author: Ray, Judge.

text:
    A12A1141.
    PAK et al. v. GEORGIA DEPARTMENT OF BEHAVIORAL HEALTH & DEVELOPMENTAL DISABILITIES.
    (731 SE2d 384)
   Ray, Judge.

Myong Hui Pak died on February 11, 2009, as a result of burn injuries inflicted by her adult daughter, Na Yong Pak. Myong Hui Pak’s son, Chin Pak, individually and as the administrator of his mother’s estate, filed a wrongful death action against the Georgia Department of Behavioral Health & Developmental Disabilities (“DBHDD”), alleging that his mother’s death resulted from the DBHDD’s negligent psychiatric treatment of Na Yong Pak. The DBHDD moved to dismiss Chin Pak’s complaint, claiming that the action was barred by sovereign immunity. The trial court granted the motion, and Chin Pak appeals. Because we are bound by our prior decisions and those of the Supreme Court of Georgia on this issue, we affirm.

It is well settled that

[t]he party seeking to benefit from a waiver of sovereign immunity has the burden to establish waiver, and any suit brought to which an exception applies is subject to dismissal pursuant to OCGA § 9-11-12 (b) (1) for lack of subject matter jurisdiction. The trial court’s ruling on the motion to dismiss is reviewed de novo, while factual findings are sustained if there is evidence supporting them.

The State’s waiver of sovereign immunity for tort claims is set forth in OCGA § 50-21-23 (a), the Georgia Tort Claims Act. Thirteen exceptions to the waiver are enumerated in OCGA § 50-21-24, and among them is the “assault and battery” exception, which says that “[t]he state shall have no liability for losses resulting from . . . [ajssault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, or interference with contractual rights.” This exception has been interpreted to mean that “where a loss results from assault or battery, there is no waiver of sovereign immunity, even though a private individual or entity would be liable under like circumstances.”

This Court has consistently held that in determining whether the exception for assault and battery applies, “the focus is not on the government action taken or the duty allegedly breached by the government, but on the act causing the underlying loss, and it is not necessary that such act have been committed by a state officer or employee.” The Supreme Court of Georgia has affirmed this reasoning, explaining that

subsection (7) is not limited in application to acts taken by a State officer or employee but covers all losses resulting from the torts enumerated therein. The focus, therefore, is not on the duty allegedly breached by the State but on the act causing the underlying loss regardless of who committed the act.

In Youngblood, the plaintiff placed her mentally disabled daughter in a residential home sponsored by a state entity. The daughter was subsequently beaten while at this residential home, and the plaintiff sued the state entity. The Supreme Court of Georgia found that because the underlying loss was the beating of the victim, and because this act constituted a battery, the state entity was immune from suit for any alleged negligence that may have occurred prior to the loss.

These cases are indistinguishable and controlling. Here, Na Yong Pak had a history of mental illness and was diagnosed with paranoid schizophrenia and hallucinations after being involuntarily committed to Georgia Regional Hospital (“GRH”), a facility run by the DBHDD, in December 2008. Na Yong Pak’s medical records at GRH indicate that while she was a patient she did not participate in her scheduled therapy, refused to take her medications, did not attend psychiatric sessions with hospital doctors, and was considered a danger to others. Despite objections from her family, and although she continued to refuse medication or seek treatment, Na Yong Pak was discharged from GRH on January 29, 2009. On February 10, twelve days after being discharged, Na Yong Pak doused her mother in gasoline and set her on fire. Because the act causing the underlying loss in this case — Na Yong Pak’s setting Myong Hui Pak on fire — constitutes an assault or battery, the exception in OCGA § 50-21-24 (7) to the waiver of sovereign immunity applies.

Chin Pak argues that his complaint should not have been dismissed because the loss of which he complained was the result of an action involving murder, and the legislature did not intend to include the action of murder under the definition of assault or battery in OCGA § 50-21-24 (7). This argument, however, has been decided and rejected by this Court. Chin Pak also asks us to disregard Young-blood. But this Court has no authority to overrule or modify a decision made by the Supreme Court of Georgia, as “[t]he decisions of the Supreme Court shall bind all other courts as precedents.” This case is indistinguishable from Youngblood, and “we are constrained

Decided August 27, 2012

Henry, Spiegel & Milling, Marla M. Eastwood, for appellants.

Samuel S. Olens, Attorney General, J. David Stubins, Assistant Attorney General, for appellee.

to follow the holdings of our Supreme Court and apply its construction of the applicable statutes to the case at hand.” While we sympathize with the tragic circumstances of this case,

[sovereign immunity is a harsh doctrine, not an equitable one. Indeed, it is just the opposite of equity — it is the state declaring that it cannot be sued even where it would otherwise be liable. Nevertheless, it is a constitutionally recognized doctrine, and the constitution expressly provides that immunity for tort claims can be waived only by a legislative act specifically providing for such waiver and setting forth the extent thereof.

The trial court did not err in dismissing the wrongful death and negligence claims against the DBHDD.

Judgment affirmed.

Mikell, P. J., and Miller, J., concur.

       (Punctuation and footnotes omitted.) Southerland v. Ga. Dept. of Corrections, 293 Ga. App. 56, 57 (666 SE2d 383) (2008).

       OCGA § 50-21-24 (7).

       (Punctuation omitted.) Dept. of Human Resources v. Coley, 247 Ga. App. 392, 393 (1) (544 SE2d 165) (2000), disapproved in part on other grounds, Ga. Dept. of Transp. v. Heller, 285 Ga. 262, 265-266 (1) (674 SE2d 914) (2009).

        Ardizonne v. Dept. of Human Resources, 258 Ga. App. 858 (575 SE2d 738) (2002) (state governmental entities were entitled to protection of sovereign immunity where victim was fatally wounded by his son, who had been released from one of the state governmental entities and was getting outpatient services from another); see also Southerland, 293 Ga. App. at 58 (1) (Georgia Department of Corrections was entitled to protection of sovereign immunity where victim was killed by his cellmate); Davis v. Standifer, 275 Ga. App. 769, 774-775 (1) (b) (621 SE2d 852) (2005) (state entities were entitled to protection of sovereign immunity where victim claimed a state patrol officer sexually assaulted her during traffic stop); Coley, 247 Ga. App. at 394 (1) (Department of Human Resources was entitled to protection of sovereign immunity where DHR placed victim in hospital and victim was later strangled to death by another patient); Dept. of Human Resources v. Hutchinson, 217 Ga. App. 70, 71-73 (1) (456 SE2d 642) (1995) (Department of Human Resources was entitled to protection of sovereign immunity where juvenile delinquent, placed in a contract home by DHR, shot the operator of the contract home).

       (Citations omitted.) Youngblood v. Gwinnett Rockdale Newton Community Svc. Bd., 273 Ga. 715, 717 (3) (545 SE2d 875) (2001).

       Id. at 715.

       Id. at 717 (3).

       See id.; Southerland, 293 Ga. App. at 58-59 (1).

       See Ardizonne, 258 Ga. App. at 859.

       Conceding the long line of Georgia cases that have found that immunity applies in similar circumstances, Chin Pak nonetheless claims that the reasoning underlying those cases has been undermined in the wake of the Supreme Court of Georgia’s decision in Heller, 285 Ga. at 262. In Heller, the Court found that two events were independently responsible for the plaintiff’s loss in an automobile accident — one of which fell under the protection of sovereign immunity and one of which constituted conduct for which the Georgia Tort Claims Act expressly waived the protection of sovereign immunity. Because of the competing sections of the Georgia Tort Claims Act, the Supreme Court found that the State had waived its sovereign immunity with respect to the car accident that led to the victim’s death. Not only does Heller not apply to the circumstances of this case, but the fact remains that the Supreme Court of Georgia has never overruled or modified its holding in Youngblood, 273 Ga. at 715, or reversed our Court’s holdings in any of the other controlling cases.

       Ga. Const. of 1983, Art. VI, Sec. VI, Par. VI.

        Jones v. Wellon, 237 Ga. App. 62, 65 (514 SE2d 880) (1999).

       (Footnote omitted.) Coley, 247 Ga. App. at 398 (3).


source: Caselaw Access Project

license: Public Domain

text:
    A12A1494.
    JINKS et al. v. EASTMAN ENTERPRISES, INC. et al.
    (731 SE2d 378)
   Ray, Judge.

On February 3,2012, the Spalding County State Court dismissed Steven and Lisa Jinks’ complaint against Game Tracker, Inc. because no written order had been entered in the case for five years. OCGA § 9-2-60 (b) (“Any action or other proceeding filed in any of the courts of this state in which no written order is taken for a period of five years shall automatically stand dismissed with costs to be taxed against the party plaintiff.”). The Jinkses appeal from that dismissal, arguing that the court signed an order granting the plaintiffs’ attorney a leave of absence within the five-year period, thereby precluding dismissal under the statute. The standard of review for a question of law on appeal is de novo, and we find no plain legal error here. See Clark v. Clark, 293 Ga. App. 309 (667 SE2d 103) (2008). Pretermitting whether a written, signed, and filed order granting a leave of absence would toll the running of the five-year period, the trial court’s order granting that leave of absence was void because it was entered while the case was stayed by a bankruptcy petition. We therefore affirm the trial court’s dismissal of the action because, excluding the period during which the action was subject to the bankruptcy stay, more than five years had elapsed without a valid written order, signed by the trial judge, and filed with the clerk of the court.

The facts of this case are not disputed. In September 2000, the Jinkses filed "a complaint against Eastman Enterprises, Inc., Game Tracker, Inc., and ABC Corporation, asserting that Steven Jinks suffered injuries when he used an allegedly defective product manufactured by the defendants. The trial court dismissed Eastman Enterprises and ABC Corporation from the case on December 27, 2001, after Game Tracker admitted it was the manufacturer of the product. This was the last order entered in the case before Game Tracker filed a voluntary petition with the United States Bankruptcy Court on October 15, 2004. Despite the fact that the case had been stayed because of the bankruptcy petition, the trial court entered an order granting the plaintiffs’ attorney a leave of absence on January 14, 2008.

On May 1, 2008, Steven Jinks filed a motion for relief from the automatic stay in bankruptcy court. The bankruptcy court granted, in part, his relief from the automatic stay on May 30, 2008, and the trial court entered an order setting the case for a pre-trial conference on July 1,2011. This was the first order entered after the bankruptcy court lifted the automatic stay. The trial court subsequently found that the order granting the leave of absence was void because it was in violation of the automatic stay following Game Tracker’s bankruptcy filing, and on February 3, 2012, the trial court dismissed the Jinkses’ complaint for want of prosecution pursuant to OCGA § 9-2-60 (b).

The Jinkses appeal, arguing that the order granting the leave of absence was not in violation ofthe automatic stay and therefore tolled the five-year rule. We disagree. Under federal law, when a bankruptcy petition is filed, state court proceedings are automatically stayed. 11USC § 362. Georgia case law is also quite clear. During the pendency of the bankruptcy stay, state courts lack the ability to exercise judicial power or discretion or otherwise proceed with the case. See Schafer v. Wachovia Bank of Ga., 248 Ga. App. 466, 467 (1) (a) (546 SE2d 846) (2001); see also Strauss Fuchs Organization v. LaFitte Investments, 177 Ga. App. 891, 893-894 (1) (341 SE2d 873) (1986) (jurisdiction of the state court is suspended until the case is remanded to the state court, at which time the case resumes the status it occupied at the time of the removal). Any orders or judgments entered in violation of the automatic bankruptcy stay are void; they “are deemed without effect and are rendered an absolute nullity.” Jennings Enterprises v. Carte, 224 Ga. App. 538, 540 (1) (481 SE2d 541) (1997) (citation and punctuation omitted). See also McKeen v. Fed. Deposit Ins. Corp., 274 Ga. 46, 48 (549 SE2d 104) (2001).

While the Jinkses cite Schafer, 248 Ga. App. at 467 (1) (a), in support of their argument that certain acts have validity even if entered during the bankruptcy stay, we do not find that argument persuasive. The actual holding of the Schafer case was that the automatic bankruptcy stay did not apply to Wachovia because it was never scheduled as a creditor in the bankruptcy petition and, therefore, never received notice of the bankruptcy or stay as required by federal law. Id. In dicta, the Court went on to discuss the difference between a ministerial act by the clerk in re-issuing a summons of process (which might not violate the bankruptcy stay) and a court order which would be the exercise of judicial discretion and would violate the automatic stay. Id. The Schafer case made it clear that the purported exercise of judicial discretion would violate the automatic stay and therefore be a void act. Id. A signed order by a judge represents an exercise of judicial discretion and violates the bankruptcy stay.

Because the January 14, 2008 order granting the plaintiffs’ attorney a leave of absence was improvidently entered in violation of the automatic stay in bankruptcy, it was void, and the record affirmatively shows that the case was inactive for a period of five years when the bankruptcy stay was not in place. The trial court correctly determined that the case had been dismissed by operation of law pursuant to OCGA § 9-2-60 (b).

Judgment affirmed.

Mikell, P. J., and Miller, J., concur.

Decided August 27, 2012.

Joseph M. Todd, for appellants.

Duncan & Adair, George E. Duncan, Jr., for appellees.

       “In order to toll the running of the five-year period that results in automatic dismissal for non-action, an order must be written, signed by the trial judge, and properly entered in the records of the trial court by filing it with the clerk.” Zepp v. Brannen, 283 Ga. 395, 396 (658 SE2d 567) (2008) (citations and punctuation omitted).

       The court specifically found that the time between valid orders entered by the trial court (the time between the December 27, 2001 order and the July 1, 2011 order) was nine years, six months, and four days, and that the case was inactive due to the bankruptcy stay (the time between the bankruptcy filing on October 15, 2004 and the time the bankruptcy court granted Steven Jinks’ motion for relief from the bankruptcy stay on May 30,2008) for three years, seven months, and fifteen days. Thus, excluding the period during which the action was subject to the bankruptcy stay, the matter remained pending in the trial court for over five years without any order having been entered.


author: Phipps, Presiding Judge.

text:
    A12A1559.
    In the Interest of J. X. B., a child.
    (731 SE2d 381)
   Phipps, Presiding Judge.

Following a hearing, 16-year-old J. X. B. was adjudicated delinquent after admitting that he had possessed a weapon (a baseball bat) in a school safety zone, in connection with an assault. The Juvenile Court of Baldwin County ordered J. X. B. placed in the custody of the Georgia Department of Juvenile Justice for 60 months, including confinement in a secure detention facility for 12 months.

J. X. B. appeals from the order, contending that the juvenile court erred in ordering restrictive custody: (1) without making the specific written findings of fact required by OCGA § 15-11-63; and (2) when the evidence did not support such a disposition. Because the juvenile court failed to make the required specific written findings of fact, we vacate the judgment and remand the case for the juvenile court to make those written findings and to thereafter enter an appropriate order of disposition.

l.OCGA § 15-11-63 (b) pertinently provides that when a juvenile is found to have committed a “designated felony act,” the juvenile court’s order of disposition must include a finding based upon a preponderance of the evidence as to whether the juvenile requires restrictive custody. To determine whether restrictive custody is required, the juvenile court must consider and make specific written findings of fact, related to the particular child, as to each of the following elements: (1) the needs and best interest of the child; (2) the record and background of the child; (3) the nature and circumstances of the offense, including whether any injury involved was inflicted by the child or another participant; (4) the need for protection of the community; and (5) the age and physical condition of the victim. “These findings not only provide a meaningful legal road map for the lower court in exercising discretion in effecting a fundamentally fair case disposition, but also assist the appellate court in its review of the merits of an appeal.” Requiring specific written findings as to each essential element benefits the lower court in its balancing process, and assists this court in determining whether an abuse of discretion has occurred in a particular case. “The weight to be accorded each [element], and the ultimate decision about whether restrictive custody is warranted, is committed to the sound discretion of the juvenile court.” Notwithstanding the fact that “the extent and depth of analysis to which each of these elements must be subjected is in large measure within the sound discretion of the court, we [have] held that each of these elements must be specifically addressed in writing

In this case, the juvenile court utilized for its written order a pre-printed form titled “DISPOSITIONAL ORDER OF COMMITMENT FOR DESIGNATED FELONY.” The form, which contained a combination of pre-printed text and “fill-in-the-blank” sections, purported to include findings as to each of the required elements. As entered by the juvenile court, the order pertinently provided the following:

In the “FINDINGS OF FACT” section of the order, under the typed heading “NATURE OF THE OFFENSE,” the following was written in a blank space: “child brought a baseball bat to school with the intent to use it in an assault.”

Under the heading “RECORD AND BACKGROUND” was the following pre-printed text: “_has the following history of delinquency and/or unruliness:_[.]” “J. B.” was written in the first space, and “none” was written in the second space.

Under the heading “AGE AND CONDITION OF THE VICTIM” was written: “N/A.”

Under the heading “NEEDS AND BEST INTEREST OF THE CHILD” was the following pre-printed text: “ has demonstrated by his conduct a lack of respect for authority, both parental and legal._ must learn to obey rules and take direction, respect authority and establish realistic goals and expectations from himself and society. The court, based upon the evidence, has the following concerns: _.”; J. X. B.’s initials were written in the first two spaces, and nothing was written in the third space.

Under the heading “NEED FOR THE PROTECTION OF THE COMMUNITY’ was the following pre-printed text: “Owing to the nature of the offense and the propensity of said minor child to commit either violent offenses or chronic property damage offenses, the community is in need of protection from said minor child.” Nothing was added to or deleted from that pre-printed language, nor did the form contemplate the addition of any information under this heading.

The form concluded with pre-printed language that the court had made the findings of fact by a preponderance of the evidence and, having “duly considered the foregoing factors,” found by a preponderance of the evidence “that_requires restrictive custody.” J. X. B.’s name was written in the blank space.

The state asserts that the juvenile court’s order satisfied OCGA § 15-11-63 (b) and (c) because each of the five elements was specifically included in the order, and the juvenile court was not prohibited from entering an order using “pre[-] printed” language “written in boilerplate fashion.” We disagree.

This specific statutory scheme was made explicit by the General Assembly to ensure that a determination as to restrictive custody, regarding a particular juvenile, would not be accomplished in an arbitrary manner, but only with fundamental fairness after the required statutory findings had been made and duly considered by the court. Moreover, our Supreme Court has held an appellate court cannot condone a violation of the statutory scheme set up by our legislature.

Significantly, the objective of the juvenile code is to seek nonconfinement, rehabilitation, and restoration to parental care wherever possible. The statutory requirement that the juvenile court must make specific written findings of fact as to each of the elements in connection with its determination of whether a particular juvenile requires restrictive custody, is consistent with that objective.

Although the juvenile court’s order listed all five elements and indicated in boilerplate text that the court had “duly considered the foregoing factors,” the court failed to include in the order the specificity needed to show that its decision to place J. X. B. in restrictive custody was not arbitrary but was made after giving due consideration to each of the required elements as they related to this particular child.

For example, the boilerplate language found under the caption “NEED FOR THE PROTECTION OF THE COMMUNITY’ contained no findings of fact specific to J. X. B. and the act he committed, and no findings regarding why restrictive custody was required in this case “for the protection of the community”; the court included no findings of fact showing that J. X. B. had, as the pre-printed language stated, a “propensity” to commit violent or chronic property damage offenses; and the court used “either . . . or” language, not specifying which of the listed offenses J. X. B. had a propensity to commit. Similarly, the “NATURE OF THE OFFENSE” section included no findings of fact as to whether J. X. B. had inflicted any injuries, and no findings of fact regarding the “circumstances of the offense” when, in this case, the circumstances preceding the juvenile’s act of bringing the bat to school seem particularly relevant to the decision of whether restrictive custody is required. Further, the boilerplate language found under the caption “NEEDS AND BEST INTEREST OF THE CHILD” included no findings of fact indicating that the court considered the specific needs or best interest of this particular child. For the most part, the court’s order contained very general statements and conclusions, not the specific written findings of fact required in a case involving a designated felony act and a restrictive custody determination.

Because the juvenile court failed to make specific written findings of fact as to each of the five elements as they pertained to J. X. B., we vacate the judgment and remand the case for the juvenile court to consider each element as it pertains to this particular child, and to enter appropriate written findings of fact addressing each element, after which an appropriate order of disposition shall be entered.

Decided August 27, 2012.

Cansino & Petty, Carl S. Cansino, for appellant.

FredricD. Bright, District Attorney, Joseph M. McKinnon, Assistant District Attorney, for appellee.

2. In light of the foregoing, we do not address J. X. B.’s remaining challenge to the juvenile court’s order.

Judgment vacated and case remanded with direction.

Ellington, C. J., and Dillard, J., concur.

       See OCGA § 16-11-127.1 (b) (1), which pertinently provides, with specified exceptions, that persons are prohibited from possessing within a school safety zone any weapon; “weapon” includes a bat. OCGA § 16-11-127.1 (a) (2). The hearing transcript shows, and it is undisputed, that on November 7, 2011, J. X. B. took a baseball bat to school and swung it at another student, whom he claimed had been bullying him. J. X. B. struck the student in the back and a bystander on the wrist; J. X. B. and the intended victim then wrestled on the ground before being separated by school officials.

       See generally OCGA § 15-11-63 (e) regarding restrictive custody orders and placement.

       “Designated felony act” includes an act which constitutes a first violation of OCGA § 16-11-127.1 involving any weapon together with an assault. OCGA § 15-11-63 (a) (2) (C.2) (i). J. X. B. does not dispute that he committed a “designated felony act” within the meaning of OCGA § 15-11-63.

       OCGA § 15-11-63 (b), (c); see In the Interest of Q. S., 310 Ga. App. 70, 76-77 (2) (712 SE2d 99) (2011); In the Interest of E. D. F., 243 Ga. App. 68, 69-70 (3) (532 SE2d 424) (2000) (citing OCGA § 15-11-37, redesignated as OCGA § 15-11-63 by Ga. L. 2000, pp. 20-21, § 1, pp. 76-77).

       See In the Interest of S. F., 312 Ga. App. 671, 674-675 (2) (719 SE2d 558) (2011) (citation and punctuation omitted).

        In the Interest of C. T., 197 Ga. App. 300, 304 (3) (398 SE2d 286) (1990).

        In the Interest of Q. S., supra; OCGA § 15-11-63 (b).

        In the Interest of E.D. F., supra at 70 (3) (emphasis supplied); In the Interest of C. T., supra at 303 (3) (citing former OCGA § 15-11-37, redesignated as OCGA § 15-11-63).

        In the Interest of E. D. F., supra (citing former OCGA § 15-11-37 (b), (c), redesignated as OCGA § 15-11-63 (b), (c)) (punctuation omitted).

       See In the Interest of Y. E., 229 Ga. App. 506, 507 (1) (494 SE2d 297) (1997); T.K. v. State, 126 Ga. App. 269, 274 (1) (190 SE2d 588) (1972).

       See OCGA § 15-11-63 (b), (c) (3).

       Id.

       See In the Interest of E. D. F., supra; In the Interest of S. P., 240 Ga. App. 827, 829 (2) (525 SE2d 403) (1999); In the Interest of C. T., supra at 303-304 (3).


author: Dillard, Judge.

text:
    A12A0961.
    WOMACK v. THE STATE.
    (731 SE2d 387)
   Dillard, Judge.

Following a trial by jury, Tyrone Womack was convicted of two counts of rape, two counts of false imprisonment, one count of criminal attempt to commit aggravated sodomy, one count of aggravated sodomy, and two counts of aggravated assault. Womack appeals these convictions, arguing that (1) he received ineffective assistance of counsel when his attorney failed to obtain a pre-trial psychiatric evaluation, (2) the trial court erred by denying his motion to suppress pornographic videos which were not linked to the crimes for which Womack was indicted and seized using an insufficient search warrant, and (3) the trial court erred by allowing testimony summarizing the contents of the pornographic videos seized. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s guilty verdict, the record reflects that Womack committed horrific acts of violence against two separate women in 2008 and was subsequently indicted on a score of charges related to these attacks.

Womack’s first victim was walking home late one evening in January when Womack stopped and asked if she would like a ride. Once she was in his vehicle, Womack questioned the woman as to what she would do to make some money, at which point she offered to perform sexual acts. When the two reached a secluded area, the woman demanded to be paid up front, but Womack refused, punched the victim, and instructed that she would do exactly what she was told to do.

From that point on, Womack’s first victim was subjected to a vicious attack that lasted hours and took place in various locations as Womack drove his van from DeKalb County to Gwinnett County. Womack vaginally raped her after attempting anal sodomy. At times the victim’s hands were bound by the laces from her shoes, and Womack told her about his indecision as to what he should do with her, suggesting at some points that he should take her “into the woods” — -which the victim understood to mean that she would be killed — or suggesting that he should take her home to become his slave. Instead, Womack eventually released the victim in a grocery store parking lot at 4:00 a.m., and she immediately notified law enforcement about her attack.

Womack was not apprehended until some six months later when his second victim escaped after days of torture. Like the first victim, Womack picked up the second victim by offering her a ride to the store. But rather than going to the store, after the victim accepted the ride, Womack continued to drive and invited the victim to accompany him to use illegal drugs after she asked where they were going. The victim became frightened the further Womack drove but agreed to get high with him nevertheless.

The two eventually arrived at the home of Womack’s parents, where he lived in the basement, and as he escorted the victim down to his room, he said, “Welcome to the dungeon.” Then, as the victim prepared to use drugs with Womack, he punched her in the face, instructed that she would do as she was told, informed her that she would be staying for “a while,” and demanded that she disrobe. Womack threatened that he would not kill her, only make her wish that she was dead, and said that he would hurt her if she did not do as instructed. The victim’s hands were then bound with a ripped bed sheet, and she was anally sodomized and vaginally raped as Womack cut her across the buttocks, back, shoulders, and thighs with a serrated knife and punched her in the head with each scream. Womack also burned the victim with lit cigarettes after asking if she had any weapons in her purse, finding a razor blade inside, and instructing her that because she did not tell him about the razor blade, she could choose to be cut with the blade or burned with cigarettes.

The victim was assaulted and hidden in Womack’s “dungeon” for two days. Womack first tried to hide her in a crawl space but then attempted to hide her beneath his bed. To do so, he forced the victim to move sixteen two-liter bottles filled with urine, which were hidden under the bed and which he explained had been used by a previous prisoner. But when the victim still could not fit beneath the bed, Womack hid her behind boxes in a corner. At one point, the victim heard Womack’s mother come into the basement and ask whether he was “hiding any hoes in here,” but the victim did not cry out because Womack had previously warned that she would “be sorry” if she asked for assistance.

The victim’s ordeal finally ended when she awoke in the corner and believed herself to be alone. Despite prior warnings by Womack that he might try to trick her into escaping, the victim left the corner clad in only a sheet, made her way to the garage door, and fled to a neighboring house for help. From there, law enforcement was notified, Womack’s vehicle was matched to a description by the first victim, and Womack was eventually taken into custody. Although Womack contended to law enforcement and at trial that both victims consented to the acts performed, he was convicted by a jury of two counts of rape, two counts of false imprisonment, one count of criminal attempt to commit aggravated sodomy, one count of aggravated sodomy, and two counts of aggravated assault. This appeal follows.

At the outset, we note that on appeal of Womack’s criminal convictions, “we view the evidence in the light most favorable to the jury’s verdict, and [Womack] no longer enjoys a presumption of innocence.” And we neither weigh the evidence nor assess witness credibility, “which are tasks that fall within the exclusive province of the jury.” With these guiding principles in mind, we turn now to Womack’s enumerations of error.

1. Womack first argues that he received ineffective assistance of counsel when his attorney failed to obtain a pre-trial psychiatric evaluation regarding his competency and level of criminal responsibility at the time of the offenses. We disagree.

When reviewing such a claim, “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” In order to prevail on this enumeration, Womack carries the burden of “establishing that his trial defense counsel’s performance was deficient and the deficient performance prejudiced his defense.” Additionally, he must show that there was a “reasonable probability the result of his trial would have been different but for his defense counsel’s unprofessional deficiencies.” Womack has failed to meet this burden.

At the motion-for-new-trial hearing, Womack presented the testimony of two medical experts who reviewed his prior medical history (which included a 2006 diagnosis of a lesion on his brain), and who evaluated him after trial and some three years after he was first incarcerated. Those experts expressed serious reservations regarding Womack’s competency to stand trial, his intelligence, and his mental health. But the State presented the testimony of Womack’s trial counsel and a psychologist who evaluated Womack prior to trial at the request of the court after Womack had an outburst during a bond hearing.

The psychologist who evaluated Womack prior to trial was aware of Womack’s prior diagnosis, observed no real issues with Womack, did not see sufficient evidence to deem Womack incompetent or to question his criminal responsibility, and felt that Womack could assist in his defense. As for Womack’s trial counsel, he testified that he was appointed after Womack had been deemed competent by the court-ordered pre-trial evaluation, that he understood the conclusions of that evaluation, and that he was aware of Womack’s medical history. Trial counsel also observed that Womack had a good memory of the events at issue; was lucid, coherent, able to communicate, and capable of testifying; and was intelligent and involved in the trial by taking notes, helping to locate witnesses, and providing feedback after witnesses testified. In short, trial counsel testified that nothing made him question the determination that Womack was competent to stand trial or made him question Womack’s level of criminal responsibility.

When the trial court denied Womack’s motion on the claim of ineffective assistance of counsel, the court remarked that Womack was fully engaged during the trial and that his claim was unsupported by evidence. Given the foregoing, the trial court’s denial of Womack’s ineffective-assistance-of-counsel claim was not clearly erroneous. Accordingly, this enumeration of error is wholly without merit.

2. Womack next argues that the trial court erred by allowing the State to show the jury two clips of pornography depicting rape because the evidence was not linked to the crimes indicted and was seized using an insufficient warrant. We disagree.

The record reflects that when Womack was interviewed by law enforcement, he disclosed that he “had rape related pornography stored on DVD-Rs in his bedroom,” and this information was included in the officer affidavit attached to the application for a search warrant. Thereafter, law enforcement obtained a search warrant to collect this pornography. And pursuant to this search warrant, officers recovered hundreds of DVDs containing more than 5,500 pornographic videos, over 1,500 of which depicted rape and/or bondage. At trial, the State admitted into evidence a hard drive containing 773 of the rape/bondage videos and played for the jury two representative videos depicting violent rape. Womack objected to admission of the evidence on the same grounds enumerated on appeal.

(a) As to the first argument, that the evidence was not linked to the crime charged in the indictment, this contention is without merit. As we have previously held, in prosecutions for sexual offenses, “evidence of sexual paraphernalia found in [the] defendant’s possession is inadmissible unless it shows defendant’s lustful disposition toward the sexual activity with which he is charged or his bent of mind to engage in that activity.” Pursuant to this rule, “sexually explicit material cannot be introduced merely to show a defendant’s interest in sexual activity” but instead can only be admitted “if it can be linked to the crime charged.” And here, the relevant pornography depicted scenes of rape and/or bondage, and Womack was indicted for committing the offense of forcible rape, which at points involved binding the victims’ hands. Thus, this evidence did not merely show Womack’s lustful disposition in general but instead depicted a “lustful disposition toward a particular sexual activity and his bent of mind to engage in that activity.” Accordingly, the trial court did not abuse its discretion in admitting the pornography that depicted rape and/or bondage.

(b) As to the second argument, that the pornography was seized using an insufficient warrant, this contention is likewise without merit.

Our Supreme Court has specified that

[a]lthough a warrant cannot leave the determination of what articles fall within its description and are to be seized entirely to the judgment and opinion of the officer executing the warrant, the degree of specificity in the description is flexible and will vary with the circumstances involved.

More specifically, the particularity requirement only demands that “the executing officer be able to identify the property sought with reasonable certainty.” Additionally,

a warrant authorizing the seizure of materials presumptively protected by the First Amendment may not issue based solely on the conclusory allegations of a police officer that the sought-after materials are obscene, but instead must be supported by affidavits setting forth specific facts in order that the issuing magistrate may focus searchingly on the question of obscenity.

In the case sub judice, the relevant search warrant was issued for the collection of, inter alia, “DVDs of pornography” and specifically “[a]ny records and information related to violations of [OCGA §§] 16-5-21, 16-5-41, 16-6-1, 16-6-2, [and] 16-6-22.1.” Additionally, the warrant specified that the terms “records” and “information” encompassed “all the foregoing items of evidence in whatever form and by whatever means they may have been created, duplicated, transferred, or stored, including any electrical, electronic, or magnetic form” to include “floppy diskettes, hard disks, CD, CD-Rom, DVD, DVD-Rom,” other methods of documentation, and “[a]ny records or information related to Internet based pornography . . . .” Although a warrant permitting a search for “DVDs of pornography,” without more, would most likely be insufficient, the warrant further specified that officers were to seize records and information related to the sexual and other offenses Womack was alleged to have committed, i.e., aggravated assault, false imprisonment, rape, sodomy/aggravated sodomy, and sexual battery. Accordingly, the trial court did not err by denying Womack’s motion to suppress because the search warrant described the property to be seized with reasonable certainty.

3. Finally, Womack argues that the trial court erred by allowing the testimony of a State’s witness who summarized the content of over 700 clips of pornography depicting rape and/or bondage. We disagree.

Over Womack’s objections, the trial court permitted the State to tender into evidence a hard drive onto which an investigator for the district attorney’s office transferred 773 of the approximately 1,500 clips of rape and/or bondage-related pornography discovered in the evidence recovered from Womack’s bedroom, but which were not viewed by the jury. And due to the overwhelming number of these video clips, the trial court also permitted the State to show the jury two representative videos depicting rape, followed by testimony from the investigator that the clips were similar in nature to the other 771 rape/bondage videos on the hard drive. Womack argues on appeal that the trial court erred in overruling his objections to this evidence because it was improper to allow a summary of the voluminous evidence. Again, we disagree.

The record reflects that the hard drive containing the rape/bondage pornography was available to the court and to Womack; that the State made available all 1,500 videos for Womack to view at his convenience and that Womack’s counsel had in fact taken the time to view some of the videos; that the two representative clips were previewed by Womack, the State, and the court outside the jury’s presence; that the investigator who testified had actually viewed all 773 videos contained on the hard drive; that the jury was never informed that approximately 1,500 clips were located and was instead only informed of the 773 that the investigator was capable of viewing and transferring prior to trial; and that the collection of rape/bondage pornography was so voluminous that it could not conveniently be examined in court by the jury. Accordingly, the trial court did not abuse its discretion in overruling Womack’s objection to permitting a summary of the evidence.

For all the foregoing reasons, we affirm Womack’s convictions. Judgment affirmed.

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

Decided August 29, 2012.

Bruce S. Harvey, Jennifer S. Hanson, for appellant.

Daniel J. Porter, District Attorney, Teresa B. Klein, Assistant District Attorney, for appellee.

        See, e.g., DeLong v. State, 310 Ga. App. 518, 518 (714 SE2d 98) (2011).

       This appeal concerns the offenses that took place in Gwinnett County, for which Womack was tried and convicted.

        See OCGA § 16-6-1 (a) (1) (“A person commits the offense of rape when he has carnal knowledge of. . . [a] female forcibly and against her will. . . .”).

        See OCGA § 16-5-41 (a) (“A person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.”).

        See OCGA § 16-6-2 (a) (1) (“A person commits the offense of sodomy when he or she performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.”); OCGA § 16-4-1 (“A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.”).

        See OCGA § 16-6-2 (a) (2) (“Aperson commits the offense of aggravated sodomy when he or she commits sodomy with force and against the will of the other person ....”). Womack was acquitted on two other counts of aggravated sodomy, which were related to the victims’ contentions that Womack forced them to perform oral sex.

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

        DeLong, 310 Ga. App. at 519-20.

        Id. at 520 (punctuation omitted).

        Haygood v. State, 289 Ga. App. 187, 192 (2) (656 SE2d 541) (2008) (punctuation omitted).

        Coley v. State, 272 Ga. App. 446, 448 (2) (612 SE2d 608) (2005).

        Id.

        See Whitus v. State, 287 Ga. 801, 804 (2) (700 SE2d 377) (2010) (holding that counsel was not ineffective when he failed to make a meritless motion for an additional examination of defendant because counsel “believed that the [prior] evaluation was fair and balanced and that he had no reason to disagree and request additional testing”); Page v. State, 313 Ga. App. 691, 695 (2) (722 SE2d 408) (2012) (“The fact that a psychiatric report was issued after trial does not demonstrate that counsel performed deficiently at the time of trial.”); see also Haygood, 289 Ga. App. at 192 (2) (a); Coley, 272 Ga. App. at 449 (2). See generally Sims v. State, 279 Ga. 389, 390 (1) (614 SE2d 73) (2005) (“The constitutional test for competency seeks to determine whether the defendant is capable of understanding the nature and object of the proceedings, whether he comprehends his own condition in reference to such proceedings and whether he is capable of rendering his counsel assistance in providing a proper defense.”).

       The record reflects that most of the videos were commercially produced and created by consenting adults, and they were obtained via pornographic websites.

        Ayers v. State, 286 Ga. App. 898, 904 (3) (650 SE2d 370) (2007) (punctuation omitted); see also Simpson v. State, 271 Ga. 772, 773 (1) (523 SE2d 320) (1999).

        Ayers, 286 Ga. App. at 904-05 (3) (punctuation omitted); see also Simpson, 271 Ga. at 773 (1).

        Ayers, 286 Ga. App. at 905 (3) (punctuation omitted).

        Id.

        Reaves v. State, 284 Ga. 181, 184 (2) (d) (664 SE2d 211) (2008) (punctuation omitted); see also Henson v. State, 314 Ga. App. 152, 155 (723 SE2d 456) (2012).

        Reaves, 284 Ga. at 187 (2) (d) (punctuation omitted); see also Henson, 314 Ga. App. at 155.

        Dobbins v. State, 262 Ga. 161, 164 (3) (415 SE2d 168) (1992) (per curiam) (punctuation omitted).

       These are the Code sections for aggravated assault, false imprisonment, rape, sodomy/ aggravated sodomy, and sexual battery, respectively.

        See Dobbins, 262 Ga. at 164 (3) (“[T]he search warrant’s description was so open-ended that the warrant was a general warrant in violation of both the United States and Georgia Constitutions. The warrant left the determination of what items were likely to be ‘of a pornographic nature’ entirely to the discretion of the officers executing the warrant and conducting the search.”); see also State v. Kramer, 260 Ga. App. 546, 548 (2) (580 SE2d 314) (2003) (physical precedent only).

        See Smith v. State, 274 Ga. App. 106, 110 (3) (616 SE2d 868) (2005) (warrant was sufficient when it permitted seizure of “items evidencing ‘child molestation and sexual exploitation of children in violation of OCGA § 16-12-100.2’ ” and was supported by an affidavit describing the sought-after material as being those “involving Child Molestation and Sexual Exploitation of Children including but not limited to pictures, computers, and videos”); see also Reaves, 284 Ga. at 184-88 (2) (discussing residual clauses and the resulting specificity of warrants); Holden v. State, 202 Ga. App. 558, 561 (2) (b) (414 SE2d 910) (1992) (“[T]he items seized could be used to show the bent of mind of defendant to commit sexual crimes.”); Tyler v. State, 176 Ga. App. 96, 99 (1) (335 SE2d 691) (1985) (“[TJhis court has held that magazines showing natural and unnatural sex acts and other apparent sexual devices and paraphernalia designed for sexual stimulation can have a tendency to show a bent of mind toward similar sexual activity.” (punctuation omitted)).

        See Bennett v. State, 292 Ga. App. 382, 383 (665 SE2d 365) (2008) (State used representative sample of pornographic evidence when thousands of images were seized); Ayers, 286 Ga. App. at 900 (1) (same); see also Jenkins v. Smith, 244 Ga. App. 541, 543 (2) (535 SE2d 521) (2000) (trial court did not abuse its discretion in refusing to admit summaries of voluminous business records). Cf. Stewart v. State, 246 Ga. 70, 73-74 (3) (268 SE2d 906) (1980) (“When pertinent and essential facts can be ascertained only by an examination of a large number of entries in books of account, an auditor or an expert accountant who has made an examination and analysis of the books and figures may testify as a witness and give summarized statements of what the books show as a result of his investigation, provided the books themselves are accessible to the court and the parties.” (punctuation omitted)); Bible v. Somers Const. Co., 197 Ga. 761, 761 (2) (30 SE2d 623) (1944); Cotton v. John W. Eshelman & Sons, Inc., 137 Ga.App. 360, 363(2) (223 SE2d 757) (1976); Hutcheson v. Am. Machine & Foundry Co., 129 Ga. App. 602, 603 (2) (200 SE2d 371) (1973). See generally Paul S. Milich, “Summary of Voluminous Documents,” Courtroom Handbook on Georgia Evidence (2012 ed.) (discussing new OCGA § 24-10-1006 and the pre-2013 Georgia rule regarding the admissibility of summaries of voluminous evidence).


author: Miller, Judge. Mikell, Presiding Judge,

text:
    A12A1000.
    MILLER v. THE STATE.
    (731 SE2d 393)
   Miller, Judge.

Following a stipulated bench trial, Scott Charles Miller was convicted of driving with unlawful alcohol concentration (OCGA § 40-6-391 (a) (5)) and speeding (OCGA § 40-6-181). The trial court denied Miller’s motion for new trial, as amended. On appeal, Miller argues that the trial court erred in denying his motion to suppress the results of Miller’s breath test. Discerning no error, we affirm.

Because the trial court sits as the trier of fact when ruling on a motion to suppress ..., its findings based upon conflicting evidence are analogous to a jury verdict and should not be disturbed by a reviewing court if there is any evidence to support them. When we review a trial court’s decision on such motions to exclude evidence, we construe the evidence most favorably to uphold the findings and judgment, and we adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous. When the evidence is uncontroverted and no question of witness credibility is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review. With mixed questions of fact and law, the appellate court accepts the trial court’s findings on disputed facts and witness credibility unless clearly erroneous, but independently applies the legal principles to the facts.

(Citations and punctuation omitted.) State v. Tousley, 271 Ga. App. 874 (611 SE2d 139) (2005).

Viewed in the light most favorable to the trial court’s findings, the evidence, which was stipulated to by the parties, shows that at approximately 3:00 a.m. on May 1, 2010, an officer’s radar gun clocked Miller’s speed at 64 mph in a zone where the posted speed limit was 45 mph. The officer initiated a traffic stop. When the officer approached Miller’s vehicle, he noticed a strong odor of alcohol emanating from the vehicle. The officer asked Miller how much he had to drink, and Miller responded, “Not that much,” and that he had quit drinking earlier in the evening. After Miller voluntarily submitted to field sobriety tests, the officer conducted an alco-sensor test. Miller then admitted that he had had four to five drinks and had stopped drinking about an hour and a half earlier. After indicating to Miller that his alco-sensor result was positive for the presence of alcohol, the officer stated to Miller, “[A]s long as you continue to be cool or whatever and be cooperative, what I’ll do is, is I’ll make the process go by real quick[.]” The officer then placed Miller under arrest. The officer and Miller engaged in a conversation about the alco-sensor test, having someone pick up Miller’s vehicle, how to sit comfortably in the back of the patrol car while wearing handcuffs, and whether Miller wanted the officer to perform a radar accuracy test. The officer then read Miller the implied consent notice and asked whether Miller would submit to a State-administered breath test. Miller consented to the test, which registered blood alcohol readings of 0.129 and 0.124.

At the start of Miller’s bench trial, he moved to suppress the results of the breath test, contending that the officer coerced Miller into consenting to the test. The trial court denied his motion and found that Miller was not coerced or pressured to take the test. Miller challenges this ruling on appeal.

One who operates a motor vehicle on Georgia’s highways is deemed to have given consent to chemical testing of a bodily substance to determine the presence of alcohol or other drugs. Although consent is implied, before test results may be admitted into evidence the state must show that the accused had been advised of his rights under the Implied Consent Statute.

(Citations omitted.) Travis v. State, 314 Ga. App. 280, 282 (2) (724 SE2d 15) (2012); see OCGA § 40-5-67.1 (b) (implied consent notice). However,

[e]ven when the officer properly gives the implied consent notice, if the officer gives additional, deceptively misleading information that impairs a defendant’s ability to make an informed decision about whether to submit to testing, the defendant’s test results or evidence of his refusal to submit to testing must be suppressed. The suppression of evidence, however, is an extreme sanction and one not favored in the law.

(Punctuation and footnote omitted.) Page v. State, 296 Ga. App. 431, 433 (1) (a) (674 SE2d 654) (2009).

Here, it is undisputed that the officer’s reading of the implied consent notice was accurate, that the officer asked whether Miller consented, and that the officer told Miller he could answer yes or no. Miller nevertheless contends that the officer’s statement, that “as long as you continue to be cool...[,] and be cooperative,... I’ll make the process go by real quick for you,” was coercive insofar as it implied that if Miller did not take the test, the officer would have protracted the arrest process. The officer’s statement, however, was not deceptively misleading information regarding the breath test. Nor does the traffic stop video clearly reflect that the officer’s statement was made specifically to encourage or coerce Miller into consenting to a breath test. Notably, after making the statement, the officer placed Miller under arrest and then proceeded to engage in a conversation with Miller regarding topics other than the breath test. The officer did not in fact mention the State-administered breath test until several minutes after he made the statement about being cool and cooperative. Under the circumstances of this case, we conclude that there was a substantial basis for the trial court’s conclusion that the officer’s statement did not render Miller incapable of making an informed decision about whether to submit to the breath test.

Judgment affirmed.

Ray, J., concurs. Mikell, P. J., concurs specially.

Mikell, Presiding Judge,

concurring specially.

I write separately to emphasize that the majority’s outline on page 504 of the method of appellate review of motions to suppress applies only when, as here, the evidence was stipulated. Our review is never de novo when the decision below depended on live, testimonial evidence because such evidence, in view of Georgia precedents about the factfinder’s role, is technically never “uncontroverted.” In Georgia a trier of fact, judge or jury, may believe or disbelieve all or any part of the testimony of any witness. To require as a matter of law that a jury or a judge must believe a witness’s testimony would pervert the truth-seeking mission of the trier of fact.

Decided August 29, 2012.

Wystan B. Getz, for appellant.

RosannaM. Szabo, Solicitor-General, KarenM. Seeley, Assistant Solicitor-General, for appellee.

       This is unlike the situation in State v. Rowell, 299 Ga. App. 238, 239 (682 SE2d 343) (2009), upon which Miller relies heavily. In Rowell, the defendant initially declined to give consent after the officer read the implied consent notice; however, the officer then persuaded the defendant into rescinding her refusal by stating that “if you blow under the legal limit I can let you go home to your son, and everything will be fine.” Id. Based on these circumstances, this Court affirmed the trial court’s finding that the officer’s procedure in persuading the defendant to rescind her refusal was not fair or reasonable. Id. at 240.

       The majority cites our otherwise very scholarly opinion State v. Tousley, 271 Ga. App. 874 (611 SE2d 139) (2005). Tbusley relied on dictum in the much criticized decision Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994) (trial judge’s decision based on two live witnesses affirmed). Vansant is criticized for its dictum, not for its quite reasonable holding. See, e.g., Miller v. State, 288 Ga. 286 (702 SE2d 888) (2010) (reversing Court of Appeals, which had used a de novo analysis). Accord Johnson v. State, 313 Ga. App. 137 (720 SE2d 654) (2011) (Mikell, J., concurring specially); Robinson v. State, 295 Ga. App. 136, 139-141 (670 SE2d 837) (2008) (Mikell, J., concurring specially); see also Tate v. State, 264 Ga. 53, 56 (3) (440 SE2d 646) (1994). But see Jones v. State, 314 Ga. App. 247, 248 (723 SE2d 697) (2012); Wilson v. State, 308 Ga. App. 383 (708 SE2d 14) (2011).


author: Mikell, Presiding Judge.

text:
    A12A1019.
    LEE v. THE STATE.
    (731 SE2d 768)
   Mikell, Presiding Judge.

Convicted in a bench trial of driving under the influence of marijuana and speeding, Leslie Robert Lee appeals, contending that the trial court erred in denying his motion for new trial based on the insufficiency of the evidence. Finding no error, we affirm.

When a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict and appellant no longer enjoys a presumption of innocence.

So viewed, the evidence shows that, on April 1,2010, shortly after midnight, then Taliaferro County Sheriff Deputy Paquette was on patrol on Interstate 20 in Taliaferro County and was operating stationary radar there. As he was doing so, he observed a Chrysler 300 sedan in the fast lane and, based on his training and experience, concluded that it was going approximately 85 mph in a 70 mph speed zone. Paquette then used his radar which checked the car’s speed at 86 mph. Paquette activated his blue lights and pursued the Chrysler until it pulled over. Lee was driving the car and produced his driver’s license. As Paquette was approaching the driver’s door, he noticed the strong odor of marijuana coming from it. Paquette asked Lee to step to the rear of the vehicle and, as Lee got out of the car, Paquette saw him stumble and appear to have difficulty keeping his balance. Lee’s eyes were bloodshot and red, and he appeared to have a very dry mouth. Paquette advised Lee that he had smelled marijuana and asked Lee if there was marijuana in the car. Lee responded negatively, saying that they had smoked it all. After Lee had gotten out of the car and gone to the rear of it, Paquette also noticed the smell of burnt marijuana coming off of him and observed him using the rear of the car to keep his balance. Paquette was of the opinion that Lee was less safe due to the effects of marijuana and placed him under arrest. At that point, Paquette read the implied consent notice to Lee and requested that Lee submit to blood and urine testing. According to Paquette, Lee refused to submit to testing.

Lee testified that he, his brother, and a friend had been to a Hawks game in Atlanta and his friend had been drinking. Because he did not drink or smoke, Lee offered to drive and had the car on cruise control at 70 mph when his Chrysler was pulled over out of a group of cars by Paquette. Lee said he did not smoke marijuana, his eyes stayed red, and he did not stumble getting out of the car. Lee also denied that he said he had smoked marijuana and said he agreed to take the blood and urine tests. Lee’s stepbrother testified that he did not know whether Lee was speeding because he had dozed off, but that no one had smoked marijuana that night.

In evaluating the sufficiency of the evidence, “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.” The trier of fact’s guilty verdict will be upheld “as long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case.”

Here, the issue was purely one of credibility, which the trial court determined in the state’s favor. The evidence was sufficient to find Lee guilty of speeding and driving under the influence of marijuana (less safe).

Judgment affirmed.

Miller and Ray, JJ., concur.

Decided August 29, 2012.

Sara E. Meyers, for appellant.

Dennis C. Sanders, District Attorney, Durwood R. Davis, Kevin R. Majeska, Assistant District Attorneys, for appellee.

       OCGA § 40-6-391 (a) (2) (less safe).

       OCGA § 40-6-181 (b) (2).

        Joiner v. State, 299 Ga. App. 300 (682 SE2d 381) (2009).

       Although no marijuana was found in the car, cocaine was found.

       (Citation and footnote omitted.) Id.

       (Punctuation andfootnote omitted.) Nassau v. State, 311 Ga. App. 438, 440-441 (715 SE2d 837) (2011).

       See Crusselle v. State, 303 Ga. App. 879, 880-881 (1) (694 SE2d 707) (2010).


text:
    A12A1079.
    HARKLEROAD v. THE STATE.
    (732 SE2d 278)
   Mikell, Presiding Judge.

On appeal from her conviction for driving under the influence (DUI) and speeding, Mary Harkleroad argues that the trial court erred when it denied her motions to suppress the results of her horizontal gaze nystagmus (HGN) field sobriety test and her Intoxilyzer breath test. Harkleroad also argues that the evidence was insufficient, that the state made an improper closing argument, and that she was not given adequate time to obtain expert testimony. We find no error and affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

So viewed, the record shows that early on the morning of February 10, 2002, a City of Savannah police officer’s stationary radar detected Harkleroad’s vehicle traveling 43 mph in a 30-mph zone. He activated his blue lights and followed Harkleroad until she stopped a few blocks down the well-lit city street. When the officer approached the vehicle, he noticed a strong smell of alcohol and that Harkleroad’s eyes were bloodshot and her face flushed. The front-seat passenger in the vehicle admitted that he had been drinking and that he was not fit to drive. The officer asked Harkleroad to step to the rear of her vehicle and submit to a preliminary breath test. Harkleroad refused, offering to walk a line instead. The officer, who had worked over 2,000 DUI cases and was an instructor in the performance of field sobriety tests, first administered the HGN test, which Harkleroad failed when she exhibited four of six indicators. After some argument, and an assurance from the officer that any results of a preliminary alco-sensor breath test would not be admissible against her, Harkleroad agreed to take the test, which showed a positive result. At this point, the officer placed her under arrest, read her the implied consent warning, and transported her to police headquarters.

At headquarters, Harkleroad’s first Intoxilyzer breath sample showed a blood alcohol level of 0.094. When the officer asked her to provide a second sample, Harkleroad began coughing and said that she was asthmatic. Shortly afterward, she provided a second sample. The officer informed Harkleroad that she had the right to an independent test and gave her a telephone book for the purpose of arranging such a test. More than an hour later, however, she had not succeeded in making arrangements.

After she was charged with less-safe and blood-alcohol-level DUI as well as speeding, Harkleroad moved to exclude the results of the HGN test on the ground that the officer’s strobe lights had interfered with his administration of the test. Harkleroad also moved to suppress the results of the Intoxilyzer test on the grounds that there was no probable cause to arrest her and that her asthma attack had rendered the test unreliable. After a hearing, the trial court denied both motions. Ajury found Harkleroad guilty of unlawful-blood-level DUI and speeding. Her motion for new trial was denied.

1. Harkleroad first argues that the trial court erred in denying her motions to suppress the HGN and Intoxilyzer tests because the officer lacked probable cause to arrest her. We disagree.

We apply three principles when we review a trial court’s denial of a motion to suppress:

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

More specifically, a police officer’s purpose during a traffic stop “is to enforce the laws of the roadway, and ordinarily to investigate the manner of driving with the intent to issue a citation or warning. Once the purpose of that stop has been fulfilled, the continued detention of the car and the occupants amounts to a second detention.” “[A] law enforcement officer’s continued questioning of a vehicle’s driver and passengers outside the scope of a valid traffic stop passes muster under the Fourth Amendment . . . when the officer has a reasonable articulable suspicion of other illegal activity.” “Whether a given set of facts rises to the level of reasonable, articulable suspicion of criminal activity is a legal question.” Finally, a police officer may arrest a suspect for DUI when the officer has “knowledge or reasonably trustworthy information that the suspect was actually in physical control of a moving vehicle, while under the influence of alcohol to a degree which renders him incapable of driving safely.”

(a) As a preliminary matter, we note that Harkleroad has abandoned her arguments made below that the HGN test was inadmissible because it was not performed properly. Specifically, and as part of her argument that probable cause for her arrest was lacking, she summarily suggests that the HGN test was improperly performed. Harkleroad has not contested the trial court’s finding below that the test was properly administered, however, and this Court has held that a motion to suppress is not the proper vehicle for challenging the admissibility of a blood-alcohol test “based merely on non-compliance with agency regulations governing the administration of such tests.”

(b) On appeal, Harkleroad attacks the officer’s behavior in obtaining the preliminary breath test, suggesting that the officer misled her as to the admissibility of that test against her at trial, deceived her when he suggested that he would not have to take her to the station if she took the test, and intimidated her when he repeatedly demanded that she take the test. As the trial court pointed out in its order denying Harkleroad’s motion for new trial, however, none of Harkleroad’s numerous pre-trial filings moved to exclude the results of the preliminary breath test itself. Even if she had objected to the introduction of these results on constitutional grounds at trial, moreover, which she did not, such an objection would have been untimely. Harkleroad has thus waived any argument concerning the admissibility of the preliminary breath test.

(c) To the extent that Harkleroad is asserting that the Intoxilyzer result should be suppressed because the officer obtained that result by misrepresenting whether the results of the preliminary breath test were admissible, we note that the only grounds asserted in her written motion to suppress the Intoxilyzer result were that the officer lacked probable cause to arrest her and that the result was unreliable because of her asthmatic condition. It is only when an officer’s method of obtaining evidence by force or deception is “so shocking to the conscience as to violate [a] defendant’s Fourth Amendment rights” that the evidence must be suppressed. As the trial court noted, Harkleroad did not assert below, and she has not argued on appeal, that the arresting officer’s behavior in this case reached this level of wrongfulness.

Putting any issue as to the preliminary breath test results aside, then, the trial, court was entitled to conclude not only that Harkleroad’s speeding, her bloodshot eyes, and the odor of alcohol coming from the car gave the officer reasonable and articulable suspicion to detain her for the purpose of administering the HGN test, but also that when Harkleroad failed that test, the officer had probable cause to arrest her for DUI.

Decided August 29, 2012.

William G. Maston, for appellant.

Larry Chisolm, District Attorney, Jennifer L. Easley, Assistant District Attorney, for appellee.

For all these reasons, the trial court did not err when it denied Harkleroad’s motions to suppress.

2. Given our rejection of Harkleroad’s arguments that the results of the tests performed on her should have been suppressed, there is no merit to her claim that the evidence was insufficient to support her conviction for driving under the influence of alcohol in violation of OCGA § 40-6-391 (a) (5).

3. Harkleroad also argues that the state made an improper closing argument when it pointed out that she had failed to produce medical records or expert testimony in support of her asthma defense. No objection to this portion of the argument was made at trial, however. It follows that no argument concerning it has been preserved for our review.

4. As the trial court noted, Harkleroad never asked for a continuance to arrange for additional expert testimony, and there is nothing in the record before us to show that she did not announce ready at the outset of the trial. It follows that she has waived any argument that a continuance was necessary for that purpose.

Judgment affirmed.

Miller and Ray, JJ., concur.

       (Citation omitted.) Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004).

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

       (Footnote and emphasis omitted.) Ware v. State, 309 Ga. App. 426 (710 SE2d 627) (2011).

       (Citation and punctuation omitted.) Salmeron v. State, 280 Ga. 735, 736 (1) (632 SE2d 645) (2006).

        Daniel v. State, 277 Ga. 840, 841 (1) (597 SE2d 116) (2004), overruled on other grounds, Salmeron, supra at 738.

       (Citation, punctuation and footnote omitted.) Jones v. State, 253 Ga. App. 870, 873 (560 SE2d 749) (2002).

       (Citation and punctuation omitted.) Frederick v. State, 270 Ga. App. 397, 398 (606 SE2d 615) (2004).

       (Citation omitted.) Smith v. State, 185 Ga. App. 531, 531 (2) (364 SE2d 907) (1988).

       See Hatcher v. State, 224 Ga. App. 747, 748-749 (1) (482 SE2d 443) (1997) (“Failing to file a timely motion to suppress amounts to a waiver of even constitutional challenges”) (citation omitted).

       Id.; see also Ruffin v. State, 201 Ga. App. 792 (1) (412 SE2d 850) (1991).

       (Citation omitted.) Merriweather v. State, 228 Ga. App. 246, 248 (3) (491 SE2d 467) (1997).

        See Hann v. State, 292 Ga. App. 719, 721 (2) (665 SE2d 731) (2008) (as trier of fact, atrial court did not clearly err when it credited officer’s version of events leading up to administration of HGN test and thus when it denied defendant’s motion to suppress the results of the test).

       See Steinberg v. State, 286 Ga. App. 417, 420 (2) (650 SE2d 268) (2007) (officer’s training, defendant’s admission to ingesting alcohol, his failure to maintain lane, his performances on field sobriety tests, and the strong odor of alcohol provided probable cause to arrest defendant for DUI); Cann-Hanson v. State, 223 Ga. App. 690, 691 (1) (478 SE2d 460) (1996) (even without field sobriety test results including HGN test, an officer’s observation of bloodshot eyes and “faint” odor of alcohol provided probable cause to arrest defendant for DUI).

       OCGA § 40-6-391 (a) (5) defines DUI as driving with a blood alcohol concentration of “0.08 grams or more at any time within three hours after such driving.” See Jackson, supra; Cann-Hanson, supra at 691-692 (2).

        Smith v. State, 277 Ga. 213, 218 (11) (b) (586 SE2d 639) (2003).

       See Vining v. State, 195 Ga. App. 816, 817 (2) (395 SE2d 17) (1990) (announcement of ready waives right to a continuance; trial court did not abuse its discretion denying a motion for continuance made on day of trial).


author: Adams, Judge.

text:
    A12A1082.
    CALLAHAM v. THE STATE.
    (732 SE2d 88)
   Adams, Judge.

Anthony Callaham was tried and convicted of aggravated assault and possession of a firearm during the commission of a felony in connection with his shooting Kenneth Threats. He was sentenced to fifteen years to serve for aggravated assault and five years probation on the firearm charge. This Court reversed the conviction and remanded for new trial because the trial court expressed an opinion as to the credibility of a witness in violation of OCGA § 17-8-57. See Callaham v. State, 305 Ga. App. 626, 628 (1) (700 SE2d 624) (2010). On retrial, Callaham was again convicted of aggravated assault, but the jury deadlocked on the firearm charge. The same judge again sentenced Callaham to 15 years to serve, but this time he ordered Callaham to pay the victim restitution. On appeal from the second conviction, Callaham contends the trial court erred in connection with giving the jury an Allen charge and erred by ordering restitution in favor of the victim when none had been ordered following the first trial.

The record shows the following procedural events. The second trial and closing argument occurred on a single day, whereupon the jury was sent home to return at 10:00 a.m. the next day for the jury charge. Neither side objected to that procedure. The next morning, the court charged the jury, following which there were no objections, and the jury began deliberations just before 10:35. At 11:10 a.m., the jury asked the court to repeat the definition of aggravated assault, to which there was no objection. Some time thereafter, the jury asked if they could read the testimony of two witnesses; the judge denied the request and, without objection, instructed the jury that they must rely on their collective memories concerning all testimony. The jury also noted that they were “hung up,” and the State asked for an Allen charge; the court declined, and the jury continued deliberations. This all occurred prior to lunch; the jury had been deliberating for about two hours at this point.

Some unknown time thereafter, the court gave an Allen charge without objection. At 3:40 p.m., the jury indicated that they had reached a verdict on Count 1 — aggravated assault — but that they were deadlocked on Count 2. The verdict of guilty on Count 1 was announced, following which the judge commented, “Never seen a jury so upset in trying to reach a verdict.”

The prosecutor then raised the issue of restitution, and she introduced evidence regarding the amount. Callaham objected on the ground that the sentence at the first trial did not include a restitution order, that the sentence likely would not include probation, and that the evidence at the two trials was essentially the same. Ultimately, the court sentenced Callaham to 15 years with a condition that he make restitution of more than $13,000; Callaham renewed his objections.

1. Callaham argues that in light of the total charge, the Allen charge as given “was so coercive as to cause a juror to abandon an honest conviction for reasons other than those based upon the trial or argument of other jurors.” Although Callaham did not object to the content of the Allen charge or the aspects of the general charge about which he complains, he contends on appeal that the trial court’s charge amounted to plain error affecting his substantial rights, thereby invoking review under OCGA § 17-8-58 (b). See State v. Kelly, 290 Ga. 29, 32 (1) (718 SE2d 232) (2011) (“[Ajppellate review for plain error is required whenever an appealing party properly asserts an error in jury instructions.”).

In Kelly, our Supreme Court adopted the federal standard for determining plain error, as well as this succinct wording of the test:

“(t)he proper inquiry ... is whether the instruction .. . was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings.” [Cit.] If all three of these questions are answered in the affirmative, the appellate court has the discretion to reverse if the error seriously affects the fairness, integrity, or public reputation of the proceedings below. [Cit.]

Id. at 33 (2) (a). Furthermore, “(t)he hurdle to establishing plain error is high. . . .” Id.

Under the first test •— whether the instructions were erroneous —“[o]ur task is to determine whether the Allen charge..., considered as a whole, was so coercive as to cause a juror to abandon an honest conviction for reasons other than those based upon the trial or the arguments of other jurors.” (Citations and punctuation omitted.) Humphreys v. State, 287 Ga. 63, 81 (9) (b) (694 SE2d 316) (2010).

Callaham starts by showing the court failed to give this portion of the pattern charge on the related topic of deliberations, in particular, the two emphasized parts:

You should start your deliberations with an open mind. Consult with one another and consider each other’s views. Each of you must decide this case for yourself, but you should do so only after a discussion and consideration of the case with your fellow jurors. Do not hesitate to change an opinion if you are convinced that it is wrong. However, you should never surrender an honest opinion in order to be congenial or to reach a verdict solely because of the opinions of the other jurors.

(Emphasis supplied.) Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 1.70.30. He then complains that the court’s version of the Allen charge did not include this language from the pattern charge, in particular, the emphasized part:

It is the law that a unanimous verdict is required. While this verdict must be the conclusion of each juror and not a mere acquiescence of the jurors in order to reach an agreement, it is nevertheless necessary for all of the jurors to examine the issues and questions submitted to them with candor and fairness and with a proper regard for and deference to the opinion of each other. A proper regard for the judgment of others will greatly aid us in forming our own judgment.

Id. § 1.70.70. Without the above emphasized language, together with the missing charge on deliberations, Callaham argues, the Allen charge actually given by the trial court was “impermissibly coercive” because it overly stressed that “Each juror should listen to the arguments of the other jurors with a disposition to be convinced by them.”

Our Supreme Court has found acceptable essentially the same Allen charge as given here. First, this Court had held that it was reversible error for the trial court to give an Allen charge that failed to include two cautionary phrases, which are essentially the same phrases about which Callaham complains were missing here: (1) “that no juror is required to surrender his or her opinion because of the honest different opinion with another juror or other jurors, for the purpose of reaching a unanimous verdict”; and (2) that “this verdict must be the conclusion of each juror and not a mere acquiescence of the jurors in order to reach an agreement if they can conscientiously do so.” Greeson v. State, 138 Ga. App. 572, 573-574 (3) (226 SE2d 769) (1976). But the Supreme Court summarily reversed on the ground that the decision was “in conflict with Spaulding v. State, 232 Ga. 411 (4) (207 SE2d 43) (1974)”; this is despite the fact that in Spaulding the following language was present: “this verdict must be the conclusion of each juror and not a mere acquiescence of the jurors in order to reach an agreement.” See State v. Greeson, 237 Ga. 193 (1) (227 SE2d 324) (1976). The Supreme Court’s decision in Greeson has been repeatedly followed for this point:

[T]he holding in Greeson that the “Allen” charge must include cautionary words to the jurors not to surrender their conscientious convictions has been reversed by the Supreme Court. State v. Greeson, 237 Ga. 193 (227 SE2d 324) (1976).

Bankston v. State, 149 Ga. App. 759, 760 (3) (256 SE2d 122) (1979). See also Wilson v. State, 145 Ga. App. 315, 321 (4) (c) (244 SE2d 355) (1978). Thus, we are constrained to find no error in the content of the Allen charge as given nor error regarding the combined effect of not charging the standard charge on deliberations and the omission of the relevant language in the Allen charge.

2. Callaham contends the restitution order was illegal and void for two reasons: (1) it was improper to award restitution when restitution was not ordered as a part of the sentence following the first trial; and (2) it was improper to award restitution with a straight prison term with no probation.

(a) With regard to the first argument, “the Due Process Clause of the Fourteenth Amendment prevent [s] increased sentences when that increase [is] motivated by vindictiveness on the part of the sentencing judge.” Texas v. McCullough, 475 U. S. 134, 137 (II) (106 SC 976, 89 LE2d 104) (1986). And, “restitution is punishment when ordered as part of a criminal sentence.” (Citation and footnote omitted.) Harris v. State, 261 Ga. 859, 860-861 (2) (413 SE2d 439) (1992). Thus, an increase in restitution upon retrial is subj ect to this rule. See generally United States v. Feldman, 825 F2d 124, 132 (7th Cir. 1987); United States v. Haddock, 50 F3d 835, 840 (C) (10th Cir. 1995) (raising but not deciding the same argument).

“[W]henever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for . . . doing so must affirmatively appear.” North Carolina v. Pearce, 395 U. S. 711, 726 (89 SC 2072, 23 LE2d 656) (1969). This rule establishes “a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence.” Wasman v. United States, 468 U. S. 559, 565 (II) (104 SC 3217, 82 LE2d 424) (1984). But where the record shows no reasonable likelihood that the increased sentence was the product of actual vindictiveness, there is no basis for a presumption, and the burden remains on the defendant to prove actual vindictiveness. Alabama v. Smith, 490 U. S. 794, 799-800 (109 SC 2201, 104 LE2d 865) (1989); Wasman, 468 U. S. at 569 (II).

Here, Callaham was convicted of both aggravated assault and possession of a firearm during the commission of a felony at the first trial, but the first conviction was reversed because of judicial misconduct. Callaham was only convicted of aggravated assault at the second trial, yet he received a greater sentence as a result of the restitution order. We conclude that the Pearce presumption applies. We therefore look to see if there is objective information in the record justifying the increased sentence.

Although restitution might have been discussed following the first trial, none was ordered. The defense attorney admitted, “The first sentence only addressed time. There’s no restitution order.” After the verdict was announced following the second trial, the prosecutor stated that she had evidence of “the total bill of medical expenses and lost wages for [the victim],” and evidence of “how much he’s been paid out through the State, how much he can accept, how much more money he has access to, which will leave a difference of a certain amount of money.” That evidence was then presented.

The court then ordered restitution in “any amount [of the victim’s damages] that’s not covered by the State.” Further discussion clarified that because the victim had total damages greater than that paid or available through the victim’s assistance fund, the court was going to order restitution to the victim of the amount of his damages not covered by the State’s victim assistance fund. The court eventually entered an award of $13,378.69.

It is apparent from the evidence presented that some of the information about the victim’s damages came from a time after the sentencing following the first trial. Given that, together with the evidence presented regarding the victim’s damages and compensation from the State, we conclude that there is objective information in the record justifying the restitution order thereby rebutting the Pearce presumption.

(b) Callaham relies on Queen v. State, 210 Ga. App. 588 (436 SE2d 714) (1993), for the assertion that restitution cannot be awarded without a sentence that includes probation. But Queen was based on language that has been removed from the relevant statute by amendment, and it is therefore no longer controlling on this issue. Queen relied on the fact that, at the time, “[a] restitution order [was] one which requires an offender to make restitution as a condition of‘relief granted to an offender,’ OCGA § 17-14-2 (8)”; and based on the definition of relief, the court held that restitution could not be ordered where the defendant was sentenced only to confinement. Id. at 589 (2). But in 2005, that Code section was amended, and the phrase “as a condition or term of any relief granted to an offender” was deleted. See Ga. L. 2005, p. 88, § 5 (and same condition deleted from OCGA § 17-14-3). Under the current law, restitution may be ordered “in addition to any other penalty imposed by law.” OCGA § 17-14-3. See also OCGA § 17-14-2 (8) (“ ‘Restitution order’ means any order, decree, or judgment of an ordering authority which requires an offender to make restitution.”). Accordingly, we find no error.

Decided August 29, 2012.

Robert L. Wadkins, Victoria L. Novak, for appellant.

Julia Fessenden Slater, District Attorney, LetitiaA. Sikes, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes, P. J., and McFadden, J., concur.

       See Allen v. United States, 164 U. S. 492, 501 (9) (17 SC 154, 41 LE 528) (1896).

       The State misreads Callaham’s argument. He does not contend it was a breach of discretion to give the Allen charge; rather, he contends the content of the Allen charge and the charge as a whole amount to plain error. Compare Contreras v. State, 314 Ga. App. 825, 826-827 (2) (726 SE2d 107) (2012) (challenging circumstances in which charge was given but not the terms of the charge itself).

       The trial court in this case gave this version of the Allen charge:
      Your verdict should be a true verdict based on your opinion of the evidence according to the laws given to you in the charge. You are not to show favor or sympathy for one party or the other. It’s your duty to consider the facts objectively ■ without favor, affection, or sympathy for either party.
      You’ve been deliberating upon the case for a considerable period of time. The Court deems it proper to advise you further.
      This case has been exhaustively and carefully tried by both sides and has been submitted to you ... for a decision and verdict, if possible, and not for disagreement. Each juror should listen to the arguments of the other jurors with a disposition to be convinced by them. If the members of the jury differ in their view of the evidence, the difference of opinion should cause them all to scrutinize the evidence more closely and to re-examine the grounds of your opinion.
      Your duty is to decide the issues that have been submitted to you if you can conscientiously do so.
      When you confer, you should lay aside all mere pride of opinion and should bear in mind that the jury room is no place for taking up and maintaining!,] in a spirit of controversy!,] either side of a case. You should bear in mind at all times that[,] as jurors, you should not be advocates for either side. You should keep in mind the truth as it appears from the evidence, examined in light of the instructions of the court.
      May you please again retire and try to reach a verdict.

       The Supreme Court clarified “that due process does not in any sense forbid enhanced sentences or charges, but only enhancement motivated by actual vindictiveness toward the defendant for having exercised guaranteed rights.” Wasman v. United States, 468 U. S. 559, 568 (II) (104 SC 3217, 82 LE2d 424) (1984).

       Also, a sentencer is not limited to events occurring subsequent to the original sentencing: Pearce permits “a sentencing authority (to) justify an increased sentence by affirmatively identifying relevant conduct or events that occurred subsequent to the original sentencing proceedings.” Wasman, 468 U. S., at 572[, 104 SC at 3225]; [eit.]. This language . . . was never intended to describe exhaustively all of the possible circumstances in which a sentence increase could be justified. Restricting justifications for a sentence increase to only “events that occurred subsequent to the original sentencing proceedings” could in some circumstances lead to absurd results.

        McCullough, 475 U. S. at 141 (III).

       A witness gave detailed evidence regarding the amount the victim had been compensated by the State for lost wages ($10,000); the amount paid by the State to the victim’s medical providers ($1,621.61); the victim’s total medical bills and, apparently, lost wages ($38,413.69); and the amount of victim assistance money still available from the State ($13,378.39). The victim testified that he had been receiving calls from collection agents, and he indicated that he still has medical issues that have not been addressed. He had moved to Texas and did not realize that he should be submitting his claims to the victim’s assistance office in Georgia. The court instructed the victim that if he had any additional medical bills that they must be submitted to the State in order to receive victim assistance funds. The prosecutor agreed to work with the victim and victim’s assistance in order to obtain further compensation from the State for the outstanding bills.


author: Miller, Judge.

text:
    A12A1392.
    GARRETT v. THE STATE.
    (732 SE2d 93)
   Miller, Judge.

Following a jury trial, Clinton Dean Garrett was convicted of burglary (OCGA § 16-7-1 (a)). Garrett filed a motion for new trial, which the trial court denied. On appeal, Garrett contends that the evidence was insufficient to support his conviction. Discerning no error, we affirm.

On appeal from a criminal conviction, we view the evidence in a light most favorable to the prosecution to determine whether the evidence was sufficient to prove guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979); Goss v. State, 305 Ga. App. 497 (699 SE2d 819) (2010). “It is solely within the purview of the factfinder to weigh conflicting evidence and judge the credibility of the witnesses.” (Footnote omitted.) Benyard v. State, 311 Ga. App. 127 (714 SE2d 746) (2011).

So viewed, the evidence shows that the victim owned ten chicken houses located in Franklin County, Georgia. Although the chicken houses had not been in use since February 2009, the victim still checked on them every day to look for leaks, listen for rats, turn on the lights, and confirm that nothing was missing. On April 12, 2010, the victim mowed the grass around the chicken houses. When the victim went to inspect the chicken houses the next day, he noticed tracks over the freshly cut grass, as well as an open front door to one of the chicken houses. Upon further inspection, the victim discovered that the copper wire had been cut and removed from the chicken house. The victim continued to inspect the other chicken houses and discovered that the copper wire had been cut and removed from three other houses, and that the wire had been cut, but not removed, from two other houses. The victim estimated that a total of60,000 feet of copper wire had been removed from his chicken houses. The victim called the police and met with the sheriff regarding the incident. Although the doors to the chicken houses were not locked, the victim had not given anyone permission to enter the houses.

On the evening of April 16, 2010, a captain with the Franklin County sheriffs department was assigned to continue surveillance of the victim’s farm. As the captain neared the location, he observed three people running by a vacant house. The captain followed them on foot until he found Garrett siting in some bushes in a field that was less than a mile from the victim’s farm. Garrett denied that he was one of the individuals who had been running and told the captain that he had been sitting in the bushes for the past hour because of an argument with his girlfriend. Garrett agreed to accompany the captain to Garrett’s home and allowed the captain to search the home for other individuals. The captain located Jason Bray, who resided in the home along with Garrett.

Law enforcement began night-time surveillance of Garrett’s home, at which time an officer observed buckets containing coil wiring. The officers later obtained receipts and invoices in Garrett’s name from PayDay Recycling in Royston, Georgia — a facility that recycles scrap metal. These records established that Garrett had been paid five different times in April 2010 for various amounts and types of copper wire that he brought to the facility. One of those dates specifically included the day after the burglary of the victim’s chicken houses, when Garrett sold PayDay Recycling 483 pounds of copper wire.

At trial, Bray testified that he and Garrett worked together to steal copper wire from the victim’s chicken houses. Bray explained that after he and Garrett collected copper wire from the victim’s chicken houses, they would dispose of it by taking it to PayDay Recycling. Bray further testified that Garrett also went by himself to steal wire from the victim’s chicken houses. According to Bray, the last time both he and Garrett had stolen wire from the victim’s chicken houses was four to five days before the police showed up at Garrett’s home on April 16, 2010.

Garrett contends on appeal that the evidence was insufficient to sustain his burglary conviction. We disagree.

OCGA § 16-7-1 (a) (2010) proscribed, in relevant part, that

[a] person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within ... any building,... or enters or remains within any other building,... or any room or any part thereof.

(Punctuation omitted.) Moreover,

[e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. One is concerned in the commission of a crime where the person either directly commits, intentionally causes another to commit, intentionally aids or abets the commission of, or intentionally advises or otherwise encourages another to commit the crime.

(Citations and punctuation omitted.) Sims v. State, 306 Ga. App. 68, 70 (1) (701 SE2d 534) (2010).

Despite Bray’s testimony regarding Garrett’s participation in the chicken house burglary, Garrett contends that the evidence was insufficient to sustain his conviction because no evidence existed to corroborate Bray’s testimony. It is true that

[a] defendant may not be convicted of a felony on the uncorroborated testimony of an accomplice. However, it is not required that this corroboration shall of itself be sufficient to warrant a verdict, or that the testimony of the accomplice be corroborated in every material particular. Slight evidence from an extraneous source identifying the accused as a participator in the criminal act will be sufficient corroboration of the accomplice to support a verdict. The sufficiency of the corroboration of the testimony of the accomplice to produce conviction of the defendant’s guilt is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting the defendant with the crime, it cannot be said, as a matter of law, that the verdict is contrary to the evidence.

(Citation omitted.) Finley v. State, 252 Ga. App. 66, 67-68 (2) (555 SE2d 523) (2001). Moreover, “the corroboration, which may include the defendant’s conduct before and after the crime, need only connect and identify the defendant with the crime.” (Citation and punctuation omitted.) Sims, supra, 306 Ga. App. at 70-71 (1).

Decided August 29, 2012

Harvey S. Wasserman, for appellant.

Robert W. Lavender, District Attorney, Adam C. Schroeder, Assistant District Attorney, for appellee.

Here, the evidence showed that Garrett was hiding in the bushes in a field near the victim’s chicken houses; that Garrett resided with Bray; that Garrett made a sale of copper wire to PayDay Recycling the day after the burglary; and that buckets of coil wiring were present at Garrett’s home after the burglary. This additional evidence more than satisfied the slight evidence requirement necessary to corroborate the testimony of Bray. Accordingly, the evidence was sufficient to authorize a rational jury to find Garrett guilty of burglary beyond a reasonable doubt.

Judgment affirmed.

Mikell, P. J., and Ray, J., concur.

       This statute was substantially amendedby Ga. L. 2012, p. 899, § 3-1, which didnot go into effect until July 1, 2012, after the offense occurred in this case. Thus, this case is considered under the prior version of the statute. See Ga. L. 2012, p. 899, § 9-1 (a).

       At the time of Garrett’s trial, Bray was serving time for the burglary of the victim’s chicken houses.