author: ELLINGTON, Presiding Judge.

text:
    A15A2242.
    BAUGHNS v. THE STATE.
    (782 SE2d 494)
   ELLINGTON, Presiding Judge.

A Clarke County jury found Justin Baughns guilty beyond a reasonable doubt of aggravated assault, OCGA § 16-5-21 (b) (2) (with a deadly weapon); and four counts of burglary in the first degree, OCGA § 16-7-1 (b). Following the denial of his motion for a new trial, Baughns appeals, contending that the trial court erred in admitting evidence of other acts and in admitting a custodial statement. For the reasons explained below, we affirm.

Viewed in the light most favorable to support the verdict, the evidence shows the following. In the last two weeks of November 2012, Baughns and two other young men committed a string of burglaries in Athens-Clarke County. In most of them, the burglars gained entry by using a tool to pry around a rear door or window, sometimes kicking in the door, and stole computers, televisions, and jewelry. Baughns participated in the burglaries primarily as the driver, and he sold items stolen in the earlier burglaries to a pawn shop. From one burglary on November 26, the thieves obtained the victim’s handgun. One of Baughns’ accomplices carried that handgun during another burglary that same day, and, when the homeowner confronted the burglars with a knife, he shot and killed the man. The burglars left behind a tire iron that was consistent with the pry marks from several of the earlier burglaries.

The State charged the three men in a single indictment, which included six counts of burglary that named Baughns as a perpetrator and five counts of burglary that did not name Baughns as a perpetrator. At Baughns’ separate trial, the State, over Baughns’ objection, introduced evidence of all 11 burglaries. Also over Baughns’ objection, the State offered evidence of an inculpatory statement Baughns gave while in custody on December 12, 2012, and the State played a video recording of the interview for the jury. In that statement, Baughns admitted picking up one of his co-defendants in his car and dropping him off at the time and location of one of the burglaries and, in a borrowed car, driving both of his co-defendants to the location of the last burglary and waiting for them in the car.

1. Baughns contends that the five burglaries charged in the indictment that did not name him as a perpetrator were extrinsic acts that were irrelevant to his guilt as to the six counts of burglary that did name him. He argues that the evidence had at best a very slight probative value in explaining how one of his co-defendants came into custody, which value was substantially outweighed by the prejudicial effect of the evidence, and that the evidence was therefore inadmissible under OCGA §§ 24-4-403 and 24-4-404 (b). “Evidentiary rulings are reviewed under an abuse of discretion standard[.]” (Citation omitted.) Reeves v. State, 294 Ga. 673, 676 (2) (755 SE2d 695) (2014).

In response to Baughns’ objection at trial, the State argued that Baughns and his co-defendants were indicted as co-conspirators in “a burglary spree” and that the evidence would show that for each of the burglaries Baughns would drive the others to the residences to be burgled. The trial court determined that, even if the evidence of the uncharged burglaries did not directly implicate Baughns, those burglaries arose out of the same burglary spree as the charged burglaries and therefore the evidence was admissible as being intrinsic to the charged offenses.

Under longstanding Georgia law, all the acts and circumstances surrounding and constituting the res gestae are admissible, despite the fact that they may reflect poorly on a defendant’s character. This rule carried forward to the new Evidence Code under the concept of “intrinsic facts” evidence, as compared to evidence of “extrinsic acts” which are generally inadmissible pursuant to OCGA § 24-4-404 (b). Under relevant federal authority,

evidence is intrinsic to the charged offense, and thus does not fall within Rule 404 (b)’s ambit, if it (1) arose out of the same transaction or series of transactions as the charged offense; (2) is necessary to complete the story of the crime; or (3) is inextricably intertwined with the evidence regarding the charged offense.

(Citation and punctuation omitted.) United States v. Nowak, 370 Fed. Appx. 39, 41 (I) (11th Cir. 2010). See also United States v. Edouard, 485 F3d 1324, 1344 (II) (C) (11th Cir. 2007) (accord). Moreover,

[e]vidence, not part of the crime charged but pertaining to the chain of events explaining the context, motive, and set-up of the crime, is properly admitted if linked in time and circumstances with the charged crime, or forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury.

(Citations omitted.) Id.

In this case, the uncharged offenses were part of a crime spree committed by a burglary crew of which Baughns was a part, even if there was no evidence that he directly participated in those offenses. All of the offenses were committed in a similar way, within a two-week period and in the same area of Athens-Clarke County, and included overlapping participants. Consequently, the trial court did not abuse its discretion in admitting evidence of the uncharged burglaries. Carter v. State, 269 Ga. 891, 892 (3), (4) (506 SE2d 124) (1998); Rust v. State, 264 Ga. App. 893, 897 (1) (592 SE2d 525) (2003); Sullivan v. State, 242 Ga. App. 839, 840-841 (3) (531 SE2d 367) (2000); Vick v. State, 211 Ga. App. 735, 737 (2) (440 SE2d 508) (1994); Baird v. State, 207 Ga. App. 44, 44-45 (1) (427 SE2d 37) (1993).

2. Baughns contends that the record shows that his December 12, 2012 custodial confession was induced by a hope of benefit and, therefore, that the trial court abused its discretion in admitting that confession.

“No person shall be compelled to give testimony tending in any manner to be self-incriminating.” Ga. Const. 1983, Art. I, Sec. I, Par. XVI. OCGA § 24-8-824 provides: “To make a confession admissible, it shall have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” The following Code section, OCGA § 24-8-825, provides: “The fact that a confession has been made under a spiritual exhortation, a promise of secrecy, or a promise of collateral benefit shall not exclude it.” The rules set out in OCGA §§ 24-8-824 and 24-8-825 “have appeared together since Georgia’s first code, see Code of 1863, §§ 3716-3717, and they are carried forward without any substantive change in the new Georgia evidence code that [took] effect on January 1, 2013.” (Citations omitted.) Brown v. State, 290 Ga. 865, 868 (2) (b), n. 1 (725 SE2d 320) (2012). Our appellate decisions have established that the phrase “the slightest hope of benefit” in OCGA § 24-8-824 is a term of art which must be understood in conjunction with the limitations set out in OCGA § 24-8-825 and “does not encompass every conceivable benefit that the police may offer a suspect in an effort to induce him to confess.” Brown v. State, 290 Ga. at 868 (2) (b). “It has also long been understood that ‘slightest hope of benefit’ refers to promises related to reduced criminal punishment — a shorter sentence, lesser charges, or no charges at all.” (Citations and punctuation omitted.) State v. Chulpayev, 296 Ga. 764, 771 (2) (770 SE2d 808) (2015). “The promise of a benefit that will render a confession involuntary under [OCGA § 24-8-824 (former] OCGA § 24-3-50D] must relate to the charge or sentence facing the suspect.” (Footnote omitted; emphasis supplied.) White v. State, 266 Ga. 134, 135 (3) (465 SE2d 277) (1996).

Thus, our courts have held that it is not a promise that relates to the charge or sentence facing the suspect under OCGA § 24-8-824 (and its predecessor statutes) where an interrogator merely promises to tell the prosecutor or the court that the suspect cooperated, accepted responsibility, was justified in connection with the offenses at issue, etc. This is so regardless whether the interrogator’s promise to relate such information might encourage the suspect to hope that, ultimately, other actors in the criminal justice system will be inclined to be more lenient — the prosecutor in drawing up charges, the finder of fact in determining guilt, the judge in imposing sentence, etc.

Whether a statement was made voluntarily is to be determined by assessing the totality of the circumstances. Where the facts surrounding a police interview are undisputed because the recorded interview is part of the appellate record, our review of the trial court’s admissibility ruling is de novo.

(Citations and punctuation omitted.) Johnson v. State, 295 Ga. 421, 424 (2) (761 SE2d 13) (2014).

In arguing that his confession is inadmissible as having been induced by a hope of benefit, Baughns points to the following exchanges that occurred during the December 12, 2012 interview, before he admitted that he drove his two co-defendants to the deceased victim’s home:

INVESTIGATOR: You had nothing to gain when we first spoke. You had nothing. You didn’t have warrants signed on you for murder when we first spoke. You have it now. OK? It’s a real thing. It’s not like it’s made up. . . .
To me this is the saddest part, OK? Your daughter is gonna grow up without a father. Pretty much the same way you grew up without a father. Which is horrible. And I’ve got to live with myself to be the person that’s making that happen. . . .
I have to be the one to tell your mom that her baby is going to prison. For life. I have to be the one to do that. . . .
I want to be able to say that [Baughns] was honest with me. He cooperated with me and he helped out. And he tried to get justice for [the deceased victim’s] family so that [Baughns] can give his family peace of mind knowing that he did the right thing and that he’ll be with them soon. As opposed to saying that [Baughns is] a hardcore mother fucker that’s going to prison for the rest of his life. . . . BAUGHNS: I hope [me talking will] change something, man.

Decided February 5, 2016.

Ryan M. Ignatius, Michael N. Brooks, for appellant.

Kenneth W. Mauldin, District Attorney, Brian V. Patterson, Assistant District Attorney, for appellee.

INVESTIGATOR: It’s gonna change something! . . .
BAUGHNS: I don’t want to go to jail for the rest of my life, but they said I did something. . . .
But [the other two perpetrators are] gonna get the same amount of time and they killed [the victim].[] INVESTIGATOR: Bullshit! Bullshit! That’s total bullshit! You’re gonna try and tell me that somebody [who is] sorry for what [he] did is gonna get the same time as a cold-blooded killer?!

In other exchanges throughout the interview, investigators repeatedly framed their inquiries in terms of what they wanted to be able to tell the judge. Any suggestions of a possible benefit were either completely nonspecific (e.g., “help yourself”) or along the lines of allowing Baughns to have more credibility with the jury for having been honest early. Under the totality of the circumstances, we conclude that any benefits promised by the investigators to induce Baughns’ confession did not relate to the charges or sentence he was facing in such a way as to render the confession inadmissible under OCGA § 24-8-824.

Judgment affirmed.

Dillard and McFadden, JJ., concur.

       Because this case was tried after January 1,2013, Georgia’s new Evidence Code applies. See Ga. L. 2011, pp. 99, 214, § 101.

       See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). This recitation of facts is based in part on the evidence which Baughns contends the trial court erroneously admitted. We have rejected his evidentiary challenges for the reasons discussed below.

       Specifically, these burglaries were of 295 Old Monroe Road on November 14; 170 Vaughn Road, Apartment 2, on November 19; 2006 South Milledge Avenue on November 20-21; and 502 Rustwood Drive, 130 Pair Oaks Drive, and 400 Jefferson River Road on November 26. Note: the jury found Baughns not guilty of the Rustwood Drive and Fair Oaks Drive burglaries.

       Specifically, these burglaries were of 212 Sleepy Creek Drive on November 16-23; 125 Cardinal Creek Place on November 20-21; 200 Timothy Road on November 23-25; 263 Arch Street on November 24; and 195 Pepperidge Lane on November 25-26.

       OCGA § 24-4-403 provides: “Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

       OCGA § 24-4-404 (b) provides, except as otherwise provided: “Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith.”

       See, e.g., Nash v. State, 285 Ga. 753, 754 (2) (a) (683 SE2d 591) (2009) (“Even though a defendant is not charged with every crime committed during a criminal transaction, every aspect of it relevant to the crime charged may be presented at trial”) (citation and punctuation omitted); Roberts v. State, 282 Ga. 548, 551 (6) (651 SE2d 689) (2007) (Evidence that, prior to shooting the victim, the defendant purchased marijuana from him was admissible as part of the res gestae because the defendant learned from that transaction that the victim was carrying money.); Igidi v. State, 251 Ga. App. 581, 583 (1) (554 SE2d 773) (2001) (“The state is entitled to present evidence of the entire res gestae of the crime. Even though a defendant is not charged with every crime committed during a criminal transaction, every aspect of it relevant to the crime charged may be presented at trial. This is true even if the defendant’s character is incidentally placed in issue.”) (punctuation and footnote omitted); see also Paul S. Milich, Ga. Rules of Evidence, § 11:3 (database updated October 2015) (“[A]ll the acts and circumstances surrounding and constituting the res gestae were admissible [under the old Evidence Code], despite the fact that they may reflect poorly on a party’s character.”) (footnote omitted).

       As Professor Milich explained:
      The Federal Rules of Evidence retired the term “res gestae” in . . . the . . . character rule context[ ] and the new 2013 Georgia rules do so as well. However, the essence of the doctrine in the context of the character rule remains the same with new terminology. Facts that are “intrinsic” to or “inextricably intertwined” with the events at issue at trial are generally admissible to give the factfinder a truer, contextual view of the material facts in the case. All of the facts and circumstances surrounding the crime for which the accused is charged are admissible as “intrinsic” despite the fact that the evidence may incidentally reflect poorly on the accused’s character... . [For example,] when the crime charged is part of a crime spree or “rampage” the entire chain of crimes can be proved at trial, even if they were not all charged, as they are all intrinsic to the offense.
      (Footnotes omitted.) Paul S. Milich, Ga. Rules of Evidence, § 11:3.

       See State v. Brown, 333 Ga. App. 643, 652, n. 21 (777 SE2d 27) (2015) (explaining extent to which Georgia’s courts look to federal evidence jurisprudence in applying our new Evidence Code).

       See also State v. Chulpayev, 296 Ga. 764, 771 (2) (770 SE2d 808) (2015).

        State v. Ray, 272 Ga. 450, 451-452 (2) (531 SE2d 705) (2000) (Where interrogators “posited a ‘hypothetical’ to [the defendant] indicating that when a murder is committed by two individuals, the party willing to testify against the other would have the possibility of not facing the death penalty... [and] intimated that [he] could save himself from execution by telling the officers truthfully about the crimes [,]” and when the defendant asked, “what would I get if I give the other guy up?”, an officer replied, “Possibly — here’s what I can tell you. Years of freedom[,]” the defendant’s ensuing confession was inadmissible as having been induced by a hope of benefit.); State v. Robinson, 326 Ga. App. 63, 66 (755 SE2d 869) (2014) (Where an interrogator told a suspect, who knew that his alleged accomplices were also being interviewed, “[t]he person that cooperates is the person that gets help[,]” that statement, viewed under the totality of the circumstances, did appear to offer the defendant “some hope of benefit — i.e., it indicates that if [he] cooperated truthfully with police, he would get a lighter sentence than his accomplices.”); Askea v. State, 153 Ga. App. 849, 851-852 (3) (267 SE2d 279) (1980) (“[T]he interrogating officer’s remark that ‘it (i.e., telling the truth) would probably help him in court’ [held] out at least some hope for reward by special consideration if the suspect cooperate[d]” and rendered the confession inadmissible.).

        Turner v. State, 296 Ga. 394, 395-396 (2) (768 SE2d 458) (2015) (no hope of benefit where an interrogator told the suspect that she should tell him how her baby received the injuries discovered on her body because it would be more difficult for her to explain them later to a jury or judge and that the court would drill her on such issues); Taylor v. State, 274 Ga. 269, 273-274 (2) (553 SE2d 598) (2001) (no hope of a benefit where an investigator told the suspect, in the context of her concerns about custody of her children, that he would help her in every way he could, that it might look good to the judge if she admitted her role in the crimes rather than lying, and that she had a golden opportunity to help herself), overruled in part on other grounds, State v. Chulpayev, 296 Ga. at 783 (3) (b); Gilliam v. State, 268 Ga. 690, 692 (3) (492 SE2d 185) (1997) (no hope of a benefit where interrogator told the suspect that it would help if he told the truth and that the judge would know that he confessed); State v. Jackson, 332 Ga. App. 356, 357 (772 SE2d 804) (2015) (no hope of a benefit where an investigator told the suspect that, if he were not honest with the police, he would not be helping his child, who was going to need both parents, and that the only way out of jail and to look to the future was to be honest); Cooper v. State, 257 Ga. App. 896, 898 (1) (572 SE2d 417) (2002) (no hope of benefit where an investigator told the suspect that he was going to be the prosecuting officer and that he would like to be able to tell the judge that the suspect was honest and cooperated with him); Frei v. State, 252 Ga. App. 535, 537-538 (2) (b) (557 SE2d 49) (2001) (no hope of a benefit where an investigator told the suspect that he would let the district attorney know that he had cooperated and that he would do what he could to help the suspect).

       The trial court transcribed this response, which occurred after an investigator began explaining about the liability of parties to a crime, slightly differently, as “But that gets the same amount of time that gets for the killing.”

       See cases cited in footnote 12, supra.


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A15A1735.
    ROBERSON v. THE STATE.
    (782 SE2d 671)
   Branch, Judge.

Necole “Nick” Roberson appeals her conviction and sentence of misdemeanor family-violence simple battery arising out of an altercation with her son during which Roberson injured her son by throwing a pot of boiling water at him. See OCGA § 16-5-23.1 (f).

The record shows that Roberson pled not guilty, filed a request to be represented by an attorney, and averred that she was indigent and could not afford an attorney. A public defender was appointed to represent her, and the case proceeded to trial. On March 26, 2014, a jury found Roberson guilty of the charge, and on April 24, 2014, the court entered the conviction and sentenced Roberson to 12 months, with 30 days confinement suspended upon proof of an evaluation by a licensed psychiatrist and the balance on probation. On April 29, 2014, Roberson filed her notice of appeal together with an affidavit of poverty in which she asserted that on account of her poverty she was “unable to pay the fees and costs normally required.” The notice of appeal did not indicate, however, that any transcripts would be filed, and no trial transcript has been included in the appellate record before us.

On September 8, 2014, Roberson moved in the trial court to obtain a transcript of the trial without charge on the ground that she was indigent and did not have sufficient funds to pay for a transcript in order to appeal. In response to the motion, the court expressed concern about Roberson’s financial status, indicating that “during the trial Ms. Roberson testified that she had recently moved into a nice house.” The court therefore asked for “proof or evidence of [Roberson’s] indigence before approving transcription at the expense of the Court.” On April 22, 2015, following a hearing on the matter, the trial court denied the motion as follows:

Based upon testimony presented during the trial of the case before this Court, the Court had doubts as to Defendant’s indigence and requested evidence of same prior to providing the transcript at the Court’s expense. Defense having failed to provide any such evidence either at the hearing or thereafter, despite specific requests by the Court and very specific direction as to what evidence might suffice, and despite the Court’s agreement to withhold ruling pending submission of any such evidence, the motion is hereby DENIED.

The appellate record does not include a transcript of the hearing on the motion for a trial transcript.

Roberson contends the trial court erred (1) by excluding evidence of prior difficulties between Roberson and her son; (2) by excluding evidence of her son’s prior acts of violence against a third party; and (3) by denying her motion for a transcript free of charge.

1. We first address the denial of Roberson’s motion for a trial transcript without charge for purposes of appeal, which concerned the question of Roberson’s indigence.

“The judgment of the court on all issues of fact concerning the ability ofa party to pay costs or give bond shall be final.” OCGA § 9-15-2 (a) (2); see Penland v. State, 256 Ga. 641, 641 (352 SE2d 385) (1987) (upholding constitutionality of this rule of finality on questions of indigence in a criminal case, including for the purpose of obtaining a copy of a trial transcript at government expense). Accordingly, the trial court’s decision regarding Roberson’s ability to pay for a trial transcript is affirmed.

Roberson contends this rule and recent precedent overlook OCGA § 17-12-24 (a), which is part of the Georgia Indigent Defense Act of 2003 (the “IDA”). That Code section provides that the decision whether an arrested person is indigent for the purpose of obtaining representation by an attorney under the IDA rests with the public defender’s office:

The circuit public defender, any other person or entity providing indigent defense services, or the system established pursuant to Code Section 17-12-80 shall determine if a person or juvenile arrested, detained, or charged in any manner is an indigent person entitled to representation under this chapter.

OCGA § 17-12-24 (a). Thus, as this Court has held, a trial court now lacks the authority to rule on motions for appointment of counsel; such motions should be directed to the circuit public defender office instead. Bynum v. State, 289 Ga. App. 636, 637 (658 SE2d 196) (2008). As this Court has explained:

Prior to the passage of [the IDA], trial courts exercised considerable control over the indigent defense process, including the appointment of counsel to represent indigent defendants. See former OCGA § 17-12-4 et seq. (2002). Following the passage of the IDA, however, public defender offices were established in each judicial circuit of the State. Defendants charged with felonies now apply directly to these offices, rather than to the trial court, for indigent representation. See OCGA §§ 17-12-20; 17-12-27 et seq.

Odum v. State, 283 Ga. App. 291, 292 (641 SE2d 279) (2007); see, e.g., Calmes v. State, 312 Ga. App. 769, 774 (3) (719 SE2d 516) (2011) (circuit public defender denied defendant’s request for new appellate counsel).

Roberson argues that with regard to whether she was entitled to a trial transcript free of charge, the trial court was required to accept the public defender’s determination that Roberson was indigent. As a part of her argument, Roberson asserts that the public defender’s office re-interviewed her after trial and determined that she was still indigent. For the reasons shown below, we disagree that the trial court was required as a matter of law to follow the public defender’s determination of indigence, and we hold that Roberson has not shown that the trial court abused its discretion when making its own determination on the matter.

The interpretation of the IDA, like all other statutes, is a question of law, “and the rules of statutory construction require us to give words their plain and ordinary meaning.” Odum, 283 Ga. App. at 292 (citation omitted). Our review shows that nothing in the IDA provides that the public defender office’s determination regarding a defendant’s status as indigent for the purpose of representation automatically applies to a determination of indigence for the purpose of requiring the county to provide an appellate transcript free of charge to an indigent defendant. In fact, transcripts are not specifically mentioned at any place in the IDA. And although the IDA requires the Georgia Public Defender Standards Council to pay the costs of defense for an indigent defendant, this Court has already held that the cost of a trial transcript is not a cost of providing a defense under IDA and is to be borne, therefore, by the county. Ga. Public Defender Standards Council v. State of Ga., 284 Ga. App. 660, 664 (2) (644 SE2d 510) (2007) (“Payment for these transcripts is an obligation of the State, and our law requires that the counties pay for transcripts.”) (citation and footnotes omitted). Thus, although the IDA provides that the public defender offices established by the IDA are required to determine whether a defendant is indigent for the purpose of providing a defense, that determination does not control a county’s obligation to provide an appellate transcript. Cf. Mitchell v. State, 280 Ga. 802 (1) (633 SE2d 539) (2006) (“The right to a free transcript arises regardless of whether the indigent defendant was represented by retained counsel at the time of the trial court proceeding for which the transcript is sought.”) (citation omitted). And because the IDA does not pertain to a determination of indigence for the purpose of providing a transcript free of charge to indigent defendants, it follows that the trial court retains discretion, as described above, to determine whether a defendant is indigent for the purpose of holding a county responsible for the cost of a transcript.

Decided February 8, 2016

Brooke M. Ray, for appellant.

Kellie K. McIntyre, Solicitor-General, Matthew M. Andrews, Assistant Solicitor-General, for appellee.

Here, because the court was concerned that Roberson’s indigent status was suspect, the court held an evidentiary hearing, as it was authorized to do, on whether Roberson was entitled to a trial transcript at county expense. As shown above, that decision is not subject to review and is therefore affirmed.

2. Because Roberson’s remaining enumerations of error depend upon information contained in the trial transcript, which Roberson has failed to provide or to provide a meaningful substitute, Roberson cannot show any error on those claims as well. Ford v. State, 306 Ga. App. 606, 610 (3) (703 SE2d 71) (2010).

Judgment affirmed.

Andrews, P. J., concurs. Miller, P. J., concurs in judgment only.

       Although we do not condone the State’s failure to timely file its appellate brief, this Court is not required to refuse to consider an untimely brief nor hold the late-filing party in contempt. See Court of Appeals Rule 23 (b) (“Failure to timely file may result in non-consideration of the brief and may subject counsel to contempt.”) (emphasis supplied); see, e.g., Carter v. State, 267 Ga. App. 520, n. 1 (600 SE2d 637) (2004) (appellant’s motion to dismiss State’s brief as untimely and to hold State in contempt was denied).

       Recentcase lawholds that “[t]he determination ofwhether a defendant is indigent.. .lies within the discretion of the trial court, and this determination is not subject to review”; furthermore, “[w]e will not look behind the court’s determination of indigence.” Breazeale v. State, 290 Ga. App. 632, 636 (8) (660 SE2d 376) (2008) (punctuation and footnotes omitted); Thomas v. State, 297 Ga. App. 416, 420 (3) (677 SE2d 433) (2009); Patel v. State, 283 Ga. App. 181, 183 (1) (641 SE2d 184) (2006); see also Leavell v. State, 331 Ga. App. 304, 305 (771 SE2d 48) (2015) (“Whether a defendant is indigent is a matter for the trial court’s discretion.”) (citation omitted).

       The Georgia Public Defender Council, established by the IDA as an independent agency within the executive branch of state government, is responsible “for assuring that adequate and effective legal representation is provided, independently of political considerations or private interests, to indigent persons who are entitled to representation under this chapter.” OCGA § 17-12-1.

       It follows that it is not necessary to overrule any of the cases cited in footnote 2 of this opinion.

       In the absence of a traverse affidavit contesting the truth of an affidavit of indigence, the court may inquire into the truth of the affidavit of indigence. After a hearing, the court may order the costs to be paid if it finds that the deposit, fee, or other costs can be paid and, if the costs are not paid within the time permitted in such order, may deny the relief sought.
      OCGA § 9-15-2 (b).


author: BARNES, Presiding Judge.

text:
    A15A1745.
    LOCKRIDGE v. THE STATE.
    (782 SE2d 674)
   BARNES, Presiding Judge.

Following his conviction of felony theft by shoplifting and the denial of his motion for new trial, Kenneth Lockridge appeals. Lockridge contends that the evidence was insufficient to prove guilt beyond a reasonable doubt, that his trial counsel fell below an objective standard of reasonableness for failure to conduct a meaningful investigation, and that the trial court erred by denying his motion for new trial based on newly discovered evidence. For the reasons set forth below, we affirm.

At trial, the jury found Lockridge guilty of felony theft by shoplifting. Lockridge moved for a new trial on the basis of new evidence, a surveillance video recording. After a hearing on the motion and watching the video in question, the trial court denied Lockridge’s motion for new trial. Lockridge filed a timely appeal.

1. First, Lockridge contends that the evidence was insufficient to support his conviction for felony theft by shoplifting. Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to sustain the verdict. Anthony v. State, 317 Ga. App. 807 (732 SE2d 845) (2012).

So viewed, the evidence shows that Lockridge was arrested for shoplifting at Home Depot in May 2011. An employee noticed Lock-ridge acting suspiciously and reported him to the assistant store manager. The manager alerted the asset protection specialist of the behavior, who then followed Lockridge around the store. He observed Lockridge conceal several items in an emptied bag of mulch and then place it in his shopping cart amongst other similar bags. After paying only for the bags of mulch and leaving the store with them, Lockridge was stopped in the parking lot by store employees. When he was first confronted, Lockridge attempted to reach for a knife in his pocket but two employees subdued him, handcuffed him, and brought him to the back of the store to wait for the police.

While waiting, Lockridge told the asset protection specialist “that he didn’t pay for the items that were concealed in the bag and that he was sorry.” When the police officers arrived, Lockridge spontaneously “apologized for concealing the items and taking them.” Lockridge admitted at trial that the stolen material had been in his shopping cart, but testified “I have no idea how it got in that buggy.” Lockridge also admitted that he selected the identified stolen items from around the store and placed them in another shopping cart, with the intention of purchasing them later. Lastly, the asset protection specialist testified that the total price of the goods found within the bag of mulch came to $436.80.

When reviewing the sufficiency of the evidence, we look to see if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979); Craft v. State, 324 Ga. App. 7, 8 (749 SE2d 16) (2013).

A person commits theft by shoplifting when he conceals or takes possession of the goods or merchandise of any store or retail establishment with the intent of appropriating the merchandise to his own use without paying for the same. The offense is punished as a misdemeanor if the value taken is $300 or less. The offense is a felony if the value of merchandise taken is greater than $300.

(Citation and punctuation omitted.) Lanier v. State, 269 Ga. App. 284, 287 (1) (b) (603 SE2d 772) (2004); OCGA § 16-8-14 (b) (1). It is the role of the jury, and not the appellate court, to “assess the credibility of the witnesses, to resolve any conflicting evidence, and to determine the facts” in the evidence. Parham v. State, 320 Ga. App. 676, 676 (1) (739 SE2d 135) (2013).

Based on the above facts, there was sufficient evidence for a rational trier of fact to find Lockridge guilty of felony theft by shoplifting.

2. Next, Lockridge argues ineffective assistance of counsel, alleging that his trial counsel did not conduct a meaningful investigation because he failed to obtain a surveillance video from the State. The trial counsel’s defense strategy consisted of putting Lockridge on the stand to testify that he did not steal the items, but instead selected them and put them aside, so he could return when he had enough money.

The trial counsel was aware of the surveillance video because it was included on the State’s discovery list, but testified that when he asked the State for the video, the prosecutor told him “there would not be any video. There was no video.” The trial counsel testified that he chose not to pursue the video because he believed it was not in the State’s possession.

To prevail on a claim of ineffective assistance of trial counsel [Lockridge] must show that [his] counsel’s performance was deficient and that the deficient performance so prejudiced [him] that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.

Johnson v. State, 287 Ga. 767, 769 (2) (700 SE2d 346) (2010); see Strickland v. Washington, 466 U. S. 668, 688 (III) (A) (104 SCt 2052, 80 LE2d 674) (1984). “If a defendant fails to meet [his] burden on one prong of the two-prong test, then the other prong need not be reviewed by the [c]ourt.” Powell v. State, 297 Ga. 352, 356 (5) (773 SE2d 762) (2015).

Pretermitting whether trial counsel’s failure to obtain a copy of the surveillance video was reasonable professional conduct, Lock-ridge has failed to establish that counsel’s deficiency so prejudiced his defense that a reasonable probability exists that the verdict would have been different. Johnson, 287 Ga. at 770 (2).

“We strongly presume that trial counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Citation and punctuation omitted.) Douglas v. State, 327 Ga. App. 792, 794 (2) (761 SE2d 180) (2014). In regards to pre-trial preparation, “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Id. at 795 (2) (a).

Lockridge’s wife testified that the surveillance video “just showed individuals walking down the aisles,” including Lockridge, but did not show Lockridge checking out at the cash register. The State argued during the hearing on the motion for new trial that the video was a compilation of several camera angles in various parts of the store, and without knowing what Lockridge was wearing it was hard to tell “what was going on.” A shopping cart containing items similar to those the asset protection specialist testified that Lockridge had picked out was visible as it was pushed through the garden center, but nothing else was clear until police officers escorted Lockridge through the store, the State said. The trial court reviewed the video in full, as did this court.

While Lockridge asserts that “[t]he video contradicts the testimony of the State’s witnesses” and thus there is a reasonable probability that he would have been acquitted if trial counsel had obtained the video, he cites to no particular testimony and presents no further argument on the matter. See Hampton v. State, 279 Ga. 625, 628 (5) (619 SE2d 616) (2005) (holding that the claim of ineffective assistance of counsel failed when the defendant “offer [ed] only his speculation regarding the content of such alleged potential favorable evidence”).

Furthermore we have reviewed the video and, given the content of the video, the failure of Lockridge’s trial counsel to obtain the video did not prejudice the defendant. Hudson v. State, 325 Ga. App. 810, 811-815 (1) (755 SE2d 209) (2014). Accordingly, having failed the second prong, Lockridge’s ineffective assistance of counsel argument is without merit.

3. Lastly, Lockridge also contends that the trial court erred by denying his motion for new trial based on newly discovered evidence in the surveillance video. We disagree.

When reviewing the denial of a motion for new trial based on newly discovered evidence, the trial court’s discretion will not be disturbed unless there is an abuse of that discretion. State v. Simmons, 321 Ga. App. 688, 692 (742 SE2d 505) (2013).

Our Supreme Court established that a defendant seeking a new trial on the basis of new evidence must show the trial court:

(1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness. All six requirements must be complied with to secure a new trial.

(Citation and punctuation omitted.) Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980); Simmons, 321 Ga. App. at 693. At the motion for new trial and in his brief, Lockridge failed to meet several of the requirements.

First, Lockridge failed to show that the evidence came to his knowledge since the trial. Banks v. State, 290 Ga. App. 887, 889 (3) (660 SE2d 873) (2008) (holding that a witness’s name included in the prosecution’s discovery list is not new evidence); Wheeler v. State, 290 Ga. 817, 819-820 (5) (725 SE2d 580) (2012) (holding that a defendant cannot use the same DNA evidence to present a new theory for the defense).

Decided February 9, 2016.

Clark & Towne, Jessica R. Towne, for appellant.

Daniel J. Porter, District Attorney, John A. Warr, Assistant District Attorney, for appellee.

Twice during the jury trial, Lockridge asked the trial court about the surveillance video. Lockridge told the trial court after he was sentenced that he did not understand why the video was not introduced, because “[i]f it was so damaging, they should have had it as evidence against me, but it wasn’t.” Lockridge also did not claim in his motion for the new trial or at the hearing on the motion that he was unaware of the video’s existence during the trial. Clearly, he failed to show that the evidence was newly discovered.

Furthermore, Lockridge did not offer any proof that the evidence was so material it would result in a different verdict. Simmons, 321 Ga. App. at 693. He only argued that the disjointed video would not only impeach the asset protection specialist, but would also contradict the testimony of the State’s other witnesses. However, Lockridge has failed to cite to any particular testimony contradicted by the video. This argument is not sufficient to show that the new evidence was so material it would result in a different verdict. The video does not disprove the theft established by the eyewitness accounts, and it is in fact unclear and difficult to distinguish Lockridge from other shoppers.

The trial court reviewed the surveillance video and in its discretion, denied Lockridge’s motion for new trial based on newly discovered evidence. We find no abuse of this discretion. Simmons, 321 Ga. App. at 692.

Judgment affirmed.

McMillian and Mercier, JJ., concur.

       This total included two “high-theft” rolls of electrical wire, each valued at $180, bringing the total value to over $300.

       In 2012, the General Assembly revised OCGA § 16-8-14 (b) (1) to provide that the offense was a felony if the value exceeded $500. As Lockridge’s offense took place before the revision, the State was only required to prove that the value of the stolen goods exceeded $300.

       The surveillance video consists of security footage of different areas of Home Depot on the date Lockridge was arrested for shoplifting.

       “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Citation and punctuation omitted.) Douglas v. State, 327 Ga. App. 792, 796 (2) (b) (761 SE2d 180) (2014).

       As discussed supra in Division 2.

       At the end of this enumeration of error, Lockridge also argues that the State violated the rules of discovery contained in OCGA § 17-16-4 (a) (1). However, this argument fails because the video did not contain any statement by Lockridge and the State did not intend to offer the video as evidence against Lockridge. Deal v. State, 199 Ga. App. 184, 186-187 (3) (404 SE2d 343) (1991).


author: McMillian, Judge.

text:
    A15A1773, A16A0303.
    CARTER v. VISTACARE, LLC (two cases).
    (782 SE2d 678)
   McMillian, Judge.

In Case No. A15A1773, Regina A. Carter (“Carter”), as administrator of the Estate of Mildred Irene Cantrell (“Cantrell”), appeals the trial court’s order granting judgment in favor of VistaCare, LLC, d/b/a VistaCare Hospice (‘VistaCare”) on Carter’s claims for battery and negligence arising out of VistaCare’s provision of hospice care to Cantrell. In Case No. A16A0303, Carter appeals the trial court’s order granting summary judgment on her claim of fraud against VistaCare in the same action. For the reasons set forth below, we affirm the trial court’s judgment in Case No. A15A1773, and reverse and remand in Case No. A16A0303.

Cantrell first filed a lawsuit against VistaCare on September 6, 2011 (the “2011 Complaint”), alleging claims for negligence and fraud in connection with hospice services VistaCare provided her in 2010 (the “First Litigation”). Cantrell passed away at some point during the course of that lawsuit, and Carter was substituted as the plaintiff. Later, on May 28, 2014, after jury selection began at trial, Carter voluntarily dismissed the 2011 Complaint.

Approximately six months later, on November 25, 2014, Carter filed the complaint in this case (the “2014 Complaint”), asserting claims for fraudulent inducement, battery, and negligence. The 2014 Complaint alleged that in 2009 and 2010, Cantrell’s primary treating physician wrote orders certifying her for Medicare-covered home healthcare services. However, Carter alleged that on or about February 6, 2010, VistaCare “took it upon itself” to change the doctor’s orders to home hospice services and to place Cantrell in hospice care even though she did not qualify for such services. Carter further alleged that the hospice care Cantrell received from VistaCare, including the administration of morphine, damaged Cantrell’s health, and resulted in her hospitalization.

VistaCare moved to dismiss Carter’s claims, and the trial court issued an order granting VistaCare’s motion as to both the battery and negligence claims but denying the motion as to the fraud claim (the “First Order”). VistaCare subsequently moved for summary judgment on the fraud claim, and the trial court granted the motion in its final order in the case (the “Final Order”). Carter appeals both these orders.

Case No. A15A1773

In the First Order, the trial court found that because Carter did not assert a battery claim in the 2011 Complaint, the battery claim in the 2014 Complaint was time-barred. The court also found that Carter had asserted only professional negligence claims and because she failed to file an expert affidavit with the 2014 Complaint, her negligence claim failed to comply with OCGA § 9-11-9.1.

1. Carter first argues that the trial court erred in converting VistaCare’s motion to dismiss Carter’s battery claim into a motion for summary judgment by considering matters outside the pleadings without giving Carter notice and opportunity to present any materials in opposition.

This Court has previously found that the trial court considered matters outside the pleadings, thereby converting the motion to dismiss into a motion for summary judgment, and that finding is binding in all subsequent proceedings in this case. OCGA § 9-11-60 (h) (“any ruling by... the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in... the Court of Appeals”). And Carter is correct that when a trial court considers matters outside the pleadings on a motion to dismiss, the court has the burden of informing the party opposing the motion that it will consider such matters “and that, if the opposing party so desires, the party has no less than 30 days to submit evidence in response to the motion for summary judgment.” (Citation omitted.) Brooks v. Multibank 2009-1 RES-ADC Venture, LLC, 317 Ga. App. 264, 268 (2) (730 SE2d 509) (2012). See also OCGA § 9-11-12 (a). However, “the party opposing the motion may waive the right to the 30-day notice by acquiescing in the movant’s submission of evidence in support of the motion to dismiss.” Morrell v. Wellstar Health System, Inc., 280 Ga. App. 1, 2 (1) (633 SE2d 68) (2006). Moreover, “deficient notice is not reversible [error] absent a showing of harm.” (Citation omitted.) Bynum v. Horizon Staffing, 266 Ga. App. 337, 339 (1) (596 SE2d 648) (2004).

VistaCare attached copies of the 2011 Complaint, an amended version of that complaint, and excerpts from the pre-trial hearing in the First Litigation as exhibits to its brief in support of the motion to dismiss. Carter responded to the motion approximately 30 days later and raised no objection to the trial court’s consideration of these documents. In fact, Carter relied upon the 2011 Complaint, quoting the allegations in that complaint extensively in support of her arguments opposing the motion. Therefore, “[a]ll the parties, in effect, treated the motion to dismiss as being converted to a motion for summary judgment, and no party was denied an opportunity to respond to evidence submitted.” Morrell, 280 Ga. App. at 2 (1). See also Cox Enterprises, Inc. v. Nix, 273 Ga. 152, 154 (538 SE2d 449) (2000). Thus, we find that Carter waived the requirement of formal notice from the trial court that it would consider the motion as one for summary judgment. Id.

2. Carter next argues that the trial court erred in dismissing the battery claim on the ground that it was barred under the statute of limitation. The 2014 Complaint was filed within the six-month period for a renewal of the claims asserted in the 2011 Complaint under OCGA § 9-2-60 (c), and Carter argues that the 2011 Complaint stated the elements for a battery claim, even if it did not expressly assert such a claim. Thus, Carter argues that the battery claim in the 2014 Complaint should relate back to the date of filing of the 2011 Complaint for purposes of the statute of limitation.

However, “[t]o be a good ‘renewal’ of an original suit, so as to suspend the running of the statute of limitations under OCGA § 9-2-61, the new petition must be substantially the same both as to the cause of action and as to the essential parties.” (Citation and punctuation omitted.) Safi-Rafiq v. Balasubramaniam, 298 Ga. App. 274, 275 (679 SE2d 822) (2009). Therefore, “[a] defendant’s liability cannot be enlarged beyond that indicated by the pleadings in the first case.” (Citation omitted.) Blier v. Greene, 263 Ga. App. 35, 38 (1) (a) (587 SE2d 190) (2003). Although the 2011 Complaint contains similar factual allegations to those raised in the 2014 Complaint, it is undisputed that the 2011 Complaint did not assert a cause of action for battery. Thus, we agree with the trial court that the battery claim in the 2014 Complaint asserts a new cause of action and does not relate back to the date of filing of the 2011 Complaint for purposes of the statute of limitation.

Moreover, in addition to considering the allegations of the 2011 Complaint, the trial court took judicial notice of the pre-trial order from the First Litigation. In granting summary judgment on the battery claim, the trial court found that “[r]egardless of how [Carter] opts to re-cast the claims asserted in [the First Litigation], nothing in the pleadings, or more importantly the [Consolidated] Pre-Trial Order, remotely suggest[s] that [Carter] sought to assert a battery claim” in that litigation.

Where a trial court takes judicial notice of the record of the first-filed action in considering the propriety of a renewal action, “the record or portion thereof considered by the trial court should be designated to be included in the appeal if a party wishes to enumerate error on the ruling.” See Petkas v. Grizzard, 252 Ga. 104, 108 (312 SE2d 107) (1984); Belcher v. Folsom, 258 Ga. App. 191, 192 (573 SE2d 447) (2002). In that manner, “[a]ny party may contest or argue the effect the prior record has on the case or issue being litigated and may cite to portions of the record which have been recognized or incorporated by the court.” Petkas, 252 Ga. at 108. Carter, as the appellant, had the burden of designating the appropriate portions of the record from the First Litigation for inclusion on appeal. Id. However, Carter failed to make such a designation and thus we do not have a copy of the pre-trial order cited by the trial court in support of its ruling. “It is well established that the burden is on the party alleging error to show it by the record and that where the proof necessary for determination of the issues on appeal is omitted from the record, an appellate court must assume that the judgment below was correct and affirm.” (Citation and punctuation omitted.) Hooks v. Humphries, 303 Ga. App. 264, 268 (3) (692 SE2d 845) (2010). Accordingly, we affirm the trial court’s grant of summary judgment on the battery claim.

3. Carter also asserts that the trial court erred in dismissing her negligence claim for failure to file an expert affidavit in accordance withOCGA § 9-11-9.1 because the trial court misconstrued the nature of the negligence claim asserted in the 2014 Complaint. We disagree.

Carter based her negligence claim on the factual allegations that VistaCare failed to follow Cantrell’s doctor’s orders for home healthcare and instead placed her in hospice care, where the treatment she received, including the administration of morphine, undermined her health. In pertinent part, the 2014 Complaint, alleges:

— On or about May 25, 2010, [Carter] noticed that [Cantrell’s] condition had worsened] and, after being told by Kathy, one of [VistaCare’s] nurses, that [Cantrell] was dying, [Carter] called 911 and had [Cantrell] rushed to Henry General Hospital Emergency Room, where it was determined that [Cantrell] was overdosed on Morphine and near death.
— The actions of [VistaCare] as described hereinabove constitute negligence in that VistaCare owed a duty to [Cantrell] to carry out the home healthcare services as ordered by [Cantrell’s doctor].
— VistaCare breached that duty by ignoring [the doctor’s] order for home healthcare and instituting its own order for hospice, and never getting approval of any hospice plan by [the doctor].
— [Cantrell] suffered pain and suffering, sustained loss of health, almost lost her life, and was damaged as a result thereof, as the proximate result of said breach.

The trial court determined that these allegations asserted a claim of professional negligence and not simple negligence because Carter “alleges that Ms. Cantrell was injured as a result of the medication administered by healthcare professionals employed by [VistaCare] after Ms. Cantrell was fraudulently transferred to hospice care.”

OCGA § 9-11-9.1 (a) provides:

In any action for damages alleging professional malpractice . . . the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.

Therefore, “OCGA § 9-11-9.1 requires a plaintiff to attach to the complaint an expert’s affidavit supporting his malpractice claim, but the requirement of attaching a medical affidavit to the complaint does not apply to claims of ordinary negligence.” (Citation omitted.) Ambrose v. Saint Joseph’s Hosp. of Atlanta, Inc., 325 Ga. App. 557, 558 (1) (754 SE2d 135) (2014).

Although complaints against professionals may state claims based on ordinary as well as professional negligence, where the allegations of negligence against a professional involve the exercise of professional skill and judgment within the professional’s area of expertise, the action states professional negligence.

(Citation and punctuation omitted.) Pattman v. Mann, 307 Ga. App. 413, 415 (701 SE2d232) (2010). However, “[ajdministrative, clerical, or routine acts demanding no special expertise fall in the realm of simple negligence.” (Citation omitted.) Ambrose, 325 Ga. App. at 559 (1). “Whether a complaint alleges ordinary negligence or professional malpractice is a question of law for the court.” Crisp Regional Nursing & Rehabilitation Center v. Johnson, 258 Ga. App. 540, 542 (2) (574 SE2d 650) (2002).

Carter framed her negligence claim in terms of VistaCare employees’ failure to follow the orders of Cantrell’s doctor to enroll her in home health services, not hospice care. This Court has previously found that “claims that employees failed to carry out instructions and that hospitals failed to have appropriate equipment alleged ordinary negligence.” (Citations omitted.) Ambrose, 325 Ga. App. at 559 (1). Nevertheless, “if a claim of negligence goes to the propriety of a professional decision rather than to the efficacy of conduct in the carrying out of a decision previously made, the claim sounds in professional malpractice.” (Citations omitted.) Id. See also Pattman, 307 Ga. App. at 416; Wellstar Health System, Inc. v. Painter, 288 Ga. App. 659, 662 (655 SE2d 251) (2007).

For example, in Painter, the plaintiff alleged that a nurse failed to follow his doctor’s orders by forcing him to take three large cups of pills, over his protests that the nurse contact his doctor. As a result, he alleged that he became woozy and went into cardiac arrest. Painter, 288 Ga. App. at 661. This Court found that although the nurse failed to follow the doctor’s orders as to the plaintiff’s medication, the underlying issue in that case involved “a medical judgment made by a nurse acting in her capacity as a nurse. She was not simply effecting a judgment previously made by another, she was exercising an independent medical judgment that required her to evaluate whether [the plaintiff’s] medications were correct.” (Footnote omitted.) Id. at 662. Therefore, we concluded that the issues involved were “not questions of ordinary negligence, they [were] questions concerning whether the nurse deviated from the standard of care required of nurses, the resolution of which requires expert testimony and which thus requires the plaintiff to attach an expert affidavit to the complaint.” Id. at 662-63.

Similarly, in Pattman, the plaintiff asserted that a lab technologist was negligent in failing to notify the intensive care unit when plasma arrived for a physician-ordered blood transfusion for her husband. We found that “[t]he allegation of negligence here was not that a simple phone call was not made, but that the red blood cells and other treatments were not administered to Mr. Pattman as quickly as they should or could have been, and that this failure to act timely caused Mr. Pattman’s death.” Pattman, 307 Ga. App. at 416. Accordingly, we concluded that whether the treatment ordered by the doctor was carried out in a timely fashion, “particularly given that Mr. Pattman’s blood contained rare antibodies, is a question of medical judgment and the duties involved in the administration of medications and treatments constitute a professional service.” Id. Thus, even though “[the lab technologist’s] negligence in failing to call the ICU was not an issue involving expert medical testimony, the proximate cause of the damages sought by Pattman does present a medical question controlled by expert medical testimony.” (Citation and punctuation omitted.) Id. at 418. Accordingly, we found that Pattman was required to file an expert affidavit pursuant to OCGA § 9-11-9.1.

Here, even assuming that the act of allegedly failing to follow Cantrell’s doctor’s orders by placing Cantrell in hospice care could be construed as ordinary negligence, no damage resulted from the mere placement of Cantrell into the hospice service. Rather, the damages alleged involve injuries to Cantrell’s health resulting from the medical treatment she received while in hospice care. Thus, Carter’s claims assert issues involving medical judgment and the professional duties involved in providing such care to Cantrell, including the propriety of administering morphine to her. Accordingly, we agree with the trial court that Carter was required to file an expert affidavit along with her complaint, and her failure to do so bars her claim for negligence. See Painter, 288 Ga. App. at 663; Pattman, 307 Ga. App. at 418.

Case No. A16A0303

4. In this appeal, Carter asserts that the trial court erred in granting summary judgment on her fraud claim.

In granting summary judgment, the trial court found that Carter “arguably presented evidence that [VistaCare] knowingly made a material misrepresentation, which was justifiably relied upon by [Cantrell], with the intent to deceive,” as well as evidence that the court described as “at best questionable” suggesting that damages may have resulted. However, the trial court found Carter’s failure to timely respond to VistaCare’s request for admissions resulted in admissions that conclusively established that VistaCare was entitled to summary judgment on the fraud claim.

VistaCare served its requests for admission on February 4,2015, and Carter’s response to the requests was due no later than March 9, 2015. See OCGA §§ 9-11-6 (e); 9-11-36 (a) (2). However, Carter didnot respond to the requests until May 26,2015, well outside the statutory time for response. As a result, the requests were deemed admitted. OCGA § 9-11-36 (a) (2). Carter filed a motion seeking withdrawal of the admissions, but the trial court denied the motion.

(a) Carter first argues that the trial court erred in failing to grant her motion to withdraw the admissions. We review the trial court’s ruling on this issue for an abuse of discretion. Parham v. Weldon, 333 Ga. App. 744, 746 (1) (776 SE2d 826) (2015).

As provided in OCGA § 9-11-36 (b),

[a] trial court may permit withdrawal of admissions if both: (1) the presentation of the merits of the action will be subserved by the withdrawal; and (2) the party who obtained the admission fails to satisfy the court that withdrawal will prejudice him in maintaining his action or defense on the merits.

Parham, 333 Ga. App. at 746 (1). Therefore, Carter had the burden of demonstrating that the merits of the action will be subserved by withdrawal, but VistaCare had the burden of showing that withdrawal would prejudice its defense. Turner v. Mize, 280 Ga. App. 256, 257 (1) (633 SE2d 641) (2006).

In order to carry her burden, Carter needed to show

the admitted requests either could have been refuted on trial of the issues by admissible evidence having a modicum of credibility or that the admitted requests were incredible on their face; and that the denials being tendered to the court with the motion to withdraw had not been offered solely for purposes of delay.

Parham, 333 Ga. App. at 746 (1). This burden “is not perfunctorily satisfied,” Turner, 280 Ga. App. at 257 (1), and the “[f]ailure to present admissible, credible evidence contradicting the admitted matters justifies the denial of the motion to withdraw.” (Citation omitted.) Brooks, 317 Ga. App. at 267 (1). Moreover, “[i]f the movant fails to make the required showing to satisfy the first prong of the test, then the trial court is authorized to deny the motion to withdraw the admissions,” and “there is no need to address the second prong.” (Citation and punctuation omitted.) Neal v. State Farm Fire & Cas. Co., 300 Ga. App. 68, 70 (684 SE2d 132) (2009).

In her motion to withdraw, Carter argued that her notice of appeal in Case No. A15A1773 imposed a supersedeas, suspending all discovery in the case. Carter also identified the requests she would have denied and those she would have admitted. She further asserted, without elaboration, that the evidence supporting her denial of the enumerated admissions “is contained in [her] verified Complaint, the exhibits attached to [the] Complaint, records obtained from Defendant, and Plaintiff’s medical records.” The trial court rejected Carter’s argument regarding supersedeas but failed to address the issue of whether Carter met her burden under the first prong of the test set out in OCGA § 9-11-36 (b).

Moreover, the trial court erroneously placed the burden of showing a lack of prejudice to VistaCare on Carter, rather than properly placing the burden on VistaCare to show prejudice. The trial court found that Carter had “failed to adequately address, let alone establish, that [VistaCare] would not be prejudiced by the sought-after relief.”

Decided February 9, 2016

Mack & Harris, Robert L. Mack, Jr., for appellant.

Hawkins Parnell Thackston & Young, David C. Marshall, Debra E. LeVorse, Mary Claire Smith, for appellee.

The trial court also found that Carter had failed “to proffer any legitimate reason for the failure to respond to the discovery requests.” However, “[o]ur Supreme Court has held that a party seeking withdrawal of an admission need not show ‘providential cause’ or ‘excusable neglect’ for failing to answer the requests for admission.” (Citations omitted.) Sayers v. Artistic Kitchen Design LLC, 280 Ga. App. 223, 226 (2) (633 SE2d 619) (2006). See also Whitemarsh Contractors v. Wells, 249 Ga. 194, 195 (288 SE2d 198) (1982); Cielock v. Munn, 244 Ga. 810, 811 (262 SE2d 114) (1979). Rather, the two-prong test under OCGA § 9-11-36 (b) must be applied in determining the propriety of the motion to withdraw. Id.

Accordingly, we find that the trial court’s application of an erroneous legal standard constituted an abuse of discretion. See Sayers, 280 Ga. App. at 227 (2). Therefore, we reverse the denial of the motion to withdraw and remand the case for the trial court to consider the motion under the appropriate standard.

(b) Similarly, because the trial court relied upon the admissions in granting summary judgment on the fraud claim, we also reverse the Final Order and remand for further proceedings following the trial court’s ruling on the motion to withdraw under the proper standard.

Judgment affirmed in Case No. A15A1773. Judgment reversed and case remanded in Case No. Al 6A0303.

Barnes, P. J., and Ray, J., concur.

       The original suit was filed against Odyssey VistaCare Hospice Foundation, Inc., d/b/a VistaCare of Griffin. The complaint was later amended to change defendant’s name to VistaCare, LLC, d/b/a VistaCare Hospice.

       VistaCare filed a separate motion to dismiss based on the failure to diligently achieve service, but the trial court denied that motion. VistaCare does not appeal that ruling and thus we do not address it in this appeal.

       We initially dismissed Carter’s appeal in this case on the ground that the First Order, which granted in part and denied in part VistaCare’s motion, was not a final order and found that Carter should have followed the interlocutory appeal procedures set forth in OCGA § 5-6-34 (b). However, Carter moved for reconsideration, contending that the trial court converted VistaCare’s motion to dismiss into a motion for summary judgment when it considered matters outside of the pleadings. Carter asserted that the First Order was therefore directly appealable under OCGA § 9-11-56 (h), which provides that “[a]n order granting summary judgment on any issue or as to any party shall be subject to review by appeal.” Finding Carter’s argument persuasive, we vacated the order of dismissal and reinstated the appeal.

       Therefore, we will review both the First Order and the Final Order under the de novo standard of review applicable to orders on summary judgment, construing the evidence in a light most favorable to Carter, as the nonmovant. See Kelley v. Randolph, 295 Ga. 721, 722 (1) (763 SE2d 858) (2014).

       Moreover, we note that the trial court was entitled to take judicial notice of the record from the First Litigation in addressing the issue of whether the battery claim was part of that litigation, which was filed in the same court and heard before the same judge as the present case. See Petkas v. Grizzard, 252 Ga. 104, 108 (312 SE2d 107) (1984); Belcher v. Folsom, 258 Ga. App. 191, 192 (573 SE2d 447) (2002).

       OCGA § 9-2-60 (c) provides: “When an action is dismissed under this Code section, if the plaintiff recommences the action within six months following the dismissal then the renewed action shall stand upon the same footing, as to limitation, with the original action.”

       We note that the trial court considered only the allegations of the 2014 Complaint in determining whether Carter should have filed an expert affidavit in support of her negligence claim.

       However, “the appellate courts have held that it is unnecessary to file an expert affidavit with a complaint filed against a professional if the complaint alleges the commission of an injurious intentional act by the professional during the existence of a professional relationship between the plaintiff and defendant.” (Citations omitted; emphasis in original.) Labovitz v. Hopkinson, 271 Ga. 330, 334 (3) (519 SE2d 672) (1999). Therefore, no expert affidavit was required in connection with Carter’s fraud claim. See Estate of Shannon v. Ahmed, 304 Ga. App. 380, 384 (1) (696 SE2d 408) (2010).

       Thus, “we owe no deference to the trial court’s ruling and apply a de novo standard of review.” Artson, LLC v. Hudson, 322 Ga. App. 859, 860 (747 SE2d 68) (2013).

       OCGA § 9-11-36 (a) (2) provides, in pertinent part that the matter addressed in a request “is admitted unless, within 30 days after service of the request or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney.”

       Although Carter also submitted a response to the Request for Admissions, she used the same language to identify the evidence supporting each denial of an admission, without further particularization.


author: ANDREWS, Presiding Judge.

text:
    A15A1836.
    SIMS v. THE STATE.
    (782 SE2d 687)
   ANDREWS, Presiding Judge.

Benjamin Sims appeals from the trial court’s denial of his pre-trial motion to suppress evidence supporting the State’s accusation charging him with misdemeanor possession of marijuana and misdemeanor obstruction of law enforcement officers. For the following reasons, we affirm the denial of the motion.

Sims claims that, in violation of the Fourth Amendment to the United States Constitution, police officers: (a) illegally stopped and detained him for questioning without reasonable suspicion of criminal activity; (b) illegally arrested him for obstruction when he walked away from and resisted the unlawful detention; and (c) found marijuana on his person during an illegal search incident to the unlawful arrest. In its order denying the motion to suppress, the trial court found that the officers lawfully attempted to detain Sims for questioning based on reasonable suspicion, and lawfully arrested him for obstruction when he resisted the detention. The sworn evidence at the motion hearing supports the trial court’s order.

The State introduced the following testimony at the hearing on the motion: Officer Cook, who was employed as a police officer with the Athens-Clarke County Police Department, testified that he also worked off-duty providing security for the University Oaks Apartments. The Apartments were located in a high-crime area plagued by burglaries, robberies, and illegal drug sales, and the Apartments hired Cook and other police officers to provide off-duty security against these criminal activities. The off-duty officers worked for the Apartments in full police uniform and used their police patrol vehicles. The Apartments specifically asked the off-duty officers to look for nonresidents on the Apartments property engaging in criminal activity. Cook first encountered Sims on the Apartments property a few days prior to the present incident. While providing off-duty security, Cook investigated the smell of burning marijuana coming from one of the apartments. After the apartment resident admitted that marijuana was being smoked inside the apartment, Cook elected not to make arrests, but warned the resident and the other individuals in the apartment (including Sims who did not live there) that smoking marijuana was an illegal activity not allowed on the property. A few days later, while Cook was again providing off-duty security for the Apartments property, he repeatedly saw Sims and another person he did not recognize coming out from behind different buildings on the Apartments property over a period of time. At that point Cook knew that Sims was not a resident of the Apartments; could not confirm that the other person was a resident; knew that Sims had recently been using marijuana on the property; knew of the problem with nonresidents coming on the property to engage in criminal activity; and knew of recent burglaries and recent narcotics sales on the property. Given these facts, along with the unusual movement by Sims and the other person from behind building to building on the property, Cook suspected that Sims and the other person may be nonresidents engaged in criminal activity on the property. To investigate this suspicion, Cook drove up to Sims and the other person in his patrol vehicle. Without exiting the vehicle, Cook rolled down the window, said to Sims, “I know you’re not a resident,” and asked the other person, “[D]o you live here, sir?” In response to this question, Sims told the other person not to answer, cursed at the officer, and both men walked away. Cook parked his patrol car, got out, followed behind the two men as they walked away, identified himself as a police officer hired by the Apartments, and attempted to stop the men. But the men refused to stop, continued to curse at the officer, and continued to walk away. At that point, Cook called for backup, and a second police officer arrived, Officer Herring, who was patrolling on-duty in the area. When Herring arrived, he saw the two men walking away from Cook. Cook explained his suspicion to Herring and asked Herring to “see if you can talk some sense into them.” Herring walked ahead of the two men and tried to get them to stop and answer questions about what they were doing at the Apartments property, but neither man would stop or answer questions. The men continued to walk away and act in a belligerent fashion toward the officers. Herring eventually said he “pretty much had enough,” reached for his handcuffs, and moved toward Sims. Sims said “You’re not going to put those on me,” and either ran or walked away at a fast pace to avoid the officer. At that point, Herring caught and handcuffed Sims, who continued to physically resist the officers.

Sims claims that he lawfully exercised his right as a citizen to simply walk away from the officers because they had no basis under the Fourth Amendment to stop and question him to investigate any suspicion of criminal activity, and no basis to arrest him when he refused to stop and answer their questions.

[E]ncounters between police officers and citizens come in three varieties, at least as far as the Fourth Amendment is concerned: [tier one] encounters involving no coercion or detention, which are outside the purview of the Fourth Amendment altogether; [tier two] brief seizures, which require an officer to have a reasonable suspicion of criminal wrongdoing; and [tier three] custodial arrests, which require probable cause.

Culpepper v. State, 312 Ga. App. 115, 118 (717 SE2d 698) (2011) (citation and punctuation omitted). In a tier one encounter involving no coercion or detention, “police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave.” Id. (citation and punctuation omitted). The touchstone of this kind of encounter is the right of the citizen not to answer the officer’s questions and to walk or even run away. Ewumi v. State, 315 Ga. App. 656, 658 (727 SE2d 257) (2012). We agree with the trial court that the facts show this was not a tier one police-citizen encounter, and that Sims was not entitled to resist and walk away. Rather, this was an attempted tier two encounter in which the police officers tried to stop and detain Sims based on reasonable suspicion of criminal wrongdoing.

The Fourth Amendment allows a police officer to stop persons ... to investigate the officer’s reasonable suspicion “that the person stopped is, or is about to be, engaged in criminal activity.” United States v. Cortez, 449 U. S. 411, 417 (101 SC[t] 690, 66 LE2d 621) (1981); Terry v. Ohio, 392 U. S. 1, 9 (88 SC[t] 1868, 20 LE2d 889) (1968); Vansant v. State, 264 Ga. 319, 320 (443 SE2d 474) (1994). To establish the necessary reasonable suspicion to make an investigative stop, the totality of the circumstances must show that the officer had “specific and articulable facts which, taken together with rational inferences from those facts, . . . [provided] a particularized and objective basis for suspecting the particular person stopped of criminal activity.” (Punctuation omitted.) Vansant, supra at 320. Although an investigative stop cannot be based on an officer’s mere hunch that criminal activity is afoot, “[t]his process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” (Citations and punctuation omitted.) United States v. Arvizu, 534 U. S. 266, 273 (122 SC[t] 744, 151 LE2d 740) (2002). In considering the totality of the circumstances in each case, a court must avoid evaluating the facts in isolation. Even where each in a series of acts may be susceptible to an innocent explanation, taken together they may collectively amount to reasonable suspicion justifying an officer’s investigative stop. Id. at 274-275. Moreover, “[a] determination that reasonable suspicion exists . . . need not rule out the possibility of innocent conduct.” Id. at 277.

Rolfe v. State, 278 Ga. App. 605, 606-607 (630 SE2d 438) (2006).

Applying these standards, we find under the totality of the circumstances that Cook and Herring had a reasonable suspicion that Sims was, or was about to be, engaged in criminal activity on the Apartments property. Cook saw Sims, who he knew was not a resident, and another person he could not identify as a resident, moving about in unusual ways behind various buildings on the Apartments property. Although it was certainly possible that the two men were engaged in innocent conduct, the officer also knew of Sims’s recent involvement with marijuana on the Apartments property, knew of continuing problems with nonresidents engaged in criminal activity on the property, and knew of recent burglaries and illegal drug sales on the property. All of this knowledge, along with the officer’s observations, supported reasonable inferences that led him to suspect that Sims and the person with him were engaged in criminal activity on the property. Moreover, when Cook approached Sims and the other person and attempted to determine if the other person was a resident of the Apartments property, Sims told the other person not to answer the officer. This conduct was additional suspicious behavior. Taken together, the circumstances were sufficient to give the officers a particularized and objective basis for reasonable suspicion to stop Sims and the other person to investigate.

Accordingly, the facts show that Cook and Herring had lawful authority under the Fourth Amendment to detain and question Sims in a tier two encounter, and that the officers attempted repeatedly to exercise that authority. Because the facts show that Sims refused to submit to the assertion of that authority, Sims was not seized in a tier two encounter. State v. Walker, 295 Ga. 888, 890-895 (764 SE2d 804) (2014). Rather, Sims’s continued resistance to the officers’ lawful authority to conduct a tier two encounter provided the officers with probable cause to arrest Sims for obstruction. McClary v. State, 292 Ga. App. 184, 187 (663 SE2d 809) (2008); Spence v. State, 295 Ga. App. 583, 586 (672 SE2d 538) (2009); State v. Quarterman, 333 Ga. App. 803 (777 SE2d 485) (2015). It follows that the trial court did not err in denying Sims’s motion to suppress.

Judgment affirmed.

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

Decided February 9, 2016.

Edward H. Brumby, Jr., for appellant.

Carroll R. Chisholm, Jr., Solicitor-General, for appellee.

       We granted Sims’s application for an interlocutory appeal.

       Even though Cook was providing off-duty security for the Apartments during the events at issue, he was still at all times acting in the discharge of his official duties as a police officer. “[A]ll law enforcement officers have the general duty to enforce the law and maintain the peace. They carry this duty twenty-four hours a day, on and off duty.” Stryker v. State, 297 Ga. App. 493, 494 (677 SE2d 680) (2009) (citation and punctuation omitted).


author: Ray, Judge.

text:
    A15A1966.
    JACKSON v. THE STATE.
    (782 SE2d 691)
   Ray, Judge.

Kerry Montel Jackson was charged with one count of trafficking in marijuana in violation of the Georgia Controlled Substances Act. Following a bench trial, he was found guilty and sentenced to 25 years, with the first 12 to be served in confinement. Prior to trial, Jackson filed a motion to suppress, which was denied. Jackson now appeals the denial of his motion for new trial, arguing that the traffic stop which uncovered the marijuana was unduly prolonged and, as such, that the search was unlawful. Finding no error, we affirm.

“On appeal from a denial of a motion to suppress, this Court must construe the evidence most favorably to uphold the ruling of the trial court. The trial court’s application of law to facts which are undisputed is subject to de novo review.” (Punctuation and footnote omitted.) Matthews v. State, 330 Ga. App. 53, 53 (766 SE2d 515) (2014). “[W]hen a motion to suppress is heard by the trial judge, that judge sits as the trier of facts.... [T]he trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous.” (Citation omitted.) Perez v. State, 249 Ga. App. 399, 399-400 (547 SE2d 699) (2001).

So viewed, the record shows that Jackson was stopped by Deputy Whitehead for a routine traffic stop the morning of October 4, 2012. Jackson’s vehicle drifted across the fog line on an exit ramp from 1-20, in violation of OCGA § 40-6-48. Due to the congested nature of the area, Deputy Whitehead followed Jackson without activating his lights while he waited for dispatch to run the vehicle’s license plate. Deputy Whitehead activated his lights at 7:59 a.m. upon arriving in a location where the stop would be less disruptive to the local community.

After informing Jackson of the reason for the stop, Deputy Whitehead returned to his patrol car to run Jackson’s license and criminal history. Deputy Whitehead made the decision to issue a warning after Jackson’s license came back valid, and at 8:06 a.m., he returned to Jackson’s vehicle to begin the process of writing out the warning, even though the criminal history had not yet returned.

During the traffic stop, Deputy Whitehead and Jackson engaged in a conversation. Jackson stated that he exited the highway to get gas, that he had half a tank of gas, and that he was on his way back to Alabama. When asked why he was not waiting until Alabama to get the gas since it would be cheaper in Alabama, Jackson indicated it was because he had a debit card. Also, he had already passed the only gas station at the exit when he was stopped and was making no effort to turn around. To explain why he was so far away from home, Jackson initially told Deputy Whitehead that he was in Georgia to attend a car auction, but that he had to go back to Alabama to pick up drivers for the cars. Eventually, his story changed to being in Georgia overnight because he had spent the night with “a girl” and was heading back to Alabama to get home to his “old lady.” When asked about where the girl lived and where he had spent the night, Jackson was unable to provide any details.

Jackson’s criminal history came back at 8:12 a.m., at which time the deputy had yet to finish writing the warning. Jackson’s criminal history indicated that he was previously charged with drug trafficking. Deputy Whitehead then asked Jackson whether he had ever been arrested, to which Jackson initially responded negatively. When pressed, Jackson admitted to having been arrested when he was “younger” for “drinking,” but he denied any other arrests.

Officer Williams, a member of the City of Douglasville Police Department Canine Unit, was on his way to work when he saw Deputy Whitehead engaged in the traffic stop. As a courtesy in the event Deputy Whitehead needed assistance, Officer Williams pulled over and parked across the street from Deputy Whitehead. Officer Williams had with him his trained drug detection dog.

After Jackson lied about his criminal history, Deputy Whitehead asked Jackson for consent to search the vehicle. Jackson denied consent. Thus, at Deputy Whitehead’s request, Officer Williams began walking his drug dog around Jackson’s vehicle, and it alerted to the presence of narcotics. Jackson’s vehicle was subsequently searched, and approximately 20.9 pounds of marijuana was found in the trunk of the vehicle.

In his sole enumeration of error, Jackson maintains that the trial court erred in denying his motion to suppress because the traffic stop allegedly was unduly prolonged; he contends that the stop was completed when Deputy Whitehead informed him that his license had come back valid and that the deputy was just going to issue a warning. Jackson cites for this proposition to the Supreme Court’s recent decision in Rodriguez v. United States, _ U. S. _ (135 SCt 1609, 191 LE2d 492) (2015) (“a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures [;] it becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation”) (punctuation omitted). .

The trial court found that the search was constitutionally permissible for two reasons. First, it found that “Deputy Whitehead’s questioning of [Jackson] prolonged the stop[,] but did not do so unreasonably.” Additionally, it concluded that “[Jackson]’s answers to [Deputy Whitehead’s] questions provided immediate reasonable suspicion to detain [Jackson] further.” In essence, the trial court concluded that Jackson’s inconsistent answers as to why he was in Georgia and where he had been, that he was searching for gas when he did not need any gas and given that gas was cheaper in Alabama where he was headed, as well as his lies about his criminal background, provided reasonable suspicion so as to elevate Jackson’s detention to a second tier encounter.

Contrary to Jackson’s assertion, the traffic stop’s mission did not conclude at the time Deputy Whitehead informed Jackson that he was merely going to issue a warning. In State v. Allen, 298 Ga. 1, 13 (779 SE2d 248) (2015), our Supreme Court found that a traffic stop was not unduly prolonged where an officer had his dog conduct a free air sniff of a vehicle while waiting for the completion of the records check on a passenger in the vehicle. “[W]hen an officer lawfully stops and detains an individual for a brief investigation . . . the officer is entitled to take reasonable steps to make the scene safe for his investigation.” (Citation omitted.) Rodriguez v. State, 295 Ga. 362, 372 (2) (b) (761 SE2d 19) (2014). These steps generally include checking for outstanding warrants and the criminal history of the occupants of the stopped vehicle, as this enhances officer safety, and until these checks are completed, there can be no undue prolongation of the traffic stop. Id. Thus, at the minimum, the relevant time at issue is not when Deputy Whitehead informed Jackson that he was going to issue a warning, but rather was when Jackson’s criminal history check returned. While Deputy Whitehead informed Jackson that he was going to write a warning at 8:06 a.m., Jackson’s criminal history check was not completed until 8:12 a.m.

Decided February 9, 2016.

Lawrence W. Daniel, for appellant.

Brian K. Fortner, District Attorney, David H. Emadi, Emily K. Richardson, Assistant District Attorneys, for appellee.

The trial court found that “ [Jackson]’s answers to [Deputy Whitehead’s] questions provided immediate reasonable suspicion to detain him further.” The trial court further found that “in the context of the officer’s experience and the nature of the surrounding area[,] that [Jackson] was behaving suspiciously.”

We believe that, at the very least, Jackson’s inconsistent answers as to why he was in Georgia, his inability to recall the location where he had been, his statement that he was exiting the interstate to get gas despite that he had plenty of gas and that gas was cheaper in his home state of Alabama, and the fact that he had passed the only gas station at the exit when he was stopped, considered in totality, provided reasonable articulable suspicion sufficient to allow Deputy Whitehead to broaden his investigation beyond a simple traffic offense. See Rocha v. State, 317 Ga. App. 863, 867 (1) (733 SE2d 38) (2012); Matthews v. State, 294 Ga. App. 836, 839 (1) (b) (670 SE2d 520) (2008). This was enhanced when the criminal background check revealed Jackson’s previous drug trafficking charge, and, even further, when he lied about his criminal record. See Sherod v. State, 334 Ga. App. 314 (779 SE2d 94) (2015). Thus, we believe that Jackson’s continued detention to allow the drug dog to do a “free air” sniff around his automobile passes constitutional muster. Accordingly, we therefore affirm the trial court’s denial of the motion to suppress.

Judgment affirmed.

Barnes, P. J., and Rickman, J., concur.

       Deputy Whitehead testified at the hearing he was informed of Jackson’s criminal background hy another officer who was at the scene, but that officer did not testify. The trial court merely describes him as “another officer.”

       J ackson does not challenge the lawfulness of the initial traffic stop for failure to maintain lane.

       We recognize, of course, that the overall duration of the traffic stop must be reasonable in light of the circumstances. Allen, supra at 15. However, no argument was pursued in this appeal that the overall length of the traffic stop was unreasonable, and, upon review of the facts, we do not believe that the duration of the stop was excessive.

       Additionally, a traffic stop does not conclude until the officer completes any “paperwork connected with the citation or a written warning.” (Citation omitted.) Rogers v. State, 323 Ga. App. 647, 649 (747 SE2d 213) (2013).

       Although there is nothing in the record to explain what the trial court meant by relying on the nature of the surrounding area, ‘local factors within the knowledge of the trial court may influence a decision about the reasonableness of the stop.” Hayes v. State, 292 Ga. App. 724, 730 (665 SE2d 422) (2008). Thus, we will defer to the trial court’s reasoning, even though we cannot directly see into its analysis.