text:
    A12A2223.
    SUTTON v. THE STATE.
    (737 SE2d 706)
   Ellington, Chief Judge.

Eric Sutton appeals from the denial of his motion to suppress evidence seized pursuant to a search warrant executed at his home. He contends that the trial court erred in denying the motion based upon a finding that the affidavit accompanying the search warrant application was legally sufficient to establish probable cause. As explained below, we agree and reverse.

Under OCGA § 17-5-30 (a) (2), a defendant may move the court to suppress seized evidence on the grounds that “[t]he search and seizure with a warrant was illegal because the warrant is insufficient on its face, there was not probable cause for the issuance of the warrant, or the warrant was illegally executed.” Further, under OCGA § 17-5-30 (b), “the burden of proving that the search and seizure were lawful shall be on the [S]tate.” See also Dearing v. State, 233 Ga. App. 630, 632 (505 SE2d 485) (1998) (In response to a motion to suppress evidence seized pursuant to a search warrant, the State has the burden of proving that an informant who provided information to the affiant applying for the search warrant was reliable.).

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.

(Citation and punctuation omitted.) Bryant v. State, 288 Ga. 876, 893 (13) (a) (708 SE2d 362) (2011). Further, where “other investigation supports the information of the informant, this can be considered as a part of the reliable basis for the finding of probable cause.” (Citation and punctuation omitted.) State v. Davis, 217 Ga. App. 225, 227 (457 SE2d 194) (1995).

In determining the sufficiency of a search warrant affidavit, the issuing magistrate or judge must make a practical, common sense decision whether, given all the circumstances set forth in the affidavit, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Our duty as a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. In reviewing the lower court’s decision, we give great deference to the magistrate’s determination of probable cause; a presumption of validity attaches to an affidavit supporting a search warrant, and doubtful cases are resolved in favor of upholding the search warrant. The contents of the affidavit are reviewed in the light most favorable to upholding the trial court’s determination.

(Footnotes omitted.) Price v. State, 297 Ga. App. 501, 501-502 (677 SE2d 683) (2009).

While the trial court’s findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

(Citations omitted.) Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994). So viewed, the record shows the following facts.

In November or December 2010, an informant contacted an officer of the Flowery Branch Police Department with allegations that the defendant was using and selling illegal drugs. The informant, identified by the officer as “It,” had received such information from a person with whom It had a “personal relationship.” According to It, that person, identified in the affidavit as “Source A,” had a personal relationship with the defendant. However, It had no direct relationship with the defendant, nor had he or she ever personally observed the defendant using or selling drugs. The only information It provided to the officer was what Source A had told him or her. Notably, although Source A reported to It that he or she had seen the defendant use drugs he or she believed to be marijuana, Source A did not report that he or she had ever seen the defendant sell any drugs.

Other than confirming It’s statements that the defendant lived at a certain address, drove a certain type of truck, and once owned a certain business, the officer did not conduct an investigation to confirm or corroborate It’s statements about the defendant, such as performing surveillance of the defendant’s home or conducting a controlled purchase of drugs. Instead, based solely upon It’s hearsay statements, the officer executed an affidavit and applied for a search warrant for the defendant’s home.

The complete statement in the officer’s affidavit that accompanied the search warrant application is as follows:

On or between the dates of November 22, 2010 and December 01,2010, [the officer], a sworn and certified police officer employed for the past 4 and 1/2 years with the City of Flowery Branch, GA and herein after referred to as “your affiant,” was contacted by a source of information whom your affiant will herein after refer to as “It.”
During the course of the contact, “It” stated to affiant that, on or between the afore mentioned dates, “It” had the opportunity to engage in an unsolicited conversation with a third party, herein after referred to as “[S]ource A,” regarding Eric Sutton of 1519 Treepark Apartments in Flowery Branch, GA. More specifically, the conversation focused on [S]ource A’s concern that Eric Sutton was, during the above mentioned dates, actively engaged in the use, storage, and distribution of marijuana. Source A is not personally experienced with marijuana and characterizes the substance based upon representation by Sutton and manner of usage by Eric Sutton.
Source A’s concern was expressed to “It” from the point of view of genuine concern for Sutton’s health and personal welfare. Source A stated to “It” that Sutton had lost approx. 40 pounds of weight over the past year and that he has displayed an increasing verbal abusive demeanor, has become short tempered and has displayed increasing physical aggression toward others. Source A stated to “It” that Source A is additionally concerned for the safety of the general public and the law enforcement community due to the level of controlled substance abuse by Sutton. Source A is more specifically concerned because Sutton possesses numerous firearms and Source A is fearful that Sutton is likely to use those firearms against law enforcement or an innocent member of the community while experiencing drug induced paranoia.
What Source A related to “It” is considered by your affiant to be truthful, reliable and credible because Source A has a personal relationship with Sutton. As a result of the personal relationship, Source A has had the opportunity, in the past, to make such observations of Sutton as well as to have personally observed the facts and circumstances related. Source A had no apparent motivation to falsify the information related to “It” and because Source A had no reason to believe the facts and circumstances would ever be repeated to law enforcement. Additionally, Source A and “It” have a personal relationship. During the time of the personal relationship, “It” has never known Source Ato have lied to “It.”
What “It” related to affiant is considered by your affiant tobe truthful, reliable, and credible because affiant is unable to detect any motivation by “It” to falsify the information related to your affiant. Additionally, affiant has learned that “It” is a mature person firmly established and with significant connections in “It’s” community. “It” is gainfully employed with no known criminal record. Similar to Source A, “It” felt compelled to forward the information to law enforcement regarding Sutton because of a genuine concern for the health and best welfare of Eric Sutton as well as out of concern for the general public and the law enforcement community. Other descriptors indicative of reliability and credibility can be provided by your affiant in the form of oral testimony. Your affiant is reluctant to do so in writing at this time because of the level of fear of Sutton’s retaliation should information appear that leads Sutton to the identity of either Source A or “It.”
Last, “It” provided affiant with the residential address of Eric Sutton, a description of the vehicle he most typically operates, and that he use[d] to own a Company known as TAB Inc.
Affiant checked Georgia Crime Information Center (GCIC) information on Nov. 30, 2010, regarding Sutton’s driver’s license and found Eric Sutton to be registered as a licensed driver in the State of Georgia with a residential address of 1519 Treepark Circle, Treepark Apartments, Flowery Branch, GA 30542. On November 30, 2010 affiant traveled to the 1500 building of Treepark Apartments and did personally observe the black pickup truck with a lift kit bearing the GA tag TABINC, as described by “It,” parked in the handicap parking space in the front of [the] building numbered 1500. Affiant checked GCIC information regarding the tag displayed on the truck and found the tag to be registered to Eric Sutton of 1519 Treepark Circle, TreeparkApartments, Flowery Branch, GA 30542. Additionally, the tag was shown to be registered on a black 2007 GMC Sierra K1500. Affiant checked public records regarding Sutton’s former business and learned that Sutton was listed as the former owner of a business located on McEver Rd. in Oakwood, GA identified as TAB Merchandising, Inc.
Affiant’s training and experience [have] shown that persons involved in the possession, usage, and distribution of marijuana frequently keep and maintain weighing devices as well as packaging materials. These weighing devices and packaging materials are used to insure the receipt of the correct amount of contraband purchased or sold and are used to store the contraband substance as well as to maintain freshness. These items of property are considered to be tools integral within the trade of such contraband substances.
Based upon all of the foregoing facts and circumstances, affiant believes this affidavit is so that a search warrant may be issued.

The officer presented no other evidence to the Magistrate Court of Hall County before the magistrate issued the search warrant. After the officer executed the warrant, the defendant was arrested and charged with, inter alia, possession of marijuana and alprazolam with intent to distribute.

The defendant filed a motion to suppress evidence seized pursuant to the warrant. The trial court denied the motion, finding that the affidavit “provided sufficient information to enable the magistrate to determine that ‘It’ was a ‘concerned citizen.’ ” The court also concluded that, “[b]ased on the facts stated by Source A to It and recited in the Affidavit,” the magistrate court was authorized to find that there was probable cause to search Sutton’s home. This appeal followed.

1. Sutton contends that the trial court erred in denying his motion to suppress based upon its finding that, in the officer’s affidavit supporting his request for a search warrant, It was a “concerned citizen.” Sutton argues that there was no evidence to support that finding or to show that It was otherwise reliable.

An informant’s veracity, reliability, and basis of knowledge are highly relevant in determining the value of his report and[,] while these elements are not entirely separate and independent elements to be rigidly exacted in every case, they are closely intertwined issues that may usefully illuminate the common-sense, practical question whether there is probable cause to believe that contraband or evidence is located in a particular place.

(Citations and punctuation omitted.) Eaton v. State, 210 Ga. App. 273, 274 (1) (435 SE2d 756) (1993).

[TJhere is a sufficient showing of credibility and thus probability of truthfulness when the affiant can state to the magistrate that his investigation shows that the informant is indeed a law-abiding citizen or the informant is personally known to the affiant to be a law-abiding citizen. To hold otherwise would be to exclude the word of all reputable, law-abiding eyewitness informants simply because they are unknown to the police, or have no reputation other than a good one.

Miller v. State, 155 Ga. App. 399, 400 (1) (A) (270 SE2d 822) (1980). This type of “concerned citizen,” who anonymously provides information to police, is “afforded a preferred status insofar as testing the credibility of his information.” (Citation and punctuation omitted.) Dearing v. State, 233 Ga. App. at 631.

However, before an anonymous tipster can be elevated to the status of concerned citizen, thereby gaining entitlement to the preferred status regarding credibility concomitant with that title, there must be placed before the magistrate facts from which it can be concluded that the anonymous tipster is, in fact, a concerned citizen.

(Citation and punctuation omitted.) Davis v. State, 214 Ga. App. 36, 37 (447 SE2d 68) (1994).

(a) As an initial matter, although the State contends that it is undisputed that It and Source A were concerned citizens because the defendant failed to present any evidence to show that either person was unreliable, this argument ignores the fact that the defendant does not know the identity of either person and, thus, was unable to directly challenge their reliability. Instead, the defendant can only assert that the facts provided to the magistrate in the affidavit were legally insufficient to demonstrate the unidentified sources’ reliability, which is precisely what Sutton is doing in this case.

(b) Turning to the trial court’s finding that It was a reliable source of information because he or she was a concerned citizen, the search warrant affidavit states as follows:

What “It” related to affiant is considered by your affiant to be truthful, reliable, and credible because affiant is unable to detect any motivation by “It” to falsify the information related to your affiant. Additionally, affiant has learned that “It” is a mature person firmly established and with significant connections in “It’s” community. “It” is gainfully employed with no known criminal record. . . . “[I]t” felt compelled to forward the information to law enforcement regarding Sutton because of a genuine concern for the health and best welfare of Eric Sutton [,] as well as out of concern for the general public and the law enforcement community.

While making broad, conclusory statements regarding It’s credibility and motivations, however, the affidavit does not say whether It provided the information to the officer over the phone or in person; whether the officer confirmed that It was, in fact, the person he or she claimed to be; whether the officer’s conclusions that It was “mature” and employed with no criminal record and no motivation to lie about the defendant was based upon his independent confirmation of those facts or whether he simply relied on It’s statements to him; or whether It had previously provided reliable information to the officer or other officers regarding criminal activity by other individuals.

Sutton argues that, given these factual omissions, the cases that the trial court and the State have cited in support of a finding that It was a concerned citizen are clearly distinguishable from the instant case. We agree.

For example, in Manzione v. State, 312 Ga. App. 638, 638-641 (719 SE2d 533) (2011), and James v. State, 312 Ga. App. 130, 133-134 (a) (717 SE2d 713) (2011), the informants were employees of internet service providers who reported information concerning the distribution of child pornography pursuant to their statutory duty to do so, and the service provider identified the specific internet address from which the images originated. In Glass v. State, 304 Ga. App. 414, 414-417 (1) (a) (696 SE2d 140) (2010), the informant, a housekeeper for a hotel, had entered a hotel room and observed a large quantity of marijuana and other drugs in plain sight on the desk and television. The housekeeper immediately reported her observation to her supervisor, who notified the police. Id. The officer who completed the warrant affidavit interviewed the housekeeper in person and identified her by name in the affidavit. Id.

Further, in Price v. State, 297 Ga. App. at 502-504, the officer who obtained the search warrant actually met with an informant who was a medical professional with training in drug recognition, who had personally observed illegal drugs in the defendant’s house, and who had seen the defendant selling drugs. Id. In addition, before applying for the warrant, the officer had investigated the defendant’s alleged drug trafficking for two months, had met with two other confidential informants who corroborated the other information, and had spoken to several individuals who had observed unusual amounts of traffic that would come and go from the defendant’s home for short periods of time. Id. And, according to the affidavit in Dearing v. State, 233 Ga. App. at 631-632, the concerned citizen had personally observed a quantity of white powder represented by the defendant and another suspect to be amphetamine. Finally, in State v. Davis, 217 Ga. App. at 226, the informant knew the defendant, knew that the defendant sold marijuana from his home, and had been in the defendant’s house within the previous week and observed 30 to 35 marijuana plants growing. Id. In addition, the officer who applied for the search warrant had received corroborating information from another police officer. Id.

In contrast, the facts of the instant case are comparable to those in the following cases, wherein either this Court or the Supreme Court of Georgia found that the State failed to show that the informant was a concerned citizen. In Harper v. State, 283 Ga. at 105-106 (2), a police officer told another officer, the affiant, that he had received a call from an anonymous third party who reported that his relative, the defendant, had admitted to committing a crime. Id. In his search warrant affidavit, the affiant referred to the third party informant as a “concerned citizen.” Id. at 105 (2). According to the Supreme Court,

[t]he defect in the affidavit is that it presents the third party informant as being a family member, a truthful person, and someone without a motive to lie when the person who spoke to the informant had absolutely no way of knowing to whom he was speaking. In this case, unlike other cases where an anonymous tipster’s information has been corroborated, the information contained in the affidavit failed to provide any reason under the totality of the circumstances known to officers to believe that the information was from a credible source.

(Citations omitted; emphasis supplied.) Id. at 105-106 (2). Thus, the trial court erred in finding that the warrant was supported by probable cause. Id. at 106 (2).

Further, in Davis v. State, 214 Ga. App. at 37, this Court ruled as follows:

The affiant did not actually speak to the informant. The GBI agent who relayed the information to the affiant had never before received information from the informant. Although the GBI agent told the affiant that the informant displayed a truthful demeanor, no factual basis was given for this conclusion. The affidavit does not indicate how the informant contacted the agent or whether the agent even observed the informant in person. The informant was merely an anonymous tipster, not entitled to preferred status regarding the credibility of his information. The complete lack of information about the informant relegated the information he supplied to the status of rumor. Moreover, the anonymous tip is unreliable because the independent investigation done by the police in an effort to corroborate it was insufficient; the police corroborated only that the house was located where the tipster said it was.

(Citation omitted; emphasis supplied.)

Consequently, we conclude that, because of the complete lack of information about either It or Source A, the affidavit was legally insufficient to demonstrate that either was a concerned citizen. Harper v. State, 283 Ga. at 105-106 (2); Davis v. State, 214 Ga. App. at 37; Eaton v. State, 210 Ga. App. at 275 (1). Instead, they were merely anonymous tipsters, which “relegated the information they supplied to the status of rumor.” Id.

(c) However, even if the trial court erred in concluding that It was a concerned citizen entitled to a presumption of credibility, the hearsay information It provided to the officer could still support the issuance of the search warrant if the affidavit showed that the officer had sufficiently corroborated the information through further investigation. Johnson v. State, 265 Ga. App. 777, 780 (2) (595 SE2d 625) (2004); see also Manzione v. State, 312 Ga. App. at 641 (a) (the credibility of an anonymous source or person of unknown reliability must be independently corroborated).

Hearsay and even hearsay upon hearsay may be sufficient to furnish the basis for the issuance of a valid warrant if the magistrate is informed of some of the underlying circumstances supporting the affiant’s underlying conclusions and his belief that the informant was credible or his information reliable. There must be a substantial basis for crediting such hearsay.

(Citation and punctuation omitted.) Cochran v. State, 281 Ga. 4, 5-6 (635 SE2d 701) (2006). Thus, “[a] deficiency created by the fact that the reliability of either source has not been established can be corrected by the corroboration of the information, thereby providing a substantial basis for finding probable cause.” (Citation omitted.) Wood v. State, 214 Ga. App. 848, 849 (1) (449 SE2d 308) (1994). However, “for the corroboration to be meaningful, the [corroborating] information must include a range of details relating to future actions of third parties not easily predicted or similar information not available to the general public.” (Citations and punctuation omitted; emphasis supplied.) Evans v. State, 263 Ga. App. 572, 575 (2) (b) (588 SE2d 764) (2003). See also St. Fleur v. State, 286 Ga. App. 564, 566 (1) (649 SE2d 817) (2007) (accord); Shivers v. State, 258 Ga. App. 253,255 (573 SE2d 494) (2002) (accord).

As shown above, it is undisputed that It had no direct relationship with the defendant, and there is nothing in the affidavit (or in the record) to show that It had ever personally observed the drugs or the defendant using or selling drugs. Instead, the inculpatory allegations that supported the search warrant were all based upon statements made by Source A to It, who then reported them to the officer. There is nothing in the officer’s affidavit, however, that sufficiently identifies Source A so that the officer could independently corroborate Source A’s statements to It, had he attempted to do so. Further, other than confirming It’s statements that the defendant lived at a certain address, drove a certain type of truck, and once owned a certain business, the officer did not conduct any investigation to confirm or corroborate the inculpatory allegations of either It or Source A, such as performing surveillance of the defendant’s home or conducting a controlled purchase of marijuana.

Thus, the circumstances of this case are very similar to those in Wood v. State, 214 Ga. App. at 849 (1), wherein this Court held as follows:

The affiant... did nothing more to corroborate the information of the reliable informant than to confirm Wood’s address, the make of her car and her hair color. Nothing whatsoever was done to corroborate the unidentified third-party’s information. These steps, which merely verified Wood’s identity but did not tie her to the commission of any crime, do not constitute corroboration so as to cure the deficiency created by the affiant’s reliance on information from a source whose reliability had not been established. No matter how truthful or sincere the information from the reliable source, the crucial question is the unidentified third-party’s reliability, and that is simply not established in the affidavit. Our decisions applying the totality of circumstances analysis have consistently recognized the value of corroboration of details of an informant’s tip by independent police work. In this case, the independent investigation done by the police in an effort to corroborate the information was insufficient.... [Thus, we find] that the uncorroborated statement of an unnamed third-party source, as filtered through a reliable informant to a police affiant, did not give rise to probable cause sufficient to support the issuance of a search warrant.

(Citations and punctuation omitted; emphasis supplied.)

Accordingly, as in Wood, we conclude that the officer’s failure to independently corroborate any of the information provided by Source A (an unidentified third party) to It (an anonymous tipster) renders his affidavit insufficient to establish the reliability of either source. Wood v. State, 214 Ga. App. at 849 (1). Absent a showing that the information in the affidavit was reliable, the trial court erred in denying Sutton’s motion to suppress. Id.

Decided January 25, 2013.

Fox, Chandler, Homans, Hicks & McKinnon, Graham McKinnon TV, for appellant.

Lee Darragh, District Attorney, Lindsay H. Burton, Alison W. Toller, Assistant District Attorneys, for appellee.

2. Sutton also contends that the trial court erred in denying his motion to suppress because the affidavit did not show probable cause to believe that a search of his home would produce evidence of possession, use, and distribution of marijuana. Given our decision in Division 1, supra, this alleged error is moot. Sullivan v. State, 308 Ga. App. 114, 116 (2) (706 SE2d 618) (2011).

Judgment reversed.

Phipps, P. J., and Dillard, J., concur.

       This Court granted Sutton’s application for interlocutory appeal, Case No. A12I0154.

       With the exception of a few immaterial punctuation changes, the statement has not been edited other than as shown by brackets.

       By agreement of the parties, the trial court did not conduct a hearing on the motion to suppress. However, the transcript of the commitment hearing in the magistrate court is included in the record.

       The trial court noted that it was unnecessary under the circumstances and the applicable authority for it to decide whether “Source A” was also a “concerned citizen.”

       See Harper v. State, 283 Ga. 102, 105-106 (2) (657 SE2d 213) (2008); Davis v. State, 214 Ga. App. at 37 (The affiant did not actually speak to the informant, and the GBI agent who relayed the information to the affiant had never before received information from the informant. The affidavit does not indicate how the informant contacted the agent or whether the agent even observed the informant in person.).

       See Harper v. State, 283 Ga. at 105-106 (2); Eaton v. State, 210 Ga. App. at 275 (1) (Although the officer described the informant in his affidavit as a “concerned citizen,” the officer later admitted that he did not know the identity of the informant.).

       See Eaton v. State, 210 Ga. App. at 275 (1) (The affiant admitted on cross-examination at the motion to suppress hearing that the only basis for his characterization of the informant as a concerned citizen was “what the informant himself told the officer on the phone.”).

        See Davis v. State, 214 Ga. App. at 37; cf. Bryant v. State, 288 Ga. at 893 (13) (a) (According to the affiant, “the informant had provided other information involving Bryant’s case that he had confirmed as truthful. ... [As the affiant] was the lead investigator on Bryant’s case, this is some indication of the informant’s reliability[.]”).

       See former 42 USC § 13032 (since repealed and recodified as 18 USC § 2258A).

       In Manzione, this Court concluded that,
      when a corporate provider of web-based services . . . makes a report of criminal activity pursuant to its statutory reporting obligation set forth in 42 U.S.C. § 13032 (b) (1), it is the equivalent of one made from a law-abiding concerned citizen, and therefore is afforded a preferred status insofar as testing the credibility of the information.
      (Punctuation and footnote omitted.) Manzione v. State, 312 Ga. App. at 641.

       See also Gary v. State, 262 Ga. 573, 577 (422 SE2d 426) (1992) (The State presented no facts to the magistrate to support the affiant’s conclusion that the informant was truthful.); Eaton v. State, 210 Ga. App. at 275.

       Cf. Evans v. State, 263 Ga. App. at 576 (2) (b) (Information initially provided to the affiant by an unidentified informant was sufficiently corroborated by independent statements against interest by the informant and by surveillance by DEAagents of the apartment for which the search warrant was later sought.); Munson v. State, 211 Ga. App. 80, 82-83 (438 SE2d 123) (1993) (The affiant obtained information from an informant, who, in turn, had received the information from an unidentified third party. Although the reliability of neither source was established, the affiant corrected the deficiency by conducting an independent investigation of the information and by involving another law enforcement agency, which further investigated and confirmed that marijuana was growing at the location indicated by the informant.).


source: Caselaw Access Project

author: Ellington, Chief Judge.

license: Public Domain

text:
    A12A2399.
    CARTER v. THE STATE.
    (737 SE2d 714)
   Ellington, Chief Judge.

Following a bench trial in Bulloch County State Court, Derek B. Carter was found guilty of possessing marijuana with intent to distribute, OCGA § 16-13-30 (j); possessing marijuana with intent to distribute within 1,000 feet of a school, OCGA § 16-13-32.4 (a); possessing a firearm during the commission ofa crime, OCGA § 16-11-106 (b); and possessing a firearm on school grounds, OCGA § 16-11-127.1. Carter filed a motion for new trial, which the trial court denied. Carter appeals this ruling, challenging the denial of his motion to suppress and the sufficiency of the evidence. For the following reasons, we affirm in part and reverse in part.

Viewed favorably to the trial court’s findings, the evidence shows that Georgia Southern University police were investigating alleged marijuana sales, which were taking place from an on-campus apartment. A reliable confidential informant told the police that someone named “Taylor” was selling marijuana. The informant approached Taylor, who had no marijuana. Taylor offered to take the informant to a place where marijuana could be purchased. According to Taylor, he always purchased marijuana “from these guys.”

Through the informant, the police arranged two controlled buys. On both occasions, Taylor took the informant to an apartment in the University Villas. Taylor went inside briefly before returning with marijuana. The sales were made by Rahsaan Thompson, one of the residents of the apartment.

Following the sales, an investigator with the police department obtained a warrant for the apartment. The investigator testified that the apartment has a common area with living space and a kitchen and four separate bedrooms, labeled A through D, with locking doors. There were two bathrooms in the apartment, each with access from two of the bedrooms. Although Thompson was the only occupant involved in the sale of marijuana, the police obtained a warrant to search the entire apartment. While searching bedroom B, which was Carter’s bedroom, police found, on a desk, a glass jar on a desk containing marijuana, digital scales, and plastic sandwich bags. In a small closet, police discovered a shoe box with marijuana in it and a laundry hamper containing a .22 caliber revolver.

Carter moved to suppress the evidence seized from his room, arguing that the search warrant for the entire apartment was overly broad. Following a bench trial at which the suppression issue was considered, the trial court denied the motion and found Carter guilty.

1. On appeal, Carter contends that the trial court erred in denying the motion to suppress. In reviewing a trial court’s ruling on a motion to suppress, we construe the evidence in a light favorable to upholding the trial court’s finding and judgment. See Rowe v. State, 314 Ga. App. 747, 748 (725 SE2d 861) (2012). We will not disturb the trial court’s ruling if there is any evidence to support it, and we accept the trial court’s credibility determinations unless clearly erroneous. See id. “The trial court’s application of law to undisputed facts, however, is subject to de novo review.” (Punctuation omitted.) Id.

According to Carter, the search warrant at issue was invalid because it was for a multiple-occupancy dwelling, but failed to describe the particular subunit to be searched.

[T]he general rule is that a search warrant for an apartment house or hotel or other multiple-occupancy building will usually be held invalid if it fails to describe the particular subunit to be searched with sufficient definiteness to preclude a search of one or more subunits indiscriminately. There are, however, exceptions to this general rule. The warrant of a multi-unit structure will be valid where (1) there is probable cause to search each unit; (2) the targets of the investigation have access to the entire structure; or (3) the officers reasonably believed that the premises had only a single unit.

(Citation and punctuation omitted.) Conrad v. State, 316 Ga. App. 146, 148-149 (1) (730 SE2d 7) (2012). Here, the magistrate court was authorized to find probable cause for the issuance of the warrant.

In determining whether probable cause supports the issuance of a search warrant, the issuing magistrate “must evaluate all the circumstances set forth in the affidavit before him or her and make a practical, common-sense decision whether there is a fair probability that evidence of a crime will be found in a particular place.” (Punctuation omitted.) Fletcher v. State, 284 Ga. 653, 655 (3) (670 SE2d 411) (2008). On review, an appellate court “is limited to determining if the magistrate had a ‘substantial basis’ for concluding that probable cause existed to issue the search warrant, and must afford substantial deference to the magistrate’s decision.” (Punctuation omitted.) Id. at 655-656.

According to the affidavit presented to the magistrate, a reliable confidential informant had made two controlled buys of marijuana during the past forty-eight hours. Each time, the informant went with Taylor to the same apartment, and Taylor returned with marijuana. During the buy, police were conducting surveillance of the apartment. Taylor told the police that he always purchased marijuana “from ‘these guys’ because they always have the best.” Based upon this information, the magistrate was authorized to conclude that more than one resident of the apartment was selling marijuana and that there was a substantial basis for believing that evidence of the crime could be found throughout the apartment. As probable cause existed for the issuance of the warrant, the trial court did not err in denying Carter’s motion to suppress. See Conrad v. State, 316 Ga. App. at 150-151 (1).

2. Carter contends that the evidence was insufficient to support his convictions for possessing a firearm during the commission of a felony and carrying a weapon on school grounds. In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict. See Parramore v. State, 277 Ga. App. 372 (626 SE2d 567) (2006). We neither weigh the evidence nor assess witness credibility. See id. Evidence is sufficient if a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Davis v. State, 287 Ga. App. 783, 784 (1) (653 SE2d 107) (2007).

(a) Pursuant to OCGA § 16-11-106 (b), it is a felony to “have on or within arm’s reach of his or her person a firearm . . . during the commission of, or the attempt to commit... [a]ny crime involving the possession, manufacture... or possession with intent to distribute... marijuana.”

[W]hen a defendant is charged under this statute, the evidence is sufficient to sustain a conviction when it is shown at trial that a firearm was within arm’s reach of the defendant at any point during the commission of the crime, thus giving the defendant immediate access to the weapon.

(Citation and punctuation omitted.) Davenport v. State, 308 Ga. App. 140, 148 (1) (c) (706 SE2d 757) (2011).

Although circumstantial, the evidence is sufficient to show that the weapon was within arm’s reach of Carter during the commission of a crime. The gun was in a laundry hamper in a small closet. Although the marijuana was in a shoe box on a shelf, the investigator testified that the shelf and hamper were in close proximity, “[a] matter of maybe a foot [or] two feet.” Under these circumstances, the trial court could find that, given the close proximity, Carter passed within reach of the handgun while handling the marijuana. See Gibson v. State, 223 Ga. App. 103 (1) (476 SE2d 863) (1996). Accordingly, we find no basis for reversing this conviction.

(b) Under OCGA § 16-11-127.1, it is “unlawful for any person to carry to or to possess or have under such person’s control while... [on] school property . . . any weapon.” According to Carter, there is insufficient evidence that he possessed the gun found in his laundry hamper.

“A person who, though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.” (Punctuation omitted.) Peppers v. State, 315 Ga. App. 770, 772 (728 SE2d 286) (2012). Constructive possession may be established by circumstantial evidence. See Murray v. State, 309 Ga. App. 828, 830 (711 SE2d 387) (2011). “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.” (Punctuation omitted.) Id.

Here, there was evidence found in Carter’s bedroom that linked him to the enterprise of selling marijuana. Carter also knew that there was a gun in the apartment, and police found it in Carter’s closet along with a shoe box containing marijuana. This evidence was sufficient for the trial court to conclude that Carter had the power and intention to exercise control over the gun. See Crawford v. State, 233 Ga. App. 323, 324 (1) (b) (504 SE2d 19) (1998). Although Carter claimed he did not know the gun was in his laundry hamper, Carter’s credibility on this issue was for the factfinder to determine. See id.

Decided January 25, 2013

Hube & Tucker, Matthew K. Hube, for appellant.

Richard A. Mallard, District Attorney, JosephB. Black, Assistant District Attorney, for appellee.

3. Finally, Carter argues that the evidence is insufficient to sustain his conviction for possessing marijuana with intent to distribute within 1,000 feet of a school. Specifically, he asserts that his college dorm room does not fall within the ambit of OCGA § 16-13-32.4, which criminalizes certain drug offenses “in, on, or within 1,000 feet of any real property owned by or leased to any public or private elementary school, secondary school, or school board used for elementary or secondary education.” See OCGA § 16-13-32.4 (a). '

“[C]riminal statutes are construed strictly against the State, they must be read according to the natural and obvious import of their language, and their operation should not be limited or extended by application of subtle and forced interpretations.” (Punctuation omitted.) Barber v. State, 316 Ga. App. 701, 703, n. 5 (730 SE2d 176) (2012). As noted by Carter, the statute at issue does not apply to colleges or universities. Compare OCGA § 16-11-127.1 (a) (1) (statute criminalizing weapons in school safety zones applies to elementary or secondary schools, or the campus of any technical schools, vocational schools, colleges or universities). As it is clear that the crime took place on a university campus, OCGA § 16-13-32.4 has no application. It follows that Carter’s conviction for this crime must be reversed.

Judgment affirmed in part and reversed in part.

Phipps, P. J., and Dillard, J., concur.

        Hickman v. State, 311 Ga. App. 544, 545 (716 SE2d 597) (2011).

       The investigator who swore out the warrant was aware of the apartment’s configuration before obtaining the warrant.

       Carter gave a statement to police in which he said that Thompson had a gun, but that he did not know the gun was in his room.


author: MILLER, Presiding Judge.

text:
    A12A2179.
    TALLEY v. THE STATE.
    (738 SE2d 89)
   MILLER, Presiding Judge.

Earvin Talley challenges the denial of his post-sentencing motion to withdraw his guilty plea to the sale of cocaine (OCGA § 16-13-30 (b)). Talley contends that the trial court failed to make an adequate inquiry into his claims of ineffective assistance of counsel. For the reasons that follow, we affirm.

Once a sentence has been entered, a guilty plea may only be withdrawn to correct a manifest injustice, and a trial court’s refusal to allow withdrawal will not be disturbed on appeal absent a manifest abuse of discretion. The trial court is the final arbiter of all factual disputes raised by the evidence. If evidence supports the trial court’s findings, we must affirm.

(Citations and punctuation omitted.) Arnold v. State, 315 Ga. App. 831 (728 SE2d 342) (2012).

Here, the record shows that Talley was charged with sale of cocaine in 2009. Talley was appointed an attorney to represent him during criminal proceedings.

One day prior to Talley’s scheduled trial in March 2011, Talley told the trial court that he wanted to discharge his appointed attorney. Talley stated that he felt that appointed counsel was not representing him fairly, but he did not elaborate. The trial court informed Talley that, while he had the option to discharge his attorney, a new attorney would not be appointed for him and he would still have to proceed to trial the next day. The trial court denied Talley’s request for a continuance, stating that the case had been pending for approximately two years, and that the case would not be delayed any further since Talley had plenty of time to hire another attorney prior to that point. The trial court also informed Talley that it was unlikely he would be able to retain an attorney one day prior to trial and advised him of the dangers of proceeding without counsel.

On the day of Talley’s trial, Talley again stated that he wanted a new attorney. The trial court indicated that Talley’s request appeared to be an attempt to delay his trial by asking for new counsel. The trial court again informed Talley that the trial would proceed as scheduled, although Talley was not required to use appointed counsel. The trial court also stated that it would not appoint another attorney or continue the trial to allow him to retain private counsel. Talley stated that he understood and elected to proceed to trial with appointed counsel. Appointed counsel then asked for a brief recess to discuss with Talley the possibility that a co-defendant would testify at his trial.

Following the recess, Talley entered a plea of guilty. Talley testified under oath in open court that he was satisfied with his counsel’s services. Talley further testified that he understood the charge in the indictment, the rights that he was waiving by entering the guilty plea, the sentencing range for the charged offense, and the conditions of probation. Talley affirmed that no promises or threats had been made in exchange for his guilty plea, and that he entered his plea freely and voluntarily. After the State provided a factual basis for the plea, the trial court accepted Talley’s guilty plea and sentenced him to fifteen years with ten to serve in prison.

The next day, Talley filed a pro se motion to withdraw his guilty plea, contending that he had expressed his dissatisfaction with his attorney and felt coerced to proceed with appointed counsel. Following an evidentiary hearing, the trial court denied Talley’s motion.

Talley contends that the trial court erred in denying his motion to withdraw his guilty plea because the trial court failed to make an adequate inquiry into his claims of ineffective assistance of counsel. We disagree.

Where . . . the defendant bases his motion to withdraw on an ineffective assistance of counsel claim, he bears the burden of showing that his attorney’s performance was deficient and that, but for counsel’s errors, a reasonable probability exists that he would have insisted on a trial. A court need not address both the deficient performance and prejudice prongs of this test if the showing on one prong is insufficient. In reviewing a lower court’s determination of a claim of ineffective assistance of counsel, we give deference to the trial court’s factual findings, which are upheld on appeal unless clearly erroneous; however, we review the lower court’s legal conclusions de novo.

(Citation and punctuation omitted.) Williams v. State, 307 Ga. App. 780 (706 SE2d 82) (2011).

Here, the record shows that the trial court made the requisite factual inquiry into Talley’s claims of ineffective assistance of counsel. As to Talley’s first claim that he was dissatisfied with his appointed counsel, Talley stated that he and his attorney disagreed about trial strategy. The trial court asked Talley to be more specific, and Talley responded that appointed counsel was going to allow his co-defendant to testify against him at trial. Talley also stated that appointed counsel should not have asked him to identify his co-defendant while they were waiting for a pre-trial hearing. Talley did not call appointed counsel to testify at the motion to withdraw his guilty plea. Therefore, “we presume [counsel’s] decision[s] [were] tactical. And because [Talley] has presented no other evidence to the contrary, he has failed to carry his burden of proving ineffective assistance of counsel.” (Footnotes omitted.) Taylor v. State, 248 Ga. App. 715, 717 (5) (548 SE2d 414) (2001).

Decided January 28, 2013.

Jimmonique R. S. Rodgers, for appellant.

Peter J. Skandalakis, District Attorney, Robert N. Peterkin, Assistant District Attorney, for appellee.

As to Talley’s second claim that he felt pressured to plead guilty because he was afraid of proceeding to trial with appointed counsel, the trial court specifically made inquiry into his claim. Talley stated that appointed counsel filed a factually incorrect motion and did not represent him fairly. Talley previously testified under oath during the plea colloquy, however, that he was satisfied with appointed counsel’s services, and that he did not feel pressured to enter the guilty plea. “Moreover, pressures such as a lack of faith in one’s trial counsel do not necessarily give rise to the manifest injustice required to withdraw a plea after sentencing.” (Footnote omitted.) Frost v. State, 286 Ga. App. 694, 697 (1) (649 SE2d 878) (2007). Consequently, the trial court made a proper inquiry into Talley’s claims, and it did not abuse its discretion in denying Talley’s motion to withdraw his plea.

Judgment affirmed.

Ray and Branch, JJ., concur.


author: McFADDEN, Judge.

text:
    A12A1839.
    PARSONS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (737 SE2d 718)
   McFADDEN, Judge.

Edith Parsons’s son, Joshua Billups, was killed in a single-car accident. He owned the car but was riding as a passenger. Parsons brought a wrongful death action against the person who was driving. In connection with that action, she claimed uninsured/underinsured motorist (UM) benefits under a policy State Farm Mutual Automobile Insurance Company had issued to Billups’s aunt, Lorraine Bolden.

The parties agree that the availability of UM coverage under the policy turns on whether, at the time of the accident, Billups resided primarily with Bolden. For the reasons explained below, there is no coverage if he resided primarily with her, but coverage is available if bis aunt’s home was Billups’s secondary residence. The trial court granted State Farm’s motion for summary judgment. But because a genuine issue exists as to this material fact, State Farm is not entitled to summary judgment, and we reverse.

Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). “On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the nonmovant.” (Citation omitted.) Spectera, Inc. v. Wilson, 317 Ga. App. 64, 66 (730 SE2d 699) (2012).

So viewed, the evidence shows that Billups owned the car involved in the accident, but at the time he was riding in the back seat and another person was driving his car. Billups, who was in his early twenties at the time of the accident, had two residences. He lived in an apartment with his cousin (the son of his aunt, Lorraine Bolden). He also maintained a bedroom at Bolden’s house. He had started living there several years earlier, when he moved to Georgia. Billups had a key to Bolden’s house, received mail there, sometimes slept and ate meals there, and performed household chores there.

Lorraine Bolden had uninsured/underinsured motorist insurance under a policy, which provided that State Farm “will pay damages for bodily injury ... an insured is legally entitled to collect from the . . . driver of an uninsured motor vehicle.” The policy excluded from the definition of “uninsured motor vehicle” a vehicle “owned by or furnished for the regular use of. . . any relative.”

Coverage extended to “any person entitled to recover damages because of bodily injury to an insured.” The policy defined “insured” to include a “relative” of the first person named on the declarations page (in this case, Lorraine Bolden).

Central to the analysis is the policy’s definition of “relative,” in particular its use in that definition of the word “primarily.” It defined “relative” to mean “a person related to [the named insured] or [that person’s] spouse by blood, marriage or adoption who resides primarily with [the named insured].” (Emphasis supplied.)

It is undisputed that Billups was an “insured” under Bolden’s UM policy, as he was a relative who resided with her. His status as an insured was not affected by State Farm’s attempt, in the policy definition of “relative,” to limit coverage to relatives who resided primarily with the named insured. A UM policy issued in Georgia must provide at least the degree of coverage set forth in OCGA § 33-7-11. See OCGA § 33-7-11 (a) (1). That Code section mandates coverage for relatives “while resident of the same household” — not just for those residing there primarily. OCGA § 33-7-11 (b) (1) (B).

But while a UM policy must provide at least the level of coverage set forth in OCGA § 33-7-11, it may provide greater coverage. See Walker v. United Svcs. Automobile Assn., 205 Ga. App. 693 (423 SE2d 299) (1992). And while the policy’s definition limiting “relatives” to those residing primarily with the named insured cannot reduce the coverage to less than what is mandated by statute, it can — and in this case does — broaden the coverage.

That definition affects whether Billups’s car was an “uninsured motor vehicle” under the policy. OCGA § 33-7-11 allows insurers to exclude from the definition of “uninsured motor vehicle” vehicles owned by relatives residing with the named insured. OCGA § 33-7-11 (b) (1) (D). The State Farm policy, however, excludes from the definition of “uninsured motor vehicle” vehicles owned by relatives residing primarily with the named insured. Consequently, under the policy, vehicles owned by relatives residing only secondarily with the named insured are “uninsured motor vehicles” under the policy terms. See generally Baldwin v. State Farm Fire & Cas. Co., 264 Ga. App. 229, 230 (1) (590 SE2d 206) (2003) (acknowledging that insured could have more than one residence).

So Billups was an “insured,” because he was a relative residing in Bolden’s home — regardless whether her home was his primary or secondary residence. But the question whether her home was his primary or secondary residence is dispositive of whether his car was an “uninsured motor vehicle[ ]” under the policy terms. His car is covered if her home was his secondary residence, but excluded from coverage if Bolden’s home was Billups’s primary residence.

There is no dispute in this case that Billups resided at least part of the time with Bolden. The question is where he primarily resided. State Farm emphasizes the evidence showing Billups’s ties to his aunt’s house, such as the amount of time he spent there in activities such as eating, sleeping or doing chores, and the facts that he maintained a bedroom and received mail at the house. This evidence certainly could support a factfinder’s conclusion that Billups resided primarily with his aunt. But contrary to State Farm’s assertion, there was also evidence to support a finding that, at the time of the accident, Billups primarily resided in the apartment with his cousin, including his mother’s deposition testimony that he lived in the apartment and Bolden’s deposition testimony that, although her son (Billups’s cousin) lived in the apartment, he too ate meals, did chores, received mail, kept a bedroom, and sometimes slept at her house.

Decided January 30, 2013.

Katz, Stepp, Wright & Fleming, Robert N. Katz, Briant G. Mildenhall, for appellant.

Waldon, Adelman, Castilla, Hiestand & Prout, Daniel C. Prout, Jr., Denise D. Ploying, for appellee.

A person’s residence is a “mixed question[ ] of law and fact and [is] ordinarily one for a jury to determine.” (Citation and punctuation omitted.) Baldwin, 264 Ga. App. at 230 (1). Parsons has pointed to evidence creating a genuine issue of fact about Billups’s primary residence, which is material to determining whether his car was an “uninsured motor vehicle” under the State Farm policy and, accordingly, whether the policy’s UM coverage applied. For this reason, summary judgment was not appropriate.

Judgment reversed.

Barnes, P. J., and McMillian, J., concur.


author: Boggs, Judge.

text:
    A12A2288.
    HAMNER v. TURPEN.
    (737 SE2d 721)
   Boggs, Judge.

James Turpén filed a motion for contempt against his ex-wife, Margaret Hamner, alleging that she violated both the terms of the parties’ divorce decree and a consent order for custodial modification. Less than a month later, Hamner filed a complaint against Turpén for modification of custody and visitation. Both actions were filed in Gwinnett County Superior Court and later consolidated. At the hearing on these matters, Turpen’s counsel moved to transfer venue to Rabun County. The trial court granted the motion, and Hamner now appeals from that ruling. Because Turpén waived any defense of improper venue, the trial court erred in granting the motion, and we reverse.

The record reveals that the 2002 divorce decree, which incorporated the parties’ settlement agreement, awarded Turpén and Hamner joint legal and physical custody of their minor child. On March 17, 2010, Turpén filed a pro se motion for contempt and notice of mediation against Hamner in the Gwinnett County Superior Court. Three weeks later, Hamner filed a complaint for modification of custody and visitation. Her complaint, also filed in Gwinnett County, alleged that she and the minor child were residents of Gwinnett County and that Turpén “resides in Okaloosa, Florida.” Hamner nevertheless served Turpén at a residence in Rabun County. Turpén filed a pro se answer to the complaint, in which he simply denied the allegation that he resided in Florida. On June 23, 2010, the Gwinnett County Superior Court granted Hamner’s motion to consolidate the two actions. On October 4, 2010, counsel entered an appearance on Turpen’s behalf.

The trial court held a hearing on the consolidated matters on April 22, 2011. At the outset of the hearing, Turpen’s counsel alleged for the first time that venue was improper in Gwinnett County and moved to transfer venue to Rabun County, where he claimed he had resided during the pendency of the action. Turpén stated during the hearing that he had lived in Florida “on and off,” and that he had “dual residences,” one in Rabun County and one in the state of Florida. He explained further that he had been living regularly in Rabun County since March 25, 2009, and that he had returned to live in Florida in October 2010.

Following the hearing, Turpén filed a brief in support of his oral motion to transfer the action, and Hamner filed a brief in opposition arguing that Turpén waived any defense of improper venue. On May 2, 2012, the trial court granted Turpen’s motion to transfer venue to Rabun County.

On appeal, Hamner contends that the trial court was without authority to grant the motion to transfer because Turpén waived any defense of improper venue. We agree. In considering the trial court’s ruling on the motion to transfer venue, we “affirm the trial court’s findings on disputed factual questions relating to venue if there is any evidence to support them. But we review de novo the trial court’s application of the law to undisputed facts.” (Citations omitted.) HD Supply, Inc. v. Garger, 299 Ga. App. 751 (683 SE2d 671) (2009).

Improper venue is a defense that must be asserted in a responsive pleading or by motion in writing “before or at the time of pleading.” OCGA § 9-11-12 (b); see Gravley u. State of Ga., 285 Ga. App. 691, 692-693 (1) (647 SE2d 372) (2007). And “improper venue clearly may be waived, even in child custody cases.” (Citations omitted.) Daust v. Daust, 204 Ga. App. 29, 31 (418 SE2d 409) (1992); see also Houston v. Brown, 212 Ga. App. 834, 834-835 (443 SE2d 3) (1994) (waiver of venue defense permitted despite strong language of OCGA § 19-9-23 governing actions to change legal custody). Indeed OCGA § 9-11-12 (h) (1) (B) provides that the defense of improper venue is waived if neither made by motion nor included in a responsive pleading, as originally filed.

Here, Turpén did not raise the defense of improper venue until the hearing on his contempt action and Hamner’s motion to modify custody. Contrary to Turpen’s argument on appeal, his pro se general denial to Hamner’s allegation that he resided in Florida is insufficient to raise improper venue as a defense. See, e.g., Orkin Extermination Co. v. Morrison, 187 Ga. App. 780, 782 (3) (371 SE2d 407) (1988) (general denial to allegation of venue insufficient). And while Turpén argues that as a pro se defendant he is held to less stringent pleading standards, he provided nothing in his answer that could be interpreted as a claim that the action should be heard in Rabun County where he resided. Compare Coastal Transport v. Tillery, 270 Ga. App. 135, 136 (1) (605 SE2d 865) (2004) (answer stating as affirmative defense that venue is improper without naming proper county was sufficient to raise issue concerning venue).

Decided January 30, 2013.

Stern & Edlin, Gary P. Graham, Deborah M. Lubin, for appellant.

Balch & Bingham, Joshua M. Moore, Michael J. Bowers, for appellee.

Because Turpén failed to raise a defense of improper venue either in his answer or a motion to dismiss, the trial court was without authority to grant his motion to transfer the actions to Rabun County. See In the Interest of H. D. M., 241 Ga. App. 805, 808 (3) (527 SE2d 633) (2000) (objection to venue waived where not raised until terminationhearing); Ganny v. Ganny, 238 Ga. App. 123, 125 (2) (518 SE2d 148) (1999) (objection to venue waived where not raised until closing argument); Houston, supra, 212 Ga. App. at 834-835; accord Richardson v. Gilbert, 319 Ga. App. 72 (733 SE2d 783) (2012) (trial court erred in granting motion to transfer where party waived venue defenses).

Judgment reversed.

Doyle, R J., and Andrews, P. J., concur.


author: Miller, Presiding Judge.

text:
    A12A2432.
    HOWARD v. THE STATE.
    (737 SE2d 722)
   Miller, Presiding Judge.

Following a jury trial, Freddie Joe Howard was convicted of child molestation (OCGA § 16-6-4 (a) (1)). Howard filed a motion for new trial, which the trial court denied. Howard appeals, contending that the evidence was insufficient to sustain his conviction. For the reasons that follow, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and the defendant no longer enjoys a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(Citation omitted.) Stepho v. State, 312 Ga. App. 495, 496 (718 SE2d 852) (2011).

So viewed, the trial evidence shows that in July 2009, the 11-year-old victim was visiting Howard, her grandfather, at his residence. At some point, the victim went upstairs to play a computer game with Howard. The victim sat on Howard’s lap, and as she played the game, Howard started rubbing her leg with his hand. Howard then moved his hand under the victim’s shorts and touched her genital area. When the victim told Howard that she had to go to the bathroom, he moved his hand from underneath the victim’s underwear. Before Howard allowed the victim to leave the room, he threatened to hurt the victim if she did not keep the incident a secret.

The victim subsequently told her mother that her grandfather had touched her vagina. The mother reported the sexual abuse to law enforcement authorities. Howard was subsequently arrested and convicted of child molestation.

In his sole enumeration of error, Howard contends that the evidence was insufficient to sustain his conviction for child molestation because the medical evidence was inconclusive and the victim’s testimony was not credible. We discern no error.

“A person commits the offense of child molestation when such person ... [d]oes 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[.]” OCGA § 16-6-4 (a) (1). The indictment in this case charged Howard with child molestation against the victim by “placing his hand against the genital area of [the victim]” with the intent to arouse his sexual desires.

Here, the victim testified that Howard rubbed his hand on the victim’s leg, put his hand under her shorts and underwear, and touched her genital area. Contrary to Howard’s claims, the uncorroborated testimony of a child victim is sufficient to support a conviction for child molestation. See Downer v. State, 310 Ga. App. 136, 137 (1) (712 SE2d 571) (2011); Stepho, supra, 312 Ga. App. at 497 (1). “The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8. While Howard challenges the credibility of the victim and cites to inconsistencies and conflicts in the evidence, “[a] jury is authorized to believe or disbelieve all or any part of the testimony of witnesses, and it serves as the arbiter of conflicts in the evidence before it.” (Citation and punctuation omitted.) Bray v. State, 294 Ga. App. 562, 563 (1) (669 SE2d 509) (2008). The jury was aware of any inconsistencies or conflicts in the evidence and chose to credit the victim’s versions of the events. Accordingly, we conclude that the evidence was sufficient to authorize the jury’s finding that Howard was guilty of the offense of child molestation.

Decided January 30, 2013.

Edward P. Dettmar, for appellant.

T. Joseph Campbell, District Attorney, Rosemary M. Greene, Assistant District Attorney, for appellee.

Judgment affirmed.

Ray and Branch, JJ., concur.

       Howard was also charged with aggravated sexual battery (OCGA § 16-6-22.2 (b)), but the jury found him not guilty on that count.


text:
    A11A0862.
    OGILVIE v. THE STATE.
    (737 SE2d 735)
    Decided January 31, 2013.

      Jackie G. Patterson, for appellant.

      Sherry Boston, Solicitor-General, Teri B. Walker, Kelly A. C. McMichael, Assistant Solicitors-General, Nicole D. Marchand, for appellee.
   Boggs, Judge.

In State v. Ogilvie, 292 Ga. 6 (734 SE2d 50) (2012), the Supreme Court reversed the judgment of this Court in Ogilvie v. State, 313 Ga. App. 305 (721 SE2d 549) (2011). We therefore vacate our opinion and adopt the judgment of the Supreme Court as the opinion of this court.

Judgment affirmed.

Dillard, P. J., and Branch, J., concur.


author: Ray, Judge.

text:
    A12A1740.
    CARTER v. THE STATE.
    (737 SE2d 724)
   Ray, Judge.

Following a jury trial, Bruce Brunell Carter was convicted of possession of cocaine in violation of the Georgia Controlled Substances Act. He contends that the trial court erred in denying his motion to suppress evidence seized pursuant to a search of his person. For the reasons that follow, we affirm.

In reviewing a trial court’s ruling denying a motion to suppress, the following three principles apply: First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. Because there was testimonial evidence in this case, we do not apply a de novo standard of review.

So viewed, the evidence adduced at the hearing on the motion to suppress shows that, on December 13, 2009, a Gwinnett County police officer was on patrol in an area known for having high levels of drug traffic and prostitution, and where the officer had previously made numerous arrests or picked up wanted persons. At approximately 7:30 p.m., after dark, he noticed Carter pacing back and forth near a dumpster behind a business that the officer believed to be closed. The officer thought that Carter might be casing the business, or waiting to do a drug deal. When the officer approached and asked Carter what he was doing, Carter said he was just hanging out. The officer then asked Carter if he had a weapon, and Carter said he had a Leatherman tool. The officer testified that he knew from experience that such tools generally have two or three folding knives in them. The officer asked if he could retrieve the Leatherman. Carter said yes and pointed to his pocket. When the officer pulled out the Leather-man, a baggie was pinched in its folding mechanism. The officer asked what was in the baggie, and Carter replied that it was probably crack cocaine. The officer field-tested the substance, which tested positive for cocaine.

In his sole enumeration of error, Carter asserts that the trial court erred in denying his motion to suppress evidence, arguing that the officer stopped and searched him without a particularized and objective basis for suspecting that he was engaged in criminal activity, and that the State did not meet its burden of proving the search was lawful pursuant to OCGA § 17-5-30 (b). We find no error.

“There are at least three types of police-citizen encounters: verbal communications that involve no coercion or detention; brief ‘stops’ or ‘seizures’ that must be accompanied by a reasonable suspicion; and ‘arrests,’ which can be supported only by probable cause.”

A first-tier encounter never intrudes upon any constitutionally protected interest since the purpose of the Fourth Amendment is not to eliminate all contact between police and citizens, but simply to prevent arbitrary and oppressive police interference with the privacy and personal security of individual citizens. On the other hand, a second-tier encounter may violate the Fourth Amendment if the officer briefly “stops” or “seizes” a citizen without reasonable suspicion. Reasonable suspicion exists when an officer has a particularized and objective basis for suspecting that a citizen is involved in criminal activity. Moreover, a “seizure” within the meaning of the Fourth Amendment only occurs when, in view of all the circumstances surrounding the incident, a reasonable person believes that he is not free to leave.

Carter contends that this was a second-tier stop, and as such was constitutionally improper because the officer lacked a particularized and objective basis for suspecting that he was involved in or was about to be involved in criminal activity. Carter further argues that his consent to the search of his person was invalid because it was the product of an illegal second-tier detention. Carter’s argument fails because the evidence supports a finding that this was a first-tier encounter.

In a first-tier encounter, “police may approach citizens, ask for identification, ask for consent to search, and otherwise freely question the citizen without any basis or belief of criminal activity so long as the police do not detain the citizen or convey the message that the citizen may not leave.” Contrary to Carter’s contentions, “a request to search made during the course of a first-tier encounter does not transform the encounter into a second-tier . . . stop. It is clear that merely requesting consent for a search is not a seizure and does not require articulable suspicion.”

When the State seeks to justify a warrantless search on grounds of consent, it must prove that the consent was freely and voluntarily given and not merely acquiescence to a claim of lawful authority. Here, the officer testified that when he asked Carter if he had a weapon and if he could retrieve it, Carter was not under arrest or detention, did not refuse to talk to him, and did not attempt to walk away. Counsel for the State asked the officer, “[Wjould you say [Carter] was free to leave at all times until you found this powder substance?” to which the officer replied, “That’s correct. He could have walked away.” Here, there was no evidence that the officer restrained Carter’s movements by physical force or a show of authority. Given these circumstances, no particularized or objective suspicion was required, and the State met its burden of showing valid consent.

“A valid consent eliminates the need for either probable cause or a search warrant. Moreover, once a voluntary consent is legally obtained, it continues until it either is revoked or withdrawn.” Given Carter’s consent to the search, the officer had a valid prior justification for his intrusion into Carter’s pocket, where he inadvertently discovered the baggie with crack cocaine residue in it when he retrieved the Leatherman to which the baggie was attached. Carter admitted it contained crack cocaine. Only after Carter admitted that the baggie contained crack cocaine did the officer place Carter in handcuffs and seize the baggie to field test its contents. Because the incriminating evidence was in plain view when the officer removed the Leatherman from Carter’s pocket, the officer was authorized to seize the baggie.

Decided January 31, 2013.

Mary Erickson, for appellant.

Daniel J. Porter, District Attorney, Frances B. Anderson, Assistant District Attorney, for appellee.

To the extent that Carter’s testimony about the incident differs from the police officer’s testimony, it is well settled that on appeal, we must accept a trial court’s decision regarding questions of fact and witness credibility unless it is clearly erroneous. Here, the trial court did not err in denying Carter’s motion to suppress.

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

       OCGA § 16-13-30 (a).

       (Punctuation, footnote and emphasis omitted.) Ware u. State, 309 Ga. App. 426, 426 (710 SE2d 627) (2011).

       Id. at 427.

       (Citations omitted.) State v. Folk, 238 Ga. App. 206, 207 (521 SE2d 194) (1999) (whole court).

       (Citation, punctuation and footnote omitted; emphasis supplied.) Minor v. State, 298 Ga. App. 391, 394 (1) (a) (680 SE2d 459) (2009).

       (Citation and punctuation omitted.) Whiting v. State, 275 Ga. App. 251, 253 (620 SE2d 480) (2005).

        Ware, supra at 428-429.

        Minor, supra at 394-395 (1) (a). The cases that Carter cites to show that this was a second-tier encounter are inapposite, as these cases involve detentions and Carter on appeal points to no facts showing that he was detained. See Walker v. State, 299 Ga. App. 788, 790 (1) (683 SE2d 867) (2009) (officer told defendant to “ ‘hold on . . . come here,’ and sit on the pavement, and . . . then asked [him] questions pursuant to a ‘field investigation’ ”); Brown v. State, 301 Ga. App. 82, 83 (686 SE2d 793) (2009) (after defendant denied having a weapon, officer drew his gun and told defendant to walk to the patrol car); Barnes v. State, 228 Ga. App. 44, 44-45 (491 SE2d 116) (1997) (police asked defendant to stop, “started tussling” with him, took a box containing crack cocaine from him, and told him to place his hands on the car).

       See Brint v. State, 306 Ga. App. 10, 13 (2) (701 SE2d 507) (2010).

       (Footnote omitted.) Ware, supra at 428.

       See Buchanan v. State, 259 Ga. App. 272, 273-274 (576 SE2d 556) (2002) (trial court did not err in denying motion to suppress where officer seized plastic bag containing cocaine after it fell out of defendant’s pocket and was in plain view).

        Ware, supra at 426.


text:
    A12A2022.
    GIBSON v. THE STATE.
    (737 SE2d 728)
   Boggs, Judge.

In this appeal, we consider whether a restitution hearing is a “critical stage of proceedings” in which a defendant has a right to counsel. Under the circumstances presented here, we conclude that it is, and we accordingly reverse and remand for a new restitution hearing.

Derrick Gibson pleaded guilty to theft by receiving, theft by taking, theft by deception, falsification of a vehicle identification number, and removal of a vehicle identification number in connection with the theft of a classic Ford Mustang. At the plea hearing, Gibson’s counsel indicated that he was willing to pay restitution, but disagreed with the amount proposed by the State. The trial court accepted the plea and directed that Gibson remain in the courtroom so that court staff could schedule a date for Gibson’s return for the restitution hearing. Sentence was entered accordingly. At the restitution hearing, Gibson’s counsel was present, but Gibson did not appear. Counsel provided no explanation or excuse for the absence of her client.

The victim presented testimony regarding his expenses and damage to the vehicle. When Gibson’s counsel rose to cross-examine, the trial court refused to allow her to cross-examine the witness, produce any evidence, or make argument regarding the amount of restitution in the absence of her client. The trial court observed, “I don’t think you get to challenge without him present, the — essentially, the reasonableness of what he’s asking for.” The trial court concluded, “I’m going to give him everything he’s asking for if your client’s not present.”

An order was entered directing that Gibson pay $1,692 in restitution. From this order Gibson appeals, asserting four enumerations of error. We find that Gibson waived his right to be present in person at the hearing, but he did not waive his right to be represented by counsel in his absence. We accordingly reverse and remand for a new restitution hearing.

1. Gibson’s first enumeration of error is controlled by our recent decisionin Williams v. State, 311 Ga. App. 152, 154 (2) (715 SE2d 440) (2011). In Williams, a restitution hearing was held in the absence of the appellant, but her counsel was present. Id. at 153. We assumed without deciding that a restitution hearing is a “critical stage of proceedings” requiring the presence of the defendant, id. at 154, and concluded that because counsel was given notice of the restitution hearing and counsel offered no explanation for Williams’ absence, “the trial court was entitled to presume that Williams voluntarily chose not to attend the hearing, thus waiving her confrontation rights.” (Citations and footnotes omitted.) Id. at 155.

Here, the trial court at the end of the sentencing hearing gave notice of the restitution hearing not only to Gibson’s counsel but to Gibson himself as well: “You’re not to leave the courtroom today until my staff. .. gives you a date to come back for a restitution hearing.” As in Williams, Gibson’s counsel was present at the restitution hearing, but did not present evidence or state in her place any reason for Gibson’s absence. Gibson therefore waived his right to be present at the restitution hearing. Id.

Gibson attempts to distinguish Williams by asserting that he “failed to appear” rather than “failed to return” to court, citing such decisions as Pollard v. State, 175 Ga. App. 269, 270 (333 SE2d 152) (1985). But the cases cited by Gibson involve the absconding of a defendant prior to trial, when jeopardy had not yet attached. Id.; compare Winfield v. State, 210 Ga. App. 849, 851 (1) (437 SE2d 849) (1993) (defendant failed to appear on second day of trial). Here, Gibson had entered a plea of guilty and jeopardy had attached. OCGA § 16-1-8 (a) (2); Terrell v. State, 236 Ga. App. 163, 165 (511 SE2d 555) (1999). The trial court did not err by proceeding with the restitution hearing in Gibson’s absence.

2. The trial court did err, however, in refusing to allow Gibson’s counsel, who was present, to cross-examine the victim on the issues of his expenses and the amount of restitution to which he was entitled, or to present argument on Gibson’s behalf.

Independent of his right to be present, which was waived as noted in Division 1, Gibson is entitled to representation by counsel at any “critical stage of the proceedings,” including sentencing. Robertson v. State, 280 Ga. 885, 886 (635 SE2d 138) (2006). In Golden v. Newsome, 755 F2d 1478, 1481 (11th Cir. 1985), upon which our Supreme Court relied in Robertson, the Eleventh Circuit considered the appeal of a Georgia habeas corpus proceeding. The court held that the petitioner’s sentencing was fundamentally unfair because he was denied his right to be represented by counsel at the proceeding, even though he was a fugitive from justice at the time. Golden, supra, 755 F2d at 1484. See also Ga. Const., Art. I, Sec. I, Par. XII (“No person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.”) (Emphasis supplied).

We therefore must consider the issue that was not reached in Williams, supra: Is a separate restitution hearing a “critical stage of proceedings”? While we have found no Georgia decision directly on point, other states which have considered the question have held that a restitution hearing is part of sentencing and therefore a critical stage at which the defendant is entitled to counsel. Like federal law, these decisions are not in any sense binding precedent, but we may look to them for persuasive reasoning. Smith v. Stewart, 291 Ga. App. 86, 92 (1), n. 7 (660 SE2d 822) (2008).

“A criminal defendant is entitled to representation by counsel at all critical stages of the proceeding, including sentencing. This includes any hearing to determine the amount of restitution. [Cits.]” Ritch v. State, 14 S3d 1104, 1107 (Fla. Dist. Ct. App. 2009). See also Bargeron v. State, 895 S2d 385, 387 (Ala. Crim. App. 2004); State v. Guadagni, 218 Ariz. 1, 7 (178 P3d 473) (2008); Long v. State, 2009 Ark. App. 97 (2009 Ark. App. LEXIS 77, decided February 18, 2009) (unpublished); People v. Cain, 82 Cal.App.4th 81, 87 (I) (97 Cal. Rptr. 2d 836) (2000); State v. Alspach, 554 NW2d 882, 883 (II) (Iowa 1996); State v. Muhammed, 250 P3d 844 (Kan. App. 2011) (unpublished); State v. Sabby, 2011 Minn. App. Unpub. LEXIS 333 (Case Nos. A10-825, A10-1397, decided April 12, 2011); State v. Perkins, 2011 Ohio 3129 at ¶ 8, n. 1 (Ohio Ct. App. 2011); State v. Phillips, 235 Ore. App. 646, 653 (234 P3d 1030) (2010), modified, 236 Ore. App. 465 (236 P3d 789) (2010); State v. Cabrera, 2007 UT App. 194 at ¶ 14 (II) (163 P3d 707) (2007).

After carefully reviewing these decisions, we find the reasoning employed persuasive. We therefore conclude that a separate hearing to determine the amount of restitution to be made part of a defendant’s sentence is a critical stage of proceedings. In some cases an order for restitution is merely a pro forma, ministerial act not requiring the exercise of the court’s discretion, and thus is not a critical stage of the proceedings. See Robertson, supra, 280 Ga. at 886; Golden, supra, 755 F2d at 1483, n. 9. But here, the trial court took evidence and exercised its discretion at a separate hearing to set the amount of restitution. Gibson has enumerated specific issues with regard to the amount of restitution which his counsel was prevented from asserting on his behalf. The trial court’s action in determining the amount of restitution was part of Gibson’s sentencing and was not “purely ministerial,” and the hearing was thus a critical stage of proceedings at which Gibson was entitled to representation by counsel.

The State argues that Gibson’s right to counsel was satisfied by the physical presence of his attorney at the hearing. But “it has long been recognized that the right to counsel is the right to effective assistance of counsel.” (Citation and punctuation omitted.) United States v. Cronic, 466 U. S. 648, 654 (II) (104 SC 2039, 80 LE2d 657) (1984). And effective representation requires that counsel “subject the prosecution’s case to meaningful adversarial testing.” (Citation, punctuation and footnote omitted.) State v. Heath, 277 Ga. 337, 338-339 (588 SE2d 738) (2003), citing Cronic, supra. Prohibiting counsel from cross-examining the witness and from making argument prevents any meaningful challenge to the State’s case, and in such circumstances the mere presence of counsel does not amount to representation.

Decided January 31, 2013.

Gerard B. Kleinrock, for appellant.

Robert D. James, Jr., District Attorney, Leonora Grant, Deborah D. Wellborn, Assistant District Attorneys, for appellee.

The State also conflates Gibson’s right to representation by-counsel at the restitution hearing with the Sixth Amendment right of confrontation, which is personal to the accused and may be waived. But waiver of the right of confrontation does not foreclose the right to representation by counsel. In Winfield, supra, although Winfield “waive [d] the right to be present during trial proceedings by voluntarily absenting himself from the court, [cit.]” Winfield’s counsel continued to conduct the trial and cross-examine witnesses. 210 Ga. App. at 850-851. Compare Anderson v. State, 238 Ga. App. 866, 873 (3) (519 SE2d 463) (1999), in which Anderson acted as his own attorney and waived his right to cross-examine a State witness when he “voluntarily absent[ed] himself from the proceedings. [Cit.]”

We therefore reverse and remand this case to the trial court for a new restitution hearing.

3. Gibson’s remaining enumeration of error is rendered moot by our decision in Division 2.

Judgment reversed and case remanded with direction.

Doyle, P. J., and Andrews, P. J., concur.

       See Perez v. State, 283 Ga. 196, 198 (657 SE2d 846) (2008) (“The decisions of the Eleventh Circuit are not binding on this Court, but they are persuasive authority. [Cit.]”).

       Although this is an unpublished opinion and thus of no precedential value, see Ark. Sup. Ct. & Ct. of App. Rule 5-2 (c), we consider the reasoning of this and other unpublished decisions persuasive, much as we may consider the content of a Georgia Court of Appeals decision despite its lack of precedential value. Amusement Sales v. State of Ga., 316 Ga. App. 727, 736 (2) (730 SE2d 430) (2012).

       The State cites Pearce v. State, 256 Ga. App. 889, 891 (2) (570 SE2d 74) (2002), for this proposition, but there we expressly did not consider the question because Pearce waived it by failure to object at trial.


text:
    A12A2183.
    BIGGS v. THE STATE.
    (737 SE2d 734)
   McFADDEN, Judge.

Pursuant to the grant of an out-of-time appeal, Joey Biggs appeals from the denial of his motion to withdraw a guilty plea. Biggs claims that his post-conviction counsel was ineffective at the hearing on the motion to withdraw.

But he never raised that claim in the trial court. A claim of ineffectiveness must be raised at the earliest practicable moment. And because Biggs was represented by his present counsel when the out-of-time appeal was granted, he was required to file a second motion to withdraw his guilty plea in order to raise that claim at the earliest practicable moment. Because he did not do so, the claim is barred, and we must affirm.

The record shows that on June 23, 2008, Biggs, with the assistance of counsel, pled guilty to the offenses of aggravated assault, possession of a knife during the commission of a crime, false imprisonment, battery and obstruction of an emergency telephone call. Biggs filed a timely motion to withdraw his guilty plea. Following a hearing, at which Biggs was represented by new post-conviction counsel, the trial court denied the motion to withdraw. Several days after the time for filing a direct appeal from that denial had passed, a third attorney was appointed to represent Biggs. That attorney, current appellate counsel, filed a motion for an out-of-time appeal, which the trial court granted. Current appellate counsel did not then file a motion challenging the effectiveness of Biggs’ first post-conviction counsel, and instead immediately filed a notice of appeal to this court.

On appeal, Biggs claims for the first time that his first post-conviction counsel rendered ineffective assistance at the motion to withdraw hearing and requests that we remand the case to the trial court for a new hearing on his motion to withdraw. However, as fully explained in the similar case of Dawson v. State, 302 Ga. App. 842 (691 SE2d 886) (2010), this ineffective assistance claim is procedurally barred because Biggs, who had the opportunity to raise it in the trial court, failed to do so.

Generally, a claim of ineffectiveness must be asserted at the earliest practicable moment and, when it is not, the claim is waived and thus procedurally barred. And the grant of an out-of-time appeal should be seen as permission to pursue the post-conviction remedies which would be available at the same time as a direct appeal and constitutes permission to pursue appropriate post-conviction remedies. Applying both of the above-stated principles to a claim of ineffective assistance of counsel asserted for the first time after the grant of an out-of-time appeal, our Supreme Court has held that the claim is procedurally barred unless the defendant’s appellate counsel files a motion in the trial court raising the ineffectiveness claim after the out-of-time appeal has been granted. This is true regardless of whether, in this case, a motion to withdraw a guilty plea had previously been denied by the trial court prior to the grant of the out-of-time appeal. ... In accordance with [the] case law, [Biggs] was required to assert his claim of ineffective assistance of post-conviction counsel at the earliest opportunity, and was further required to file a second motion to withdraw the guilty plea after being granted an out-of-time appeal. Because his current appellate counsel was appointed [before] the grant of the out-of-time appeal [and] prior to the filing of the notice of appeal, the earliest opportunity in which [Biggs] could have raised a claim of ineffective assistance of post-conviction counsel would have been in a second motion to withdraw the guilty plea. Thus, under the dictates set forth by our Supreme Court, [Biggs’] claim is barred and may only be addressed in a habeas corpus proceeding.

Decided January 31, 2013.

Christopher G. Paul, for appellant.

T. Joseph Campbell, District Attorney, Jana W. Allen, Rosemary M. Greene, Assistant District Attorneys, for appellee.

(Citations and punctuation omitted.) Dawson, supra at 843-844.

Accordingly, because the ineffectiveness claim is not properly before us, Biggs has shown no basis for reversing the judgment of the trial court.

Judgment affirmed.

Barnes, P. J., and McMillian, J., concur.


author: Dillard, Judge.

text:
    A12A2502.
    ROBINSON v. BUTLER et al.
    (737 SE2d 731)
   Dillard, Judge.

In this discretionary appeal, Harriet Robinson challenges the superior court’s decision to affirm the Georgia Department of Labor’s (“the Department”) denial of unemployment benefits after Robinson’s discharge from Grady Memorial Hospital (“Grady”) for violating an employment policy. She argues, inter alia, that it was error to consider inadmissible hearsay (i.e., an e-mail), which was the sole evidence against her. We agree and reverse.

The record reflects that Robinson was employed with Grady as a peer-support specialist who dealt with mentally ill and/or mentally disabled patients from March 2008 until November 2009. She worked with these patients in a room that contained approximately ten computers that were to be used by members of the peer center, as well as Robinson’s personal work computer.

The incident resulting in Robinson’s termination first came to light in November 2009 after a Grady patient e-mailed Robinson’s supervisor, noting that he had received a disturbing e-mail-—containing a link to a pornographic website—from Robinson’s personal e-mail address in June 2009. The November 2009 e-mail from the patient to the supervisor attached the June 2009 e-mail allegedly sent by Robinson.

From there, an investigation ensued and Robinson was asked to provide a written statement, which acknowledged that she accessed her personal e-mail while at work on the day in question and that the e-mail’s timestamp indicated that the message was sent during a scheduled break. But she did not admit to sending the e-mail, contending that “if” the e-mail was sent, it was in error, and indicating that she previously asked patients to stay away from her computer. Robinson was ultimately terminated for sending a pornographic e-mail to the patient.

A claims examiner from the Department later concluded that Robinson was eligible to receive unemployment benefits, but Grady appealed this decision and requested that a hearing officer determine whether Robinson was so entitled. A telephone hearing was thereafter conducted, and the hearing officer ruled that Robinson was not entitled to benefits. But that decision was then appealed to the superior court, which remanded the case for a de novo hearing after determining that Robinson’s due-process rights were violated during the first hearing.

At the second hearing, Robinson testified that she did not send the pornographic e-mail to the patient and that her written statement to the supervisor clarified that if the e-mail was sent, it was sent in error. Robinson was adamant that the e-mail was not intentionally sent to the patient, although her testimony shed little light on how the e-mail was potentially sent in error. Nevertheless, the Department once again determined that Robinson was disqualified from receiving benefits. And after an appeal by Robinson, the Department’s Board of Review upheld the' denial of benefits. The superior court affirmed this decision, and we granted Robinson’s application for a discretionary appeal.

At the outset, we note that in considering whether the administrative tribunal properly found that Robinson was not entitled to receive unemployment benefits, “the trial court, as well as this court, must affirm if there is any evidence to support that ruling.” An individual may be disqualified from receiving unemployment benefits when he or she has been “discharged for failure to obey orders, rules, or instructions or for failure to discharge the duties for which the individual was employed.” But before disqualification is appropriate, “the employer must show that the discharge was caused by the deliberate, conscious fault of the claimant.” This is consistent with the “strong public policy favoring payment of unemployment benefits to persons unemployed through no fault of their own.” Indeed, disqualification from benefits is “an exception to the statutory scheme for unemployment benefits and the employer must show by a preponderance of the evidence that disqualification is appropriate.”

With these guiding principles in mind, we turn now to the pertinent enumeration of error raised by Robinson on appeal.

1. As noted supra, Robinson contends that the only evidence demonstrating that she violated a Grady employment policy—i.e., by using her personal e-mail to send pornographic content to a patient— came in the form of inadmissible hearsay. We agree.

At the administrative hearing, Robinson denied sending the e-mail, and the only evidence of her alleged infraction came by way of communications from the patient to Robinson’s supervisor. The patient himself did not testify. Instead, the supervisor testified as to the content of her communications with the patient, and the e-mail thread between the patient and supervisor, which contained an attachment of the pornographic content sent from Robinson’s personal e-mail address to the patient, was then tendered into evidence.

The foregoing clearly constituted inadmissible hearsay, and it is well settled that inadmissible hearsay is “not competent evidence and is without probative value to establish any fact.” Indeed, inadmissible hearsay is “not competent to prove a violation of an employer’s policies or rules sufficient to disqualify the employee for benefits.” And here, Robinson’s supervisor testified that Robinson was terminated because “she violated the Grady policy as far as going on her email at work and sending . . . inappropriate . . . websites to a member.” But the only evidence of this violation came by way of the patient’s e-mail, which was inadmissible hearsay. Accordingly, the decision of the Board cannot be sustained, and because the superior court below should have overturned the Board’s decision, we reverse the judgment below.

Decided January 31, 2013.

Jeffrey R. Filipovits, for appellant.

Samuel S. Olens, Attorney General, Kimberly B. Lewis, Assistant Attorney General, for appellee.

2. Robinson argues in the alternative that (1) even if the e-mail was admissible, it was nevertheless error to find evidence of deliberate intent to violate a Grady employment policy, and (2) the Department failed to consider all relevant questions of law in determining that she should be disqualified from receiving benefits. But because we agree that the sole evidence against Robinson amounted to inadmissible hearsay, we need not address these arguments.

Judgment reversed.

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

       Due to privacy concerns, the patient’s name and gender were not revealed during the course of the proceedings below, but we refer to the patient as “he” for simplicity’s sake.

        MCG Health, Inc. v. Whitfield, 302 Ga. App. 408, 408 (690 SE2d 659) (2010); see also Jamal v. Thurmond, 263 Ga. App. 320, 320 (587 SE2d 809) (2003) (“On appeal to this Court, our duty is not to review whether the record supports the superior court’s decision but whether the record supports the initial decision of the local governing body or administrative agency.” (punctuation omitted)).

        MCG Health, 302 Ga. App. at 409 (punctuation omitted); see also OCGA § 34-8-194 (2) (A); Jamal, 263 Ga. App. at 321 (1).

        Jamal, 263 Ga. App. at 321 (1) (punctuation omitted); see also MCG Health, 302 Ga. App. at 409.

        MCG Health, 302 Ga. App. at 409 (punctuation omitted).

        Id. (punctuation omitted).

       See former OCGA § 24-3-1 (b) (“Hearsay evidence is admitted only in specified cases from necessity.”).

        Universal Mgmt. Concepts, Inc. v. Noferi, 270 Ga. App. 212, 215 (2) (605 SE2d 899) (2004) (“[W]e are unable to consider the letter and e-mail, which clearly constitute [inadmissible] hearsay.”); see also Cooper v. State, 253 Ga. App. 242, 243 (558 SE2d 786) (2002) (holding that letter constituted hearsay and was inadmissible absent authentication). Cf. Hollie v. State, 298 Ga. App. 1, 3 (1) (679 SE2d 47) (2009) (“[The witness] testified that she did not write nor did she recognize the document at issue. [The defendant] did not offer any evidence in an attempt to satisfy his burden of proof to establish a prima facie case of genuineness, other than having [the witness] testify to her e-mail address. Though the e-mail transmission in question appears to have come from [the witness’s] e-mail address, this alone does not prove its genuineness.”).

        Teal v. Thurmond, 310 Ga. App. 312, 313 (713 SE2d 436) (2011).

        Id. at 314.

        See supra note 8.