position to have easily seen the substance and removed it.” (Citation and punctuation omitted.) Brown v. Host/Taco Joint Venture, 305 Ga. App. 248, 250 (699 SE2d 439) (2010). There is also no evidence that the substance was “of a size or nature that would have made it easily visible.” Id.

With regard to inspections, “[i]n order to prevail at summary judgment based on lack of constructive knowledge, the owner must demonstrate not only that it had a reasonable inspection program in place, but that such program was actually carried out at the time of the incident.” (Citation omitted.) Brown, 305 Ga. App. at 251. Sanderson established that it has a customary inspection and cleaning procedure. The evidence shows that overnight and three times a shift, during company breaks when the chickens are not circulating, Sanderson “floor people” clean all the floors and platforms with high pressure hoses. At all other times, the floor people constantly circulate, picking up chicken parts that have fallen on the floor and platforms and using their hoses to clean up as often as needed; keeping the place clean is their sole responsibility.

Sanderson has failed, however, to introduce any evidence to show adherence to this inspection and cleaning procedure on the day of Atkins’s fall. The first company break was scheduled for 7:30 a.m. Atkins fell at about 9:00 a.m., at the beginning of an inspector break, which comes in between company breaks. But there is simply no evidence in the record that the cleaning scheduled prior to Atkins’s fall was in fact performed that day. Nor is there any evidence establishing that the floor people were attending to their constant cleaning duties in Atkins’s area on the morning he fell. The only evidence is that on that day, three floor people were scheduled to be on duty. The Sanderson processing manager could not name all the people working that day or testify if anyone was absent. He indicated that he could tell if he checked his records or the computer system, but no information of that sort was introduced into evidence. Nor is there any evidence as to what any of these employees were doing on the morning of the fall.

“Evidence establishing an adherence to customary inspection and cleaning procedures on the specific day in question is required, while proof of the mere existence of such customary procedures is insufficient. [Cit.]” Mallory v. Piggly Wiggly Southern, 200 Ga. App. 428, 430 (1) (408 SE2d 443) (1991). In Ingles Markets v. Martin, 236 Ga. App. 810 (513 SE2d 536) (1999), this Court affirmed the denial of summary judgment where there was testimony that the store’s floor was usually swept every hour but no evidence that the sweeping was performed on the day of the fall. Id. at 812. And although Atkins does not know how long the viscera was on the platform before he fell, “a plaintiff need not show how long a substance has been on the floor unless the defendant has established that reasonable inspection procedures were in place and followed at the time of the incident. [Cits.]” Straughter v. J. H. Haney Co., 232 Ga. App. 29, 30 (1) (500 SE2d 353) (1998) (“no admissible evidence in the record that defendant followed a reasonable inspection and sweeping policy on the date in question”).

Decided July 1, 2011

Coleman Talley, George T. Talley, Eric A. Collins, for appellant.

Goldberg & Dohan, Nathan W. Kotas, for appellee.

Finally, it is true that “a ‘proprietor may be liable only if he had superior knowledge of a condition that exposed an invitee to an unreasonable risk of harm.’ [Cit.]” Dickerson v. Guest Services Co. of Virginia, 282 Ga. 771, 772 (653 SE2d 699) (2007); Robinson, 268 Ga. at 736. And both Sanderson and Atkins knew the risk of chicken viscera on the platform. But “it is the plaintiffs knowledge of the specific hazard precipitating a slip and fall which is determinative, not merely his knowledge of the generally prevailing hazardous conditions or of hazardous conditions which plaintiff observes and avoids.” (Punctuation and footnote omitted.) Barton v. City of Rome, 271 Ga. App. 858, 861 (610 SE2d 566) (2005). See, e.g., Nosiri v. Helm, 301 Ga. App. 380, 381 (687 SE2d 635) (2009) (no evidence that plaintiff was aware of exact position of cord on the day she fell even though she knew it had been there the day before her fall and other days). Compare Pierce, 194 Ga. App. at 304-305 (plaintiff had equal knowledge of slippery floor; not a foreign substance case). There is no evidence here that Atkins had specific knowledge of the substance on which he fell.

Judgment affirmed.

Barnes, P. J., and Blackwell, J., concur.