author: Adams, Judge.

text:
    A11A1340.
    AVERY v. THE STATE.
    (716 SE2d 729)
   Adams, Judge.

Following a traffic stop, appellant Jesse Trotter Avery was charged with per se DUI pursuant to OCGA § 40-6-391 (a) (5), failure to maintain lane, and driving with a suspended license. Avery filed a motion in limine and to suppress arguing, inter alia, that the results of the Intoxilyzer 5000 should be excluded because the State did not comply with his request for additional testing. Avery also filed a special demurrer to the driving on a suspended license charge, and the prosecutor agreed that charge should be dismissed. After his motion to suppress and motion in limine were denied, he was tried before the probate court sitting without a jury and convicted of failure to maintain lane and driving under the influence. He appealed to the superior court, and his conviction was affirmed. He filed a timely notice of appeal to this Court, contending that his motion to suppress should have been granted, that the results of the field sobriety tests should have likewise been excluded because the officer performing the tests failed to give him Miranda warnings prior to the administration of those tests, and his right of cross-examination was unduly restricted.

1. Avery first argues that the results of the Intoxilyzer 5000 should have been excluded because his request for an independent chemical test was not accommodated. Ladow v. State, 256 Ga. App. 726, 728-729 (569 SE2d 572) (2002).

Deputy Michael Cloud of the Dade County Sheriff s Department testified at both the motion to suppress hearing and at trial. According to his testimony at the motion to suppress hearing, he stopped Avery after he observed him failing to maintain his lane. Deputy Cloud testified that he smelled a strong odor of alcoholic beverage coming from the vehicle, so he asked Avery if he had any alcoholic beverages to drink that evening and Avery told him he had not.

After calling dispatch to check Avery’s license, which came back as having been suspended by the State of Tennessee, Deputy Cloud had Avery exit the car and asked Avery to blow into an alco-sensor. Avery asked the deputy what it would show if he had one beer to drink, and Deputy Cloud said he did not know but did not pursue the test, opting to perform a series of field sobriety tests instead. Avery then successfully recited his ABCs, although Deputy Cloud said there were some pauses in between letters that to him indicated some confusion. Avery also successfully performed a counting test, although he performed the test one time too many. And according to Deputy Cloud, the HGN test indicated Avery was impaired to some degree.

Deputy Cloud testified that he then informed Avery that he was under arrest for driving with a suspended license and driving under the influence. He placed Avery in his patrol car and read him Georgia’s implied consent notice, and Avery agreed to take the State’s breath test. Deputy Cloud and Avery then waited in the patrol car for Avery’s father to come pick up his car.

After arriving at the detention center, Avery took the State’s test, registering 0.080 on the Intoxilyzer 5000. Avery was then turned over to detention officers while Deputy Cloud wrote out the accusations against him.

On cross-examination Deputy Cloud testified that he could not recall if Avery had requested any additional testing. Deputy Cloud further testified that if the videotape of the stop showed that Avery requested more field sobriety testing, then he did not have to comply with that request. After further cross-examination, Deputy Cloud testified that a suspect must first submit to the State’s test before he is entitled to have an additional test of his own choosing, and thus if Avery had made the request at the jail after the State-administered breath test, his request would have been accommodated.

After the probate court denied the motion in limine and motion to suppress without explanation, the case proceeded to trial. During the trial, Deputy Cloud testified again concerning why he stopped Avery, and the other events that transpired after the stop. The audio-videotape of the stop was then played for the first time. That tape showed that after Avery was placed under arrest and put in the patrol car, he continued to plead with the deputy to let his parents pick him up instead of arresting him. The audio-videotape also showed that after Deputy Cloud read Avery the implied consent notice, Avery asked the deputy if he was going to let him go if he did not register 0.080 and then agreed to take the State’s breath test. Avery then continued to plead with Deputy Cloud to let his parents take him home and not to charge him with DUI, stating at one point that he passed the field sobriety tests. Deputy Cloud responded that he still had to go to jail on the suspended license and to take the Intoxilyzer test. Avery continued to plead with the deputy and then stated “Give me some more like tests, like please.” Deputy Cloud responded that Avery had to take the State’s test at the jail. Avery indicated some confusion, asking the deputy “what — what’s the state’s test” or words to that effect. The deputy replied, “I read you the card.”

After the tape was played, Avery’s counsel cross-examined the deputy about Avery’s request for additional testing, and Deputy Cloud confirmed that he heard what was on the audio-videotape but that he thought it referred to additional field sobriety testing.

Following this testimony, Avery moved for a directed verdict of acquittal on the charge of driving under the influence, again arguing that the results of the Intoxilyzer should have been excluded based on the deputy’s testimony that additional tests were requested but not given. In response, the State argued that “it’s a . . . stretch to say that at any point in time he could request tests and then this officer is supposed to decipher . . . what that means.” Further, the prosecutor argued that Avery “invoke[d] this generalized I’ll take more tests before the implied [consent was] even read,” and that he agreed to take the State’s test after the implied consent warnings were read, took the test, but did not make any request for additional testing after the test was performed. After hearing this argument, the trial court denied the motion for directed verdict without elaboration.

Avery then testified. According to Avery, he asked for “more tests” because he did not trust the State’s test since he had passed the field sobriety tests but was arrested for DUI anyway. He further testified that he asked for additional testing, including another breath test, at least twice after he took the State’s test at the jail but his request was not accommodated. On rebuttal, Deputy Cloud testified that he did not hear Avery make a request for additional testing while they were at the jail, but that he did not know if a request was made to either of the detention officers who were also present that night.

The trial court subsequently entered an order finding Avery guilty of failure to maintain lane and DUI. Avery appealed to the superior court, arguing that the State had improperly argued that he did not have the right to an independent test because he made his request prior to taking the State’s test and that the probate court had incorrectly applied the law in deciding this issue. After a hearing, the superior court denied Avery’s appeal, finding that, as to his request, Avery

asked Officer . . . Cloud to give him some more tests. The request was made to the officer and was made requesting that the officer perform the tests, specially mentioned a sobriety test. The Court finds that [Avery’s] request was not an expression of his desire for an independent chemical or other type of test. In light of the circumstances it could not [be] construed to be an expression of a desire for an additional independent test or tests.

At the outset we note that the audio-videotape clearly shows that Avery made a request for “more tests” approximately seven minutes after he was read his implied consent warnings, although the State, somewhat inexplicably, insisted in both the probate court and the superior court that he made the request before those warnings were read. However, it does not appear that either the probate court or the superior court would have been misled by this misrepresentation, inasmuch as both courts viewed the videotape in which the sequence of events were clearly depicted. Moreover, the probate court sustained Avery’s objection to a question posed by the prosecutor that mischaracterized the evidence in this manner. And, although the probate court did not, either orally or in writing, state a basis for its rulings on this issue, it is clear that the superior court based its ruling on the content of the request, not the timing of the request.

Further we note that although it is true that Avery was not entitled to take an independent chemical test until after he completed the State’s test, it is not true, as the State also argued below, that only requests made after the completion of the test need be accommodated. As this Court has held, implied consent warnings do not specify to the accused any requirement for requesting an independent chemical test — linguistically, temporally, or otherwise. Ladow v. State, 256 Ga. App. at 728-729; see also McGinn v. State, 268 Ga. App. 450 (602 SE2d 209) (2004). Rather,

[a]n accused’s right to have an additional, independent chemical test administered is invoked by some statement that reasonably could be construed — in light of the circumstances — to be an expression of a desire for an additional, independent test. In adhering to this principle, we are guided by the circumstances surrounding an alleged request, not simply the semantics of the alleged request itself.

State v. Gillaspy, 270 Ga. App. 111, 112 (605 SE2d 835) (2004). Brooks v. State, 285 Ga. App. 624, 626-627 (647 SE2d 328) (2007). Thus, even when requests are similarly or identically worded, different findings on whether an independent test was requested may be compelled depending on the circumstances surrounding the making of the request. Id.; State v. Gillaspy, 270 Ga. App. at 112 (trial court erred as a matter of law by not considering circumstances surrounding request); see also Anderton v. State, 283 Ga. App. 493, 494-495 (1) (642 SE2d 137) (2007).

In this case, the circumstances show that Avery’s primary goal was to get the officer to release him to his father when he arrived instead of arresting him. While that goal could have been accomplished if the deputy agreed to let him take more field sobriety tests and release him if he passed those tests, that immediate goal would not have been accomplished by taking additional chemical tests because that would have required that Avery remain in custody. Moreover, the request was made for more “tests” plural, not an additional “test.” And, as the superior court noted, his request was for the deputy to give him more tests, not for an independent test. Further, Avery had just mentioned the field sobriety tests, which he believed did not indicate impairment. And Avery clearly was not focused on any potential tests conducted after he left the scene, as he appeared confused about the state-administered test he was going to take at the jail. Based on these circumstances, we agree that Avery’s statement that he wanted “more tests” cannot reasonably be construed as a request for an independent chemical test of his own choosing, and the results of the State-administered test were properly admitted at trial.

2. Avery next contends that the trial court improperly restricted his cross-examination of Deputy Cloud by sustaining the prosecuting attorney’s objection interposed during his questioning of the deputy about the margin of error on the Intoxilyzer 5000. However, at the point the objection was sustained, the deputy had already testified twice that he did not recall the margin of error. Thus, even assuming the ruling was in error, it was harmless as the question had already been answered, and it does not appear that anything more was to be gained from the witness concerning his knowledge on that subject.

3. Lastly, we find no merit to Avery’s contention that the results of the field sobriety tests should have been suppressed because he was not given Miranda warnings prior to the administration of those tests. The record shows that he was not placed under arrest or taken into custody until after those tests were completed, and nothing preceding his arrest occurred which would have required the deputy to inform him of his Miranda rights. E.g., Doyle v. State, 281 Ga. App. 592, 593 (1) (636 SE2d 751) (2006); Moody v. State, 273 Ga. App. 670, 671 (1) (b) (615 SE2d 803) (2005). This enumeration thus also presents no basis for reversal.

Decided September 7, 2011

William D. Cunningham, for appellant.

Herbert E. Franklin, Jr., District Attorney, Leonard C. Gregor, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes, B J., and Blackwell, J., concur.

       “If an individual requests an independent test but is unable to obtain it, the results of the State-administered test cannot be used by the State as evidence against [him] unless the failure to obtain the test is justified.” (Citation and punctuation omitted.) Ladow v. State, 256 Ga. App. at 728.

       The determination of whether Avery also requested additional testing after he took the State’s test was for the trial court to determine, as the trier of fact and the arbiter of credibility issues. Obviously, since even the State argued he would have been entitled to those independent tests if he made the request after the administration of the State’s test, the trial court determined this issue adversely to him.

        Miranda v. Arizona, 384 U. S. 436, 444 (86 SC 1602, 16 LE2d 694) (1966).


source: Caselaw Access Project

author: MCFADDEN, Judge.

license: Public Domain

text:
    A11A1480.
    McDOWELL et al. v. REGIONS BANK.
    (716 SE2d 638)
   MCFADDEN, Judge.

Dennis McDowell and Wyndham Gate, LLC appeal from a trial court order granting Regions Bank’s petition for resale of foreclosed-upon property. Because the trial court did not abuse its discretion in ordering the resale, we affirm.

On October 6, 2010, Regions filed a report of foreclosure sale in the Superior Court of Coweta County. The report noted that McDowell and guarantor Wyndham Gate had defaulted on the repayment of various loan obligations secured by certain real property; that Regions had conducted a foreclosure sale as to that property; and that Regions was the highest bidder at the sale, with a bid amount of $451,006.92. Rather than seeking confirmation of the sale, Regions requested a resale of the property on the basis that its “bid was inadvertently based on an appraisal that did not include all of the property foreclosed upon, and therefore fair market value was not obtained.” After a hearing, the trial court granted the request for a resale, and this appeal followed.

OCGA § 44-14-161 (c) provides that a trial court passing upon the regularity of a foreclosure sale “may order a resale of the property for good cause shown.” This Code section gives the trial court broad discretion to grant or deny a resale and, on appeal, we will “not disturb that exercise of discretion unless it is clearly, patently, and manifestly abused.” Resolution Trust Corp. v. Morrow Auto Center, 216 Ga. App. 226, 229 (3) (454 SE2d 138) (1995). Here, the trial court found, and counsel for appellants acknowledged at the hearing, that there was no bad faith on the part of the bank. The trial court then concluded that good cause to order a resale had been shown to “let the property bring its true fair market value.”

Decided September 7, 2011.

Smith Conerly, Joseph N. Smith, Charles S. Conerly, Randall C. Parian, for appellants.

Greenberg Traurig, Sean A. Gordon, for appellee.

As this court has repeatedly held, “the law is that a failure to sell for the true market value is good cause to order a resale.” Damil, Inc. v. First Nat. Bank of Dalton, 165 Ga. App. 678 (302 SE2d 600) (1983). See also Davie v. Sheffield, 123 Ga. App. 228, 230 (180 SE2d 263) (1971) (where there is failure to sell for true market value, the court may order a resale). Because the record plainly shows that Regions did not act in bad faith and that the property failed to sell for its true market value, the trial court did not abuse its discretion in ordering a resale. See Adams v. Gwinnett Commercial Bank, 140 Ga. App. 233, 234-235 (3) (230 SE2d 324) (1976).

Judgment affirmed.

Phipps, P J., and Andrews, J., concur.


author: Dillard, Judge.

text:
    A11A0665.
    A11A0666.
    A11A0667.
    A11A0668.
    SADLER et al. v. DEPARTMENT OF TRANSPORTATION OF THE STATE OF GEORGIA. DALEY v. DEPARTMENT OF TRANSPORTATION OF THE STATE OF GEORGIA. DALEY et al. v. DEPARTMENT OF TRANSPORTATION OF THE STATE OF GEORGIA. HAYES et al. v. DEPARTMENT OF TRANSPORTATION OF THE STATE OF GEORGIA.
    (716 SE2d 639)
   Dillard, Judge.

This appeal follows the trial court’s dismissal of four complaints filed against the Georgia Department of Transportation (“GDOT”) following a traffic accident in which Connie Sadler and Ana Pellerin were tragically killed and in which Peggy Sadler Daley and Dacia Mitchell were seriously injured (collectively “the plaintiffs”). The trial court granted GDOT’s motion to dismiss based upon the plaintiffs’ failure to show a waiver of sovereign immunity. For the reasons noted infra, we affirm.

The record shows that in 2005, Peggy Sadler Daley was driving home with three family members in her vehicle: her sister, Connie, in the passenger seat; her six-month-old daughter, Ana, restrained in the rear passenger-side seat; and her three-year-old daughter, Dacia, restrained in the rear driver-side seat. In order to reach her home, Daley had to pass through the intersection of Cassidy Road and the North Thomasville Highway Bypass/Georgia State Highway 38 in Thomas County. The two lanes of Cassidy Road cross over a four-lane bypass, which is divided by a median and turn lanes. The bypass is flanked by stop-signs on either side of Cassidy Road and white, painted stop-bars within the median.

Daley testified below that on the afternoon in question, she stopped at the stop-sign on Cassidy Road before entering the median of the bypass, and that once she entered the median, she stopped at the painted stop-bar to assess the amount of oncoming traffic before proceeding across the remainder of the bypass. According to Daley, a white car in a left-hand turn lane partially blocked her view of oncoming traffic while she was stopped; nevertheless, Daley’s sister helped her to determine when it was safe to proceed across the remainder of the bypass. Unfortunately, as Daley exited the median, her vehicle was struck on the passenger side by an oncoming pickup truck. As a result of this collision, Daley’s sister and younger daughter were tragically killed, and Daley and her older daughter were seriously injured.

Thereafter, the plaintiffs filed suit against GDOT, alleging that GDOT (1) was negligent in its analysis of the intersection and bypass operations; (2) negligently managed, designed, and maintained the intersection; (3) failed to comply with generally accepted design standards and failed to provide proper traffic-control devices and signals at the intersection; and (4) failed to provide supplemental traffic devices in the median. In response, GDOT asserted that it was immune to the plaintiffs’ claims under the doctrine of sovereign immunity and moved to dismiss the complaints. The trial court granted GDOT’s motion to dismiss, concluding that the plaintiffs had not shown a waiver of sovereign immunity. This appeal by the plaintiffs follows.

At the outset, we note that “sovereign immunity is a threshold issue” for the trial court’s consideration. The Georgia Tort Claims Act sets forth exceptions to a state agency’s sovereign immunity, which are subject to certain limitations; and a plaintiff bears the burden “of establishing that a state agency’s conduct is excepted from sovereign immunity.” Moreover, we review a trial court’s grant of a motion to dismiss on sovereign-immunity grounds de novo, bearing in mind that a motion to dismiss may be granted only when a plaintiff “would not be entitled to relief under any set of facts that could be proven in support of its claim.” Nevertheless, “[w]hen the trial court determines a jurisdictional issue based upon conflicting factual issues, on appeal, the court’s finding on a factual issue will be sustained if there is evidence which authorizes the finding.” With these guiding principles in mind, we turn now to the plaintiffs’ enumerations of error.

1. The plaintiffs first argue that the trial court erred in finding that the design-standards exception applied and that, accordingly, GDOT’s sovereign immunity had not been waived. We disagree.

The design-standards exception shields the State and its agencies from liability for losses that result from

[t]he plan or design for construction of or improvement to highways, roads, streets, bridges, or other public works [when] such plan or design is prepared in substantial compliance with generally accepted engineering or design standards in effect at the time of preparation of the plan or design.

Thus, sovereign immunity does not exempt the State from liability when a plaintiff can show that the State failed to comply with the applicable standard of care. To do this, a plaintiff must present “expert testimony or other competent evidence ... to show that the plan or design was not prepared in substantial compliance with generally accepted engineering or design standards at the time such plan was prepared.”

In the case sub judice, the plaintiffs presented deposition testimony of a consulting engineer, Herman Hill, who posited, in pertinent part, that GDOT was negligent in failing to place adequate and necessary markings and signs in the intersection’s median. GDOT then responded to this testimony by including with its motion to dismiss the affidavit of a professional engineer who averred that (1) the Cassidy Road/Thomasville Bypass intersection fully complied with the applicable generally accepted engineering and design guidelines as set forth in the “Manual of Uniform Traffic Control Devices” (MUTCD), and (2) the plaintiffs’ expert opinions were unsupported by industry practice or were otherwise unreliable.

Based on “the evidence and the written and oral arguments of the parties,” the trial court found that the plans and designs for the intersection, which were completed in 1998, complied with the engineering and design standards that applied at that time — specifically, that the design complied with the policy suggestions in the 1984 edition of “A Policy on Geometric Design of Highways and Streets” and the 1988 edition of MUTCD. And based on our review of the record, we agree with the trial court’s conclusion.

Specifically, plaintiffs’ expert (Hill) testified that if the median was 30 feet or greater in width, the MUTCD would require the placement of a stop-sign in the median. But according to GDOT’s expert, the 1988 MUTCD specifies that stop-signs or yield-signs may be placed inside a median if the median is more than 30 feet wide. And the 1988 MUTCD further defines “may” as a “permissive condition” with “[n]o requirement for design or application . . . intended.”

Moreover, although Hill’s testimony suggested various definitions of and methods for measuring what constitutes the width of a median, he never appeared to reach a definitive conclusion on this important factual issue, and even conceded that the median at issue could be considered less than 30 feet wide under one such definition. And GDOT’s expert averred that the width of the median was in fact less than 30 feet wide. Finally, the testimony of the plaintiffs’ other expert, Robert Stammer, also appeared to agree with the conclusion that the width of the subject median was less than 30 feet.

After considering the foregoing evidence, the trial court found that the median was less than 30 feet wide and, thus, that no additional signage was required. The trial court further found that even if the median had been greater than 30 feet wide, the placement of additional signs would have been permissive, not mandatory, under the MUTCD. Additionally, as further discussed in Division 2, infra, the trial court found that GDOT was not negligent in failing to place a traffic signal at the intersection. As such, the trial court properly held that the plaintiffs failed to establish noncompliance with accepted design and engineering practices. And for all of the reasons outlined supra, we agree with the trial court’s conclusion that the plaintiffs failed to meet their burden of showing that a waiver of sovereign immunity was authorized by the record evidence.

2. The plaintiffs next contend that the trial court erred in finding that the permit exception applied and that, accordingly, GDOT’s sovereign immunity had not been waived. We disagree.

The permit exception creates an exception to the waiver of sovereign immunity as to “ [licensing powers or functions, including, but not limited to, the issuance, denial, suspension, or revocation of or the failure or refusal to issue, deny, suspend, or revoke any permit, license, certificate, approval, order, or similar authorization.” And while GDOT issues permits to local governments for the installation of traffic signals, the MUTCD requires a traffic engineering study to evaluate, prior to any determination to add a traffic signal, the need for the issuance of a signal permit. In this respect, the MUTCD contains “warrants” that indicate when conditions in an area present the need for a traffic signal.

Decided September 8, 2011

Savage, Turner, Pinson & Karsman, Brent J. Savage, Christopher D. Britt, Jack J. Helms, for appellants.

Thurbert E. Baker, Attorney General, Robert C. Edwards, Claude M. Sitton, Assistant Attorneys General, for appellee.

And here, the plaintiffs’ expert (Hill) opined that GDOT was negligent in (1) failing to place a traffic signal at the Cassidy Road intersection and (2) failing to respond to a history of accidents at the intersection, which should have, in his opinion, compelled more than the minimum signal requirements. GDOT, however, presented evidence that when the Cassidy Road intersection opened, there were no warrants for the installation of a traffic signal. Additionally, after the intersection opened, two traffic studies were conducted, neither of which presented warrants indicating the need for a traffic signal. As such, consistent with the MUTCD, GDOT did not issue a permit for the installation of a traffic signal.

The trial court then found that because there was no evidence that the Cassidy Road intersection warranted a signal, and because GDOT had no duty to upgrade the intersection in response to what Hill claimed was a history of accidents, the permitting exception applied. And we conclude that the trial court’s finding in this regard was authorized by the evidence, which shows that the plaintiffs failed to establish a waiver of sovereign immunity as to this claim as well.

Accordingly, for all the foregoing reasons, we affirm the trial court’s grant of GDOT’s motion to dismiss based on sovereign immunity.

Judgments affirmed.

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

       Because the facts and arguments are the same in each case, we have consolidated the cases for appeal.

       A witness to the accident testified that he observed Daley’s vehicle the entire time it proceeded through the intersection and that it did not stop or slow down. Daley, however, testified that she had crossed the intersection “millions of times” and that it was her habit to stop in the median before fully crossing. The trial court found that “[rlegardless of whether Ms. Daley stopped in the median cross-over on the day of the Accident, . . . [she] knew that she had room to stop in the median cross-over.”

       Daley claimed not to have seen the pickup truck until it was right upon her vehicle.

       In Case No. A11A0665, Anna Marie Sadler, as administrator of the estate, and Larry Moore, as next friend of Christopher Moore, filed suit on behalf of Connie Sadler, who is deceased. In Case No. A11A0666, Peggy Sadler Daley (formerly known as Peggy Sadler) filed suit for her own injuries. In Case No. A11A0667, Peggy Sadler Daley filed suit on behalf of her daughter, Dacia Mitchell. And in Case No. A11A0668, H. Daniel Hayes, Jr., as administrator of the estate, and Peggy Sadler Daley, as a surviving parent, filed suit on behalf of Ana Danielle Pellerin, who is deceased. The parties stipulated from the outset of this litigation that discovery would apply to all companion cases but that the respective trials would not be consolidated.

       In the alternative, GDOT also filed a motion for summary judgment and motions to exclude the plaintiffs’ expert testimony; however, the trial court did not address these motions in its order.

        Reidling v. City of Gainesville, 280 Ga. App. 698, 701 (1) (634 SE2d 862) (2006) (citation and punctuation omitted). See generally Dep’t of Transp. v. Dupree, 256 Ga. App. 668, 670-76 (1) (a)-(c) (570 SE2d 1) (2002) (providing an explanation of how and when a trial court considers the question of sovereign immunity).

       OCGA § 50-21-20 et seq.

        Id. ; see also Reidling, 280 Ga. App. at 701 (1).

        See OCGA § 50-21-24; see also Reidling, 280 Ga. App. at 701 (1).

        Reidling, 280 Ga. App. at 701 (1) (citation omitted).

        Lewis v. Dep’t of Human Res., 255 Ga. App. 805, 806-07 (567 SE2d 65) (2002) (punctuation omitted).

        Dupree, 256 Ga. App. at 676 (1) (c) (citation and punctuation omitted); see also Steele v. Ga. Dep’t of Transp., 271 Ga. App. 374, 376 (609 SE2d 715) (2005) (“[The plaintiff] had the burden of proof to establish the waiver [of sovereign immunity], and the trial court’s pre-trial determination of factual issues necessary to decide the . . . motion is tested on appeal under the any evidence rule.” (citation omitted)).

       OCGA § 50-21-24 (10); see also Reidling, 280 Ga. App. at 701 (1).

        See, e.g., Reidling, 280 Ga. App. at 702 (1).

        Id. (citation and punctuation omitted).

        See Dep't of Transp. v. Mikell, 229 Ga. App. 54, 56 (1) (a) (493 SE2d 219) (1997) (“Because the plaintiffs are challenging the layout of the intersection itself and the choice of traffic control devices which control it, they are asserting that the intersection is negligently engineered and designed.”).

        Cf. Daniels v. Dep’t of Transp., 222 Ga. App. 237, 239 (2) (474 SE2d 26) (1996) (physical precedent only) (“[I]f the DOT is exempt from liability for its initial design of a highway under the Georgia Tort Claims Act, it would make little sense to permit liability for failing to change that initial design.”).

       We note that, aside from a copy of the MUTCD’s definition for “may,” the record before us is bereft of any other exhibit reflecting the MUTCD’s written requirements and policies. It is, of course, “well established that the burden is on the party alleging error to show it by the record.” Bennett v. Executive Benefits, Inc., 210 Ga. App. 429, 429 (436 SE2d 544) (1993) (citation omitted). And when the proof necessary for determination of the issues on appeal is omitted from the record, “an appellate court must assume that the judgment below was correct and affirm.” Id. (citation omitted).

        Compare Mikell, 229 Ga. App. at 58 (1) (a) (holding that plaintiffs could not rely solely on MUTCD “to establish the standard of care [when] permissive and advisory instructions are involved” and must “establish the standard of care and the violation thereof by expert testimony”), and Reidling, 280 Ga. App. at 702 (1) (plaintiff submitted expert affidavit that said, “based on [the expert’s] education and background,” that GDOT’s failure “to consider the impact of depositing. . . excess fill soil [on property] . . . constituted a failure to comply with accepted engineering and design standards”), with Ogles v. E.A. Mann & Co., 277 Ga. App. 22, 26 (2) (a) (625 SE2d 425) (2005) (affirming dismissal when “[plaintiffs] own expert testified that DOT’s design met generally accepted design or engineering standards”).

       To the extent that Hill provided varying definitions of (and methods of calculating) the width of a median, and to the extent that one or more of these methods could have resulted in the measurement of a median greater than 30 feet wide, the plaintiffs failed to include with the appellate record the relevant exhibits from this portion of Hill’s testimony. See supra note 18 and accompanying citations. The plaintiff has the burden of presenting competent evidence to establish a waiver of sovereign immunity. See Ogles, 277 Ga. App. at 26 (2) (a) (“[The design] exception requires that expert testimony or other competent evidence be submitted to show that the plan or design was not prepared in substantial compliance with generally accepted engineering or design standards. ...” (citation and punctuation omitted)). Cf. Daniels, 222 Ga. App. at 238 (1) (physical precedent only) (holding that plaintiff failed to present evidence admissible for consideration of GDOT’s negligence when plaintiffs expert relied upon guidelines adopted after relevant design plans were finalized). See generally Donaldson v. Dep’t of Transp., 236 Ga. App. 411, 412-16 (1) (b) (511 SE2d 210) (1999) (discussing admissibility and use of MUTCD when establishing standard of care).

       We further note that plaintiffs did not include the full deposition of this expert in the appellate record.

        See Mikell, 229 Ga. App. at 58 (1) (a) (“The exercise of. . . discretion involves the use of professional engineering judgment, and for that reason, it was incumbent upon the plaintiffs to present expert engineering testimony on this issue in order to establish the applicable standard of care and a breach thereof.”).

        See Dupree, 256 Ga. App. at 677 (2) (“Where and whether to install traffic lights were design decisions.” (citation and punctuation omitted)).

        See Steele, 271 Ga. App. at 376 (“[The plaintiff] had the burden of proof to establish the waiver [of sovereign immunity], and the trial court’s pre-trial determination of factual issues necessary to decide the . . . motion is tested on appeal under the any evidence rule.” (citation omitted)). Compare Dep’t of Transp. v. Brown, 267 Ga. 6, 8 (2) (471 SE2d 849) (1996) (holding, in case in which MUTCD did not contain generally accepted design standards on the relevant question, that expert testimony “that some of DOT’S actions and failures to act . . . violated generally accepted engineering standards” was sufficient to show waiver of sovereign immunity). To the extent that the plaintiffs point to the deposition of Frank Danchez, a former chief engineer for GDOT, as proof that the median at issue was more than 30 feet wide, it is unclear from his testimony whether he was referring to the median at issue or a median for Georgia 400, to which he repeatedly made reference. Additionally, Danchez’s testimony contradicted a suggestion by plaintiffs’ expert Hill that the subject median should be considered a separate intersection, demanding additional signage. Finally, Danchez testified that GDOT follows MUTCD to determine when to place signs, that he had not analyzed the subject intersection to determine whether additional signs should have been placed, and that he did not recall being involved with the design of the subject intersection.

       OCGA § 50-21-24 (9); see also Dupree, 256 Ga. App. at 679 (3).

        See Dupree, 256 Ga. App. at 669.

        See id. (explaining that warrants “describe conditions indicating the need for a traffic signal”).

        See id. at 679 (3) (“We agree that the permit exception prevented sovereign immunity from being waived as to negligence in failing to issue the permit for a traffic light after completion of [a widening project].”); see also Daniels, 222 Ga. App. at 239 (2) (physical precedent only) (“[I]f the DOT is exempt from liability for its initial design of a highway under the Georgia Tort Claims Act, it would make little sense to permit liability for failing to change that initial design.”).


text:
    A11A0814.
    FEW v. THE STATE.
    (716 SE2d 644)
    Decided September 8, 2011
   Dillard, Judge.

Following a jury trial in 1999, Anthony Mishum Few was convicted on one count of selling cocaine and was sentenced as a recidivist to life in prison. The Sentence Review Panel of Georgia subsequently reduced his sentence to 20 years. Although his conviction was previously affirmed by this Court on other grounds, Few now argues that his sentence is void because the State failed to meet its burden of proving that he was represented by counsel during a prior guilty plea upon which his recidivist sentence was based. We conclude that Few’s challenge is moot in light of the modified sentence and therefore dismiss the appeal.

Under Georgia law, “[a] sentence is void if the court imposes punishment that the law does not allow.” A sentence that falls within the prescribed statutory limits, however, is legally authorized and is not subject to review by this Court. Few’s present sentence of 20 years, as modified by the Sentence Review Panel, falls within the statutory range of sentencing for the sale of cocaine, even as a first offender. It follows, then, that any challenge that Few may have had to the original life sentence imposed by the trial court, even if meritorious, is rendered moot. Few’s appeal is therefore dismissed.

Appeal dismissed.

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

Anthony M. Few, pro se.

Lee Darragh, District Attorney, Wanda L. Vance, Assistant District Attorney, for appellee.

       At the time of Few’s sentencing, OCGA § 17-10-6 authorized him to seek review of his sentence by a three-judge panel vested with the authority to reduce the sentence imposed. In 2007, the Georgia General Assembly enacted OCGA § 17-10-6.3, which repealed OCGA § 17-10-6 and terminated the right of any defendant sentenced after July 1, 2007, to have his or her sentence reviewed by the panel. See OCGA § 17-10-6.3 (b). Subsequently, in Sentence Review Panel v. Moseley, 284 Ga. 128, 129-30 (1) (663 SE2d 679) (2008), our Supreme Court held that OCGA § 17-10-6 was unconstitutional, but further held that its ruling was to be given only prospective application. Id. at 133 (2).

        Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004) (citation and punctuation omitted).

        See, e.g., Jones, 278 Ga. at 670 (“When the sentence imposed falls within the statutory range of punishment, the sentence is not void . . . .”); Bennett v. State, 292 Ga. App. 382, 385 (1) (665 SE2d 365) (2008) (“It is well established that... if the sentence is within the statutory limits, the appellate courts will not review it.” (citation and punctuation omitted)).

       OCGA § 16-13-30 (d) (authorized sentencing range for the sale of cocaine is not less than five years nor more than thirty years imprisonment); see Moseley, 284 Ga. at 129 (1) (recognizing that the Sentence Review Panel was vested with “the actual power to change a criminal sentence”).

        See, e.g., Clark v. State, 301 Ga. App. 354, 355 (687 SE2d 593) (2009) (“[T]he general rule is that if defendant would receive no benefit by reversal of the case, it is moot.” (citation, punctuation and footnote omitted)).

       OCGA § 5-6-34 (d) (“Nothing in this subsection shall require the appellate court to pass upon questions which are rendered moot.”); see Clark, 301 Ga. App. at 355.


text:
    A11A0935.
    MARTIN-ARGAW v. THE STATE.
    (716 SE2d 737)
   Dillard, Judge.

Following trial, a jury convicted Tamerat Martin-Argaw on four counts of aggravated assault, one count of possession of a firearm during the commission of a felony, one count of burglary, and one count of aggravated stalking. Martin-Argaw appeals his convictions and the denial of his motion for new trial, arguing that fatal variances between the indictment and the evidence introduced at trial with regard to three of the aggravated-assault counts rendered that evidence insufficient to support his conviction on those counts, and further arguing that the trial court erred in admitting similar-transaction evidence of his subsequent plot to murder two of the aggravated-assault victims. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s guilty verdict, the evidence shows that Martin-Argaw and his wife married in 1998, but in 2003, their relationship began to deteriorate due to Martin-Argaw allegedly engaging in an extra-marital affair. Indeed, when confronted with this allegation, Martin-Argaw became so violent toward his wife that she called the police to intervene on several occasions. And over the next few years, Martin-Argaw and his wife’s relationship continued to spiral downward. In May 2006, Martin-Argaw’s wife obtained a temporary protective order, which prohibited him from having any direct contact with her. One month later, following a hearing, the trial court issued a six-month protective order, which prohibited Martin-Argaw from having any direct contact with his wife and further ordered that he stay away from the marital home.

On the evening of July 12, 2006, Martin-Argaw’s wife invited her friends Peter Vanderpool and Delores Elder to her home for dinner to celebrate her and Vanderpool’s recent birthdays. But not long after the three friends sat down to eat on the back deck of the house, Martin-Argaw approached the home, rushed up the stairs leading to the back deck, pulled out a pistol, and fired it at his wife and her dinner companions. As the shot was fired, Elder bravely jumped in front of Martin-Argaw’s wife, and the bullet grazed her head. Vanderpool and Martin-Argaw’s wife then quickly scrambled inside, but Martin-Argaw followed closely behind, chasing his wife as she ran toward the kitchen.

Not wanting to be shot in the back, Martin-Argaw’s wife stopped in the kitchen area near the living room, turned, and courageously faced her husband. Martin-Argaw then pulled the trigger of his gun, but, fortunately, the pistol jammed. At that same moment, Vanderpool — who had run into the living room — yelled at Martin-Argaw in an attempt to distract him, at which point Martin-Argaw grabbed a samurai sword from the mantel above the living room’s fireplace and chased Vanderpool outside. But when he was unable to catch Vanderpool, Martin-Argaw discarded the sword in some nearby bushes and fled the scene. In the meantime, Martin-Argaw’s wife and the wounded Elder managed to call the police, and, within minutes, several officers arrived.

Martin-Argaw was ultimately arrested in Kentucky by FBI agents and was brought back to Georgia. Thereafter, he was indicted on five counts of aggravated assault, with Counts 1, 4, and 5 alleging that he fired a gun at his estranged wife, Vanderpool, and Elder, as they sat on the back deck of his wife’s home; Count 2 alleging that he fired a gun at his wife in an area between the kitchen and the family room inside the home; and Count 3 alleging that he pointed the gun at his wife and pulled the trigger while she was in the kitchen area of the home. In addition, Martin-Argaw was indicted on one count of possession of a firearm during the commission of a felony (Count 6), one count of violating the Georgia Firearms and Weapons Act (Count 7), one count of burglary (Count 8), and one count of aggravated stalking (Count 9).

Prior to trial, the State filed a notice of its intent to introduce similar-transaction evidence that after his arrest, Martin-Argaw asked his cellmate to assist him in finding someone he could pay to murder his wife, his wife’s son from a previous marriage, and Vanderpool. However, unbeknownst to Martin-Argaw, his cellmate informed police about the plot. Consequently, an undercover police officer, posing as a hitman, met with Martin-Argaw and confirmed that he was seeking to pay someone to murder his wife, her son, and Vanderpool before trial. And after holding a hearing on the State’s motion, the trial court ruled that Martin-Argaw’s murder-for-hire plot was admissible as similar-transaction evidence.

During Martin-Argaw’s trial, his estranged wife and her two friends testified as to the details of the July 12, 2006 incident, and several police officers testified regarding their subsequent investigation. Additionally, Martin-Argaw’s former cellmate and the undercover officer, who posed as a hitman, testified regarding Martin-Argaw’s intention to hire someone to murder his wife, her son, and Vanderpool. Finally, Martin-Argaw testified in his own defense and claimed that his wife and her friends had fabricated their accounts of the incident. Nevertheless, at the conclusion of the trial, the jury found Martin-Argaw guilty on all counts of the indictment except for Counts 2 and 7. Thereafter, he filed a motion for new trial, which the trial court denied after conducting a hearing on the matter. This appeal follows.

1. Martin-Argaw contends that there was a fatal variance between the allegations in Counts 1 and 4 of the indictment and the evidence introduced at trial with regard to those respective aggravated-assault counts, and, therefore, that the evidence was insufficient to support his conviction on those counts. We disagree.

At the outset, we note that when a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. We do not weigh the evidence or determine witness credibility “but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.” Accordingly, the jury’s verdict will be upheld “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case[.]”

In the case sub judice, Count 1 of the indictment alleged that Martin-Argaw committed an aggravated assault upon his estranged wife “with a handgun, a deadly weapon, by firing his gun at [his wife], outside of the residence . . . Similarly, Count 4 of the indictment alleged that Martin-Argaw committed an aggravated assault upon Vanderpool “with a handgun, a deadly weapon, by firing the handgun at [Vanderpool], outside of the residence . . . .” And Count 5 of the indictment alleged that he committed an aggravated assault upon Elder “with a handgun, a deadly weapon, by firing the handgun and striking her in the head outside of the residence . . .

Martin-Argaw argues that although there was evidence he “fired” his handgun at Elder, contrary to the allegations in Counts 1 and 4 of the indictment, there was no evidence that he “fired” his handgun at his estranged wife or at Vanderpool, and, therefore, his convictions on those two counts should be reversed. This argument is wholly without merit.

It is well settled that “the act of firing a weapon into a group [makes] each individual in the group a separate victim and [justifies] a separate count of aggravated assault for each victim.” And here, the evidence showed that Martin-Argaw’s wife, Vanderpool, and Elder were all sitting together eating when Martin-Argaw rushed up onto the back deck of his wife’s house and fired his gun toward them. Thus, there was no fatal variance between the allegations in Counts 1 and 4 of the indictment and the evidence at trial, and that evidence was clearly sufficient to support Martin-Argaw’s convictions on the charges of aggravated assault alleged in those counts.

2. Martin-Argaw similarly contends that there was a fatal variance between the allegation in Count 3 of the indictment and the evidence introduced at trial with regard to that aggravated-assault count, and, therefore, that the evidence was insufficient to support his conviction on that count. Again, we disagree.

Count 3 of the indictment alleged that Martin-Argaw committed an aggravated assault upon his estranged wife “with a handgun, a deadly weapon, by pointing the handgun and pulling the trigger at [his wife] in the kitchen area of the residence . . . .” Martin-Argaw argues that, contrary to the allegations in Count 3, the evidence showed that his wife was in the living room of her home, rather than in the kitchen area, when he pointed his pistol and attempted to shoot her; and, based on this alleged fatal variance, he concludes that his conviction on Count 3 should be reversed. We are unpersuaded.

Here, Martin-Argaw’s wife initially testified that the aggravated assault alleged in Count 3 occurred “between my family room headed back toward my kitchen . . . .” Shortly thereafter, she testified that she was “between [the] kitchen and dining room area” when Martin-Argaw tried to shoot her but, fortunately, failed to do so because his pistol jammed. Accordingly, there was some evidence that the aggravated assault alleged in Count 3 occurred in the kitchen area. Moreover, “[a]ny alleged inconsistencies in the evidence and issues of [his wife’s] credibility were for the jury, not this Court, to resolve”; and the jury obviously resolved those issues against Martin-Argaw.

Furthermore, assuming arguendo that there was a variance between the allegation in Count 3 and the evidence at trial, that variance was not fatal. It is certainly true that “[a]verments in an indictment as to the specific manner in which a crime was committed are not mere surplusage and must be proved as laid, or the failure to prove the same will amount to a fatal variance and a violation of the defendant’s right to due process of law.” Our Supreme Court has long held, however, that

[t]he general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.

In this case, the part of the indictment that Martin-Argaw argues was unsupported by the evidence — i.e., the exact room of the house where this specific aggravated assault occurred — was “an unnecessary specification of a legally unnecessary fact.” Indeed, when we ignore this portion of the indictment as mere surplusage, the remainder of the indictment sufficiently apprised Martin-Argaw that he was being charged with the specific assault that occurred inside the house in which he pointed his handgun at his wife and pulled the trigger but the gun failed to fire. Accordingly, because Count 3 of the indictment informed Martin-Argaw of this aggravated-assault charge and differentiated it from the other charges so that he could not be prosecuted again for that offense, any alleged variance between the allegations and proof was not fatal.

3. Martin-Argaw further contends that the trial court erred in admitting as a similar transaction evidence of his post-arrest plot to murder his wife, her son, and Vanderpool, arguing only generally that the prejudicial effect of that evidence outweighed its probative value. We disagree.

It is well established that “[t]he decision of a trial court to admit evidence of similar transactions will be upheld unless clearly erroneous.” And under Williams v. State,

[t]o be admissible for the purposes of establishing motive, intent, course of conduct or bent of mind, the State must show (a) sufficient evidence that the similar transaction occurred and (b) sufficient connection or similarity between the similar transaction and the crime alleged so proof of the former tends to prove the latter.

Furthermore, “[w]hen considering the admissibility of similar transaction evidence, the proper focus is on the similarities, not the differences, between the separate crime and the crime in question.”

Here, the trial court found that the evidence that Martin-Argaw attempted to hire someone to murder his wife, her son, and Vander-pool was admissible to show “motive, intent, identity, course of conduct, and bent of mind where the incidents involve attempts to harm or kill the same individuals.” And based on our review of the record, the trial court’s finding was not clearly erroneous and, thus, will not be disturbed on appeal.

Judgment affirmed.

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

Decided September 8, 2011.

Clegg & Petrey, John H. Petrey, for appellant.

Daniel J. Porter, District Attorney, Stephen A. Fern, Assistant District Attorney, for appellee.

        See, e.g., Goolsby v. State, 299 Ga. App. 330, 330-31 (682 SE2d 671) (2009); see also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

        See OCGA § 16-5-21 (a) (2).

        See OCGA § 16-11-106 (b) (1).

        See OCGA § 16-11-122.

        See OCGA § 16-7-1 (a).

        See OCGA § 16-5-91 (a).

       No transcript of this hearing was included in the record.

       The jury found Martin-Argaw not guilty of the aggravated assault alleged in Count 2, and the State moved for an entry of nolle prosequi on the violation of the Georgia Firearms and Weapons Act alleged in Count 7.

        See, e.g., English v. State, 301 Ga. App. 842, 842 (689 SE2d 130) (2010).

        Lott v. State, 303 Ga. App. 775, 775 (1) (694 SE2d 698) (2010) (citation omitted).

        Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (citation and punctuation omitted).

        Scott v. State, 302 Ga. App. 111, 114 (2) (690 SE2d 242) (2010) (citation and punctuation omitted); see also Robertson v. State, 245 Ga. App. 649, 650 (1) (538 SE2d 755) (2000); Pace v. State, 239 Ga. App. 506, 509 (6) (521 SE2d 444) (1999).

        Walker v. State, 304 Ga. App. 45, 47 (695 SE2d 373) (2010) (citation and punctuation omitted); see also Lilly v. State, 285 Ga. App. 427, 429 (646 SE2d 512) (2007).

        See Walker, 304 Ga. App. at 47; Bright v. State, 301 Ga. App. 204, 205-06 (1) (687 SE2d 208) (2009).

        Quiroz v. State, 291 Ga. App. 423, 425 (1) (662 SE2d 235) (2008) (footnote and punctuation omitted).

        DePalma v. State, 225 Ga. 465, 469-70 (3) (169 SE2d 801) (1969) (citation and punctuation omitted).

        Quiroz, 291 Ga. App. at 425 (1) (footnote and punctuation omitted).

        See id. at 424-26 (holding that variance between indictment alleging that defendant held knife to victim’s neck and proof that defendant only pointed knife at victim was not fatal to conviction for aggravated assault); Nash v. State, 222 Ga. App. 766, 766-67 (1) (476 SE2d 69) (1996) (holding that variance between indictment alleging that defendant threw a knife at the victim and proof that the knife fell out of the defendant’s hand as he was stabbing the victim was not fatal to conviction for aggravated assault).

        Payne v. State, 285 Ga. 137, 138 (674 SE2d 298) (2009).

       261 Ga. 640 (409 SE2d 649) (1991).

        Payne, 285 Ga. at 138; see Williams, 261 Ga. at 642 (2) (b).

        Id.

        See Davis v. State, 279 Ga. 786, 787-88 (3) (621 SE2d 446) (2005) (finding that evidence of defendant’s murder of witnesses to the murder for which he was being tried was admissible to show defendant’s course of conduct and bent of mind); Rainey v. State, 179 Ga. App. 584, 586 (4) (347 SE2d 341) (1986) (holding that evidence of assault on victim that was subsequent to the arson for which defendant was tried was admissible to show defendant’s bent of mind toward violence directed at the victim); see also McCoy v. State, 273 Ga. 568, 571 (5) (544 SE2d 709) (2001) (holding that “evidence of a threat to a witness by the defendant is relevant as showing an attempt to prevent a witness from testifying and avoid punishment for the crime”); Fugitt v. State, 256 Ga. 292, 293-94 (1) (a) (348 SE2d 451) (1986) (same).


author: MILLER, Presiding Judge.

text:
    A11A1037.
    OGLESBY v. THE STATE.
    (716 SE2d 742)
   MILLER, Presiding Judge.

Following a stipulated bench trial, Perry Wayne Oglesby was convicted of trafficking in methamphetamine (OCGA § 16-13-31 (e)). On appeal, Oglesby contends that the trial court erred in denying his motion to suppress evidence since it was seized during an illegal detention. We discern no error and affirm.

When reviewing a trial court’s decision on a motion to suppress, this Court’s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.

(Citations and punctuation omitted.) Brown v. State, 301 Ga. App. 82, 82-83 (686 SE2d 793) (2009).

So viewed, the record evidence shows that on the afternoon of March 9, 2009, an officer with the Clayton County Police Department was patrolling in a residential area when he observed Oglesby emerge from behind a vacant private residence. The officer was aware that the residence had been vacant for a while, stolen vehicles had been parked at the residence on prior occasions, and a murder had occurred at a location directly behind the residence. The officer was also aware of prior reports of vandalism and thefts of appliances and copper from other vacant residences in the area. The officer made contact with Oglesby, suspecting that he may have been engaging in criminal activity at the residence.

Oglesby appeared to be very nervous, but he agreed to approach the officer’s patrol car and answered the officer’s questions. In response to the officer’s inquiry, Oglesby informed the officer that he was coming from a nearby store, where he had purportedly purchased water, ice cream, and a sports nutrition drink. The officer noticed, however, that none of the described items were in Oglesby’s possession. Oglesby engaged the officer in a rambling discussion, advising that he had previously spoken with the officer’s commander and had been harassed by someone in a nearby apartment complex. During the conversation, the officer asked Oglesby whether he had any weapons in his possession. Oglesby responded that he did have a weapon and began to reach inside his back pocket. The officer stopped Oglesby from reaching into the pocket, and obtained Oglesby’s consent to a pat-down search of his person. During the pat-down search, the officer located a knife in Oglesby’s back pocket.

The officer then requested backup from other officers. As the officer continued the pat-down search, he felt an object in Oglesby’s front pocket. The officer obtained Oglesby’s consent to remove the object and discovered that it was approximately 45 grams of methamphetamine.

Oglesby was arrested and charged with trafficking in methamphetamine. He filed a pretrial motion to suppress the drug evidence. Following a hearing, the trial court denied the motion. Oglesby challenges the trial court’s ruling on the motion, contending that the evidence was obtained during an illegal detention. We disagree.

There are three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause. In the first level, police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave. The second tier occurs when the officer actually conducts a brief investigative Terry [ \ stop of the citizen. In this level, a police officer, even in the absence of probable cause, may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity. In determining whether a police-citizen encounter constituted a seizure, a court must answer whether, considering all the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.

(Punctuation and footnotes omitted.) Cutter v. State, 274 Ga. App. 589, 591-592 (1) (617 SE2d 588) (2005).

In this case, the trial court found that Oglesby’s encounter with the officer was of the first tier, involving no coercion or seizure. The trial court’s finding was authorized. The evidence presented at the hearing established that Oglesby engaged in a consensual conversation with the officer. There was no evidence that Oglesby made any attempt to leave or that the officer physically prevented him from doing so. Likewise, there is no evidence that the officer threatened, commanded, or forced Oglesby to approach and speak with him. Based upon these circumstances, no seizure occurred and the officer was authorized to ask Oglesby a few questions during the consensual encounter without triggering Fourth Amendment scrutiny. See Postell v. State, 279 Ga. App. 275, 276-277 (1) (630 SE2d 867) (2006); Cutter, supra, 274 Ga. App. at 593-594 (1); State v. McKinney, 265 Ga. App. 322, 322-324 (593 SE2d 865) (2004).

Oglesby nevertheless argues that based upon the officer’s own admission, a second-tier encounter occurred and thus, an articulable suspicion was required to justify his detention. In this regard, Oglesby points to the officer’s affirmative responses to defense counsel’s leading cross-examination questions, indicating that the officer “detained” him to ask some questions and that he was not free to leave because the officer was going to conduct an investigation. The officer’s conflicting testimony on cross-examination, however, was not fully dispositive.

[Wjhen analyzing whether a person has been unconstitutionally seized, we are not bound by the [investigating] officer’s subjective belief. Rather, the touchstone of any Fourth Amendment analysis is a determination of whether an officer’s conduct is reasonable based upon all of the objective facts.

(Citations and punctuation omitted.) Johnson v. State, 299 Ga. App. 474, 478 (682 SE2d 601) (2009). See also Postell, supra, 279 Ga. App. at 277 (1), n. 3 (“The fact that the officer, a nonlawyer, used the word ‘stop’ to describe his initial encounter with appellant does not mandate a finding that the officer made a Terry stop.”); In the Interest of A. A., 265 Ga. App. 369, 372 (1) (593 SE2d 891) (2004) (“[T]he officer’s subjective belief that he had authority to detain the juveniles is not controlling. The test is whether, in view of all the circumstances surrounding the incident, a reasonable person believes that he is not free to leave.”) (citations and punctuation omitted). Moreover, the pertinent inquiry is based upon the objective facts known to the officer at the time of the encounter, not his post-hoc characterizations or opinions concerning those facts given at the suppression hearing. See Cole v. State, 254 Ga. App. 424, 426 (2) (562 SE2d 720) (2002). The officer’s testimony describing the encounter and his exchange with Oglesby provided objective facts illustrating that the encounter was consensual, noncoercive, and of a nature that would not lead a reasonable person to believe that he was not free to leave. See Postell, supra, 279 Ga. App. at 276-277 (l).

But even if we were to otherwise conclude that the encounter was a second-tier investigative stop, or escalated into such when the officer prevented Oglesby from reaching into his pocket, the evidence established that the officer had a reasonable articulable suspicion which justified Oglesby’s detention. “During a second-tier encounter, a police officer may stop a person and briefly detain him or her if the officer has a particularized and objective basis for suspecting the person is involved in criminal activity.” (Citation and punctuation omitted.) Brown, supra, 301 Ga. App. at 84-85. The determination of whether articulable suspicion exists must be based upon all the circumstances gathered from objective observations and the modes or patterns of operation of certain kinds of lawbreakers. See State v. Causey, 246 Ga. App. 829, 832 (1) (b) (540 SE2d 696) (2000).

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

(Citations and punctuation omitted.) Id. at 832 (1) (b).

Here, Oglesby was observed coming from behind a private residence that was not his own and was not a public location. The trained officer testified that he was aware that the private residence was vacant and that criminal activity had previously occurred at and directly behind the residence. The officer was also aware of prior reports in which vandalism and stolen appliances and copper had occurred at other vacant residences. Based upon the officer’s observations and experience, he suspected that Oglesby’s presence at the private residence may have been unauthorized and that he may have been engaging in criminal activity, such as criminal trespass, burglary, or vandalism at the vacant residence. The officer drew a reasonable conclusion based upon his experience and the objective facts before him, and the totality of the circumstances provided sufficient articulable suspicion to support Oglesby’s brief detention. See Bishop v. State, 299 Ga. App. 241, 242-243 (682 SE2d 201) (2009) (concluding that officer had articulable suspicion justifying a stop when the officer observed the defendant leaving the driveway of a vacant lot where there had been prior incidents of illegal dumping, abandoned vehicles, and thefts; based upon the officer’s knowledge and experience, she believed that the defendant may have been engaging in illegal dumping on the property); McKinney, supra, 265 Ga. App. at 324 (affirming the denial of the defendant’s motion to suppress where the defendant and his companion were standing in the rear of a fenced private property posted against loitering and their responses to the officer’s inquiry led the officer to believe that they were involved in criminal activity). When Oglesby further responded that he was carrying a knife and attempted to reach into his pocket to retrieve it, the officer was authorized to continue the detention and to perform the pat-down search for his safety. See Lewis v. State, 307 Ga. App. 593, 595 (705 SE2d 693) (2011) (concluding that the defendant’s detention and pat-down search was authorized when he appeared extremely nervous, grabbed his pants pocket, and provided an implausible explanation for his presence on the property which had previously been robbed numerous times).

Decided September 8, 2011.

Marc A. Pilgrim, for appellant.

Since the evidence established that Oglesby was not unlawfully detained, the denial of his motion to suppress was proper.

Judgment affirmed.

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

Tracy Graham-Law son, District Attorney, Billy J. Dixon, Assistant District Attorney, for appellee.

       Following his conviction, Oglesby filed an untimely notice of appeal. As a result, his prior appeal was dismissed. Upon remittitur, Oglesby filed a motion for an out-of-time appeal, which the trial court granted. The instant appeal then ensued.

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

       Compare Thomas v. State, 301 Ga. App. 198, 201 (1) (687 SE2d 203) (2009) (concluding that a second-tier encounter occurred based upon not only the arresting officer’s unequivocal testimony that the defendant was not free to leave, but also evidence that the officer had physically blocked the defendant’s path, demanded that the defendant submit to a pat-down search, and physically restrained the defendant).


author: Miller, Presiding Judge.

text:
    A11A1086.
    GRADY v. THE STATE.
    (716 SE2d 747)
   Miller, Presiding Judge.

Ernest Grady, appearing pro se, appeals the trial court’s order denying his “Motion for Modification and Reduction of Sentence[ ]” pursuant to OCGA § 17-10-1 (f). For the reasons that follow, we affirm.

The record shows that on February 23, 2010, Grady entered a guilty plea to charges of conspiracy to distribute a controlled substance (OCGA § 16-13-33), trafficking in cocaine (OCGA § 16-13-31 (a) (1)), three counts of sale of controlled substance (OCGA § 16-13-30 (b)), and two counts of use of a communication facility in the commission of a felony (OCGA § 16-13-32.3 (a)). On March 26, 2010, he was sentenced as a recidivist under OCGA § 17-10-7 (c) to an aggregate term of 30 years, to serve 20 years of incarceration and the balance on probation, along with a fine in the amount of $300,000 and surcharges. On September 28, 2010, approximately six months after the entry of his sentence, Grady filed a pro se “Motion for Modification and Reduction of Sentence[ ].” Grady’s motion was purportedly filed pursuant to OCGA § 17-10-1 (f), which provides as follows:

Within one year of the date upon which the sentence is imposed, or within 120 days after receipt by the sentencing court of the remittitur upon affirmance of the judgment after direct appeal, whichever is later, the court imposing the sentence has the jurisdiction, power, and authority to correct or reduce the sentence and to suspend or probate all or any part of the sentence imposed. Prior to entering any order correcting, reducing, or modifying any sentence, the court shall afford notice and an opportunity for a hearing to the prosecuting attorney. Any order modifying a sentence which is entered without notice and an opportunity for a hearing as provided in this subsection shall be void. This subsection shall not limit any other jurisdiction granted to the court in this Code section or as provided for in subsection (g) of Code Section 42-8-34.

Since Grady’s motion was filed within one year of when his sentence was imposed, it was timely based upon the time limitation set forth in the statute.

Decided September 8, 2011.

Ernest Grady, pro se.

Significantly, however, Grady’s enumerations of error in this appeal reveal that he does not seek to challenge his sentence, but rather, the conviction on which the sentence is based. In this regard, Grady contends that his motion was erroneously denied since the evidence was insufficient to sustain his conviction, the State failed to set forth a factual basis for the plea, and his trial counsel provided ineffective assistance by failing to make a reasonable investigation in the case. Notwithstanding his contentions, “the authority granted to trial courts by OCGA § 17-10-1 (f) to modify sentences . . . does not, on its face, include the power to vacate the conviction on which the sentence is based.” (Punctuation and footnote omitted.) Ellison v. State, 283 Ga. 461 (660 SE2d 373) (2008).

Regardless of how Grady has characterized his motion, he is in essence seeking to withdraw his guilty plea and to vacate the underlying conviction. However, he failed to file a timely motion to withdraw his guilty plea in the trial court below. A motion to withdraw a guilty plea must be filed within the term of court in which the sentence was imposed. See Williams v. State, 301 Ga. App. 849, 850-851 (1) (689 SE2d 124) (2010); Bonner v. State, 268 Ga. App. 170, 171-172 (1) (601 SE2d 478) (2004). Grady was sentenced in March 2010, and the trial court’s term of court has since expired. See OCGA § 15-6-3 (17) (the terms of court for the Chatham County Superior Court commence on the “[fjirst Monday in March, June, September, and December” of each year). Since Grady failed to file a timely motion to withdraw his guilty plea, his only available means to challenge the judgment of conviction is through habeas corpus proceedings. See Williams, supra, 301 Ga. App. at 850-851 (1); Manry v. State, 226 Ga. App. 445, 447 (487 SE2d 80) (1997). No error has been shown from the trial court’s denial of Grady’s motion.

Judgment affirmed.

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

Larry Chisolm, District Attorney, Jeffrey S. Hendrix, Assistant District Attorney, for appellee.

       Notably, Grady’s recividist sentence falls within the statutory ranges allowed for each of his crimes. See OCGA §§ 16-13-30 (d); 16-13-31 (a) (1) (B), (h); 16-13-32.3 (b); 16-13-33; 17-10-7 (c).


text:
    A11A1239.
    OGLESBY et al. v. DEAL et al.
    (716 SE2d 749)
   MILLER, Presiding Judge.

Larry and Susan Deal, appellees-paternal grandparents of the child G. D., filed a petition for grandparents’ visitation rights against Tina Marie Oglesby, appellant-maternal grandmother of G. D., and Summer Nicole Thornburg, appellant-mother of G. D. Oglesby and Thornburg sought to have the petition dismissed for lack of personal jurisdiction and insufficient service of process, or in the alternative, to have the case transferred on the ground of improper venue. The trial court denied the motion, but granted a certificate of immediate review. We granted appellants’ application for interlocutory review under Spivey v. Hembree, 268 Ga. App. 485, 486, n. 1 (602 SE2d 246) (2004), and this appeal ensued. In two enumerations of error, Oglesby and Thornburg assert that the trial court erred in finding that Thornburg was subject to personal jurisdiction and properly served with process, and that venue was proper with respect to Oglesby. This Court finds that service was not effective as to Thornburg and that venue was improper as to Oglesby, and accordingly, we reverse.

A preliminary hearing over defenses of lack of jurisdiction over the person or subject matter and improper venue whether made in a pleading or by motion may be heard and determined before trial on the application of any party. At such hearing factual issues shall be determined by the trial court. Factual determinations of the trier of fact will be reversed only where the evidence demands a contrary finding, and when the trial judge conducts a hearing on a motion to dismiss or transfer for improper venue, his findings, as a trier of fact, are tested by the any evidence rule.

(Citations and punctuation omitted.) McLendon v. Albany Warehouse Co., 203 Ga. App. 865, 866 (1) (418 SE2d 130) (1992). Similarly, we will not disturb the trial court’s factual findings regarding the sufficiency of service if there is evidence to support them. Hardin Constr. Group v. Fuller Enterprises, 233 Ga. App. 717, 721-722 (2) (505 SE2d 755) (1998).

The evidence of record shows that G. D. was born on February 10, 2010, and has resided with Oglesby since that time. Until approximately May 2010, Oglesby resided at a modular home located at 129 Godley Road, Bloomingdale, Georgia. In May 2010, she and her husband moved to a new home that was located on the same road as the modular home, at 109 Godley Road, Bloomingdale, Georgia. Although on the same road, the homes were in different counties. The modular home was located in Effingham County; the new home was located in Chatham County (although only about 200 yards from the Effingham County line). On September 22, 2010, Oglesby completed a petition for temporary letters of guardianship of G. D., which she filed in the Probate Court of Effingham County; she was appointed as G. D.’s temporary guardian on the same day.

On October 18, 2010, the Deals filed a petition for grandparents’ visitation rights in the Superior Court of Effingham County. The evidence shows that Oglesby was personally served with this action at 129 Godley Road in Effingham County. Although the evidence reflects that Thornburg moved to Arizona on October 7, 2010, the sheriff purported to serve Thornburg by leaving the summons with Oglesby at 129 Godley Road.

In their answer to the petition, Oglesby and Thornburg raised the defenses of insufficiency of service of process, lack of personal jurisdiction, and improper venue; they sought to have the case either dismissed or transferred to the Superior Court of Chatham County. Following a hearing on venue, the trial court found that Oglesby and Thornburg were both residents of Effingham County at the time the Deals filed their petition, and that venue was therefore proper in Effingham County. In its subsequent order denying the motion to transfer the case to the Superior Court of Chatham County, the trial court also expressly found that it had personal jurisdiction over Oglesby and Thornburg, and that service of process was sufficient.

1. Oglesby and Thornburg argue that Thornburg was not subject to the jurisdiction of the trial court and was not properly served. Although we find that the trial court was authorized to obtain personal jurisdiction over Thornburg pursuant to Georgia’s long arm statute, we conclude that she was not properly served with process.

The evidence below shows that Thornburg resided with her mother (Oglesby), at 129 Godley Road, Effingham County, from approximately October 2009 through October 7, 2010. On October 7, 2010, Thornburg moved to Arizona to live with her grandmother and attend college. Oglesby testified that she had purchased Thornburg’s one-way airline ticket to Arizona. According to Oglesby, Thornburg’s intent was to live in Arizona permanently and that she had neither returned, nor desired to return, to Georgia.

Under the Georgia long arm statute, a “nonresident” is an individual

not residing [or] domiciled ... in this state at the time a claim or cause of action under Code Section 9-10-91 arises . . . [or] an individual . . . who, at the time a claim or cause of action arises under Code Section 9-10-91, was residing [or] domiciled ... in this state and subsequently becomes a resident [or] domiciled . . . outside of this state as of the date of perfection of service of process as provided by Code Section 9-10-94.

OCGA § 9-10-90. Because the long arm statute defines “nonresident” in the disjunctive, “either a change in residence or change in domicile would suffice to make a person a nonresident.” Cooper v. Edwards, 235 Ga. App. 48, 50 (508 SE2d 708) (1998). And while “a concurrence of actual residence and intent to remain is necessary to acquire a domicile,” the same is not true to establish residence. Id. Indeed, “a person may have several residences which are not necessarily permanent or in the same locale as the domicile.” Id. Thus, regardless of whether Thornburg’s domicile remains in Georgia, she has been an Arizona resident since early October 2010. See id. at 49-50 (holding that a defendant, who was incarcerated in South Carolina, was a resident of that state, regardless of whether his domicile remained in Georgia, and was therefore a “nonresident” within the meaning of the long arm statute). Accordingly, Thornburg is a nonresident subject to our long arm statute.

The provisions of the long arm statute further control the scope of personal jurisdiction that Georgia courts may exercise over nonresidents by requiring an out-of-state defendant to do certain acts, as delineated by the statute, within the state of Georgia before she can be subjected to personal jurisdiction in Georgia. See Innovative Clinical &c. Svcs. v. First Nat. Bank &c., 279 Ga. 672, 673 (620 SE2d 352) (2005). These acts are enumerated in OCGA § 9-10-91, which reads in relevant part:

Has been subject to the exercise of jurisdiction of a court of this state which has resulted in an order of alimony, child custody, child support, equitable apportionment of debt, or equitable division of property if the action involves modification of such order and the moving party resides in this state or if the action involves enforcement of such order notwithstanding the domicile of the moving party.

(Emphasis supplied.) OCGA § 9-10-91 (6). Here, a Georgia probate court issued an order granting Oglesby temporary custody of Thorn-burg’s minor son, G. D. To the extent the Deals sought to have the superior court issue another order concerning G. D., specifically for grandparents’ visitation rights, the Deals’ action against Thornburg involved modification of the probate court’s temporary custody order. Accordingly, the underlying action against Thornburg fell within the purview of subsection (6) of the long arm statute.

Of course, before permitting the exercise of long-arm jurisdiction, due process requires that a defendant, if she is not present in the forum state, have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.

(Citation, punctuation and footnote omitted.) Cooke v. Cooke, 277 Ga. 731, 732-733 (594 SE2d 370) (2004). In this case, the trial court found that both Thornburg and G. D. had significant contacts with Georgia. We agree. Thornburg was born in Georgia and lived her entire life in Georgia until she moved to Arizona for college in October 2010. Thornburg gave birth to G. D. in Georgia and resided with him at her mother’s home in Georgia. Significantly, prior to moving to Arizona, Thornburg subjected herself to the jurisdiction of the Georgia probate court when she and her mother filed a petition for letters of temporary guardianship of G. D. Moreover, although G. D. has been out to visit Thornburg in Arizona, he still continues to reside in Georgia with Oglesby. We conclude that there “is a sufficient basis upon which to conclude that the exercise of long-arm jurisdiction over [Thornburg] comports with due process precepts of ‘fair play’ and ‘substantial justice.’ ” (Footnote omitted.) Id. at 733.

Therefore, the Deals were required to serve Thornburg pursuant to the long arm statute, under which a plaintiff must serve “process on a person residing outside the state in the same way that someone is served inside the state, so long as the service outside the state is made by a person authorized to do so by the laws of that state.” Aucoin v. Connell, 209 Fed. Appx. 891, 894 (11th Cir. 2006) (citing OCGA § 9-10-94). This means that the Deals had to serve Thornburg “personally, or by leaving copies thereof at [Thornburg’s] dwelling house or usual place of abode.” OCGA § 9-11-4 (e) (7).

As reflected by the sheriffs November 3, 2010 return of service, the Deals attempted to serve Thornburg by having the sheriff leave a copy of the summons and petition with Oglesby, Thornburg’s mother, at 129 Godley Road, Bloomingdale, Georgia. Although the sheriffs return of service provided prima facie proof of proper service, “it is not conclusive and may be traversed by proof that such facts are untrue.” Yelle v. U S. Suburban Press, 216 Ga. App. 46, 47 (453 SE2d 108) (1995). “When a defendant in a lawsuit challenges the sufficiency of service, he bears the burden of showing improper service. The return can only be set aside upon evidence which is not only clear and convincing, but the strongest of which the nature of the case will admit.” (Citation and punctuation omitted.) Id. Such evidence was presented here. Notably, Oglesby and her husband testified that as of November 3, 2010, Thornburg was no longer residing with them, as Thornburg had moved to Arizona on October 7, 2010, to attend college and live with her grandmother. Upon the sheriffs attempt to serve Thornburg on November 3, 2010, Oglesby specifically told the sheriff that Thornburg “doesn’t live here. She’s living with her grandmother.” Moreover, the record contains Thorn-burg’s airline receipt for a one-way ticket to Arizona on October 7, 2010. This was sufficient evidence to rebut the Deals’ prima facie case.

The burden then shifted back to the Deals to show that service was proper. McRae v. White, 269 Ga. App. 455, 458 (604 SE2d 291) (2004). The Deals, however, submitted no evidence apart from the sheriffs return of service and thus did not carry their burden. Aucoin, supra, 209 Fed. Appx. at 894. Therefore, the service as to Thornburg was improper, and the portion of the trial court’s order finding otherwise must be reversed.

2. Oglesby and Thornburg also contend that Oglesby was a resident of Chatham County, Georgia, and that the trial court therefore erred in finding venue to be proper in Effingham County. We agree.

Venue is appropriate in the county where the defendant resides. Ga. Const, of 1983, Art. VI, Sec. II, Par. VI. “In general, one’s legal residence for the purpose of being sued in Georgia is the same county as his or her domicile.” Davis-Redding v. Redding, 246 Ga. App. 792, 793 (1) (542 SE2d 197) (2000). “Although domicile is a mixed question of law and fact which is ordinarily for a jury where the evidence is in conflict, domicile should be determined by the trial court as a matter of law when the evidence establishes a plain and palpable case.” Dozier v. Baker, 283 Ga. 543, 544 (2) (661 SE2d 543) (2008).

Here, the trial court made specific factual findings at the venue hearing, concluding that the parties continue to vote and request services from Effingham County and that the geographic location of the 129 Godley Road home was such that it was “adjacent, a football field or so from the county line.” Such evidence, however, is not controlling as to whether Oglesby remained domiciled in Effingham County at the time the Deals filed their petition against her. To the contrary, the plain and palpable evidence demanded a finding that Oglesby had in fact changed her domicile to Chatham County at the time the petition was filed.

To acquire domicile, it is necessary only to have “a concurrence of actual residence and intent to remain. ...” Cooper, supra, 235 Ga. App. at 50. Likewise, “[t]he domicile of a person sui juris may be changed by an actual change of residence with the avowed intention of remaining at the new residence.” OCGA § 19-2-1 (b). Here, both Oglesby and her husband testified that in approximately May 2010, they moved out of their 129 Godley Road modular home and into a new home they built at 109 Godley Road. According to the certificate of occupancy that the city issued to the Oglesbys on March 23, 2010, their 109 Godley Road home was located in Chatham County. Oglesby testified that she would consider herself a resident of Chatham County as of the date she and her husband moved into the 109 Godley Road home. Thus, the direct evidence shows that as of the time the Deals filed their petition for visitation rights, Oglesby actually resided, and intended to remain, in Chatham County.

Contrary to the Deals’ arguments otherwise, Oglesby’s evidence is not refuted by the fact that she has continued to hold herself out as a resident of Effingham County. Specifically, the Deals point to Oglesby’s September 2010 petition for temporary guardianship of G. D., which she filed in the Probate Court of Effingham County. Oglesby does not deny that by completing this September 2010 petition, she listed her address as 129 Godley Road, and that she swore under oath that she was a resident of Effingham County. The Deals also proffer evidence that Oglesby’s children, with whom she resided at her Chatham County address, continued to attend an Effingham County school.

The Deals’ evidence shows only that Oglesby continued to utilize her 129 Godley Road residence address in order to retain certain benefits associated with residency in Effingham County. And while a person may have only one domicile, she may have more than one residence. Dozier, supra, 283 Ga. at 545. Indeed, unlike domicile, “a person may have several residences which are not necessarily permanent or in the same locale as the domicile.” Cooper, supra, 235 Ga. at 50.

Thus, because the evidence of record shows that Oglesby was domiciled in Chatham County as of the time the Deals filed their petition for visitation rights, “we conclude that the evidence of record demands a contrary finding as to the mixed question of law and fact concerning the existence of venue.” McLendon, supra, 203 Ga. App. at 868 (2). Therefore, we reverse the judgment below and remand this case with direction that the trial court transfer it to the Superior Court of Chatham County. See Ward v. Ward, 194 Ga. App. 669, 671 (2) (391 SE2d 480) (1990) (“[W]here an action is brought and improper venue is alleged, the Uniform Transfer Rules apply, and the action is transferred rather than dismissed.”) (citation and punctuation omitted).

Decided September 8, 2011.

Adam P. Cerbone, for appellants.

Dennis G. Dozier, for appellees.

Judgment reversed and case remanded with direction.

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

       In addition to the modular home, Oglesby’s husband testified that his place of business continues to be located at 129 Godley Road, Bloomingdale, Georgia.

       The evidence shows that G. D.’s father died before G. D.’s birth.

       According to Oglesby, the sheriff did so even after she told him that Thornburg “doesn’t live here. She’s living with her grandmother.”

       Although visitation is considered a custody issue under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), see Daniels v. Barnes, 289 Ga. App. 897, 899, n. 1 (658 SE2d 472) (2008) (citing OCGA § 19-9-41 (3)), we note that this Act does not provide a basis for the trial court’s jurisdiction here. We have previously held that
      [u]nder the UCCJEA, one basis for a Georgia court’s exercise of jurisdiction to make an initial child custody determination is if Georgia is the “home state of the child on the date of the commencement of the proceeding.” OCGA § 19-9-61 (a) (1). . . . That court then retains “exclusive, continuing jurisdiction (of) the determination” if the first determination was made “consistent with” OCGA § 19-9-61 (or another Code section not applicable here) so long as either the child or a parent resides in the state or either the child, the parents, or a person acting as a parent has a significant connection with Georgia and substantial evidence regarding the child is still available here. OCGA § 19-9-62 (a). Under these circumstances, personal jurisdiction over the parties for a modification of custody is not required. OCGA § 19-9-61 (c). . . .
      Id. at 899. The trial court in this case, however, never made a previous child custody determination as to G. D.; rather, it was the probate court that made the initial custody determination when it issued letters of temporary guardianship to Oglesby. See OCGA § 19-9-41 (3), (8) (defining “child custody determination” and “initial determination”).

       We note that there is no dispute that Thornburg timely asserted the defense of insufficiency of service of process by raising the same in her answer to the Deals’ petition for visitation rights of G. D. See Yelle, supra, 216 Ga. App. at 46 (“[Defendant’s] answer to the complaint. . . was sufficient to raise the defense of insufficient service of process.”) (citing OCGA § 9-11-12 (b)).

       We note that the question of venue cannot be answered by the Georgia Child Custody Intrastate Jurisdiction Act, OCGA § 19-9-20 et seq., which “addresses only where complaints seeking a change of custody which are filed by or against the legal custodian of the child should be brought.” Gordon v. Gordon, 269 Ga. App. 224, 225 (2) (603 SE2d 732) (2004) (citing OCGA § 19-9-23 (a), (b)). “A legal custodian is defined in the Act as ‘a person, including, but not limited to, a parent, who has been awarded permanent custody of a child by a court order.’ ” Id. (citing OCGA § 19-9-22 (2)). Because Oglesby has only temporary custody of G. D., “there is no ‘legal custodian’ as that term is defined in the Act, and the provisions of the Act that govern the filing of a complaint seeking a change of custody do not apply.” Id.

       We note that the trial court’s finding as to voting concerns only Oglesby’s husband and the fact that he voted in November 2010 as a resident of Effingham County. Such evidence, however, is not determinative of Oglesby’s domicile. See Cooper, supra, 235 Ga. App. at 49 (noting that neither domicile nor residence of one spouse is presumed to be that of the other). Oglesby testified that she has never in her life voted.

       According to Oglesby, however, since becoming aware that she was required to file her temporary guardianship petition in Chatham County, she has informed the probate court of her error.

       At the very least, Oglesby’s testimony demonstrates that her conduct was a result of her lack of awareness that the 109 Godley Road address was located in Chatham County rather than Effingham County.