text:
    A11A0279.
    HENDERSON PROPERTY HOLDINGS, LLC et al. v. SEA ISLAND BANK.
    (714 SE2d 382)
   Doyle, Judge.

This case arises from an application for confirmation of a foreclosure sale filed pursuant to OCGA § 44-14-161 by Sea Island Bank against Henderson Property Holdings, LLC, Edwin J. Feiler, Jr., and Andrew B. Feiler (collectively “Henderson Property Holdings”). Henderson Property Holdings appeals the trial court’s final order confirming the sale of three adjacent parcels of commercial property in the amounts of $1,030,000, $1,090,000, and $1,680,000. Finding no error, we affirm.

Value on the date of sale is a factual question to be resolved by the trier of fact. In a proceeding for confirmation of a foreclosure sale of real property, the judge sits as a trier of fact, and his findings and conclusions have the effect of a jury verdict. Where the trial judge, sitting as the trier of the facts, hears the evidence, his finding based upon conflicting evidence is analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it.

So viewed, the record reveals that Sea Island Bank hired Timothy C. Wilson to appraise the property in July 2009 and January 2010 for the foreclosure sale. His July 2009 appraisals, which were based on “what [he] thought would have been a typical reasonable marketing time” of 24 to 36 months, amounted to $1,800,000, $1,850,000, and $2,850,000.

In January 2010, Sea Island Bank instructed Wilson to update his July 2009 appraisals and reevaluate the parcels assuming a reasonable marketing period of 12 months, as well as an appraisal “based on what [he] thought was the typical marketing ... an estimate of [24] to [36] months.” Wilson stated that the 12-month time period was “what most sellers [were] requiring.” Using the 24-to 36-month marketing periods, he appraised the properties to be valued at $1,590,000, $1,685,000, and $2,550,000. Using the 12-month marketing period provided by Sea Island Bank, Wilson appraised the properties at $1,030,000, $1,090,000, and $1,680,000.

The numbers from the 12-month marketing period and 24- to 36-month marketing periods, however, represented the same return. Wilson relied upon comparable sales to arrive at the fair market value. Wilson took the independent analysis based upon the 24- to 36-month periods and applied discounts arising from a hypothetical purchaser’s “reasonable expectation of certain costs [and] taxes” to account for time and marketability These downward adjustments reflected eighteen months of carrying costs, including a fifteen percent deduction for developer/entrepreneurial profit, real estate taxes, and sales fees; one percent deduction for “miscellaneous”; and a discount rate of ten percent, which accounted for opportunity costs of the owner.

John Ganem appraised the property on behalf of Henderson Property Holdings in March 2010. Ganem testified that the fair market values of the parcels were $1,474,000, $1,656,000, and $2,325,000. He also determined that the three parcels as a single tract of land had a fair market value of $6,200,000.

After the hearing, the trial court entered an order confirming the foreclosure sales. In its order, the trial court determined that the properties sold for their true market values by adopting Wilson’s appraisal. The court found the 12-month holding time reasonable in light of testimony that the carrying costs of the property exceeded $700,000. The trial court also took note of evidence of Sea Island Bank’s subsequent sale of the property 28 days after the foreclosure sale and evidence that Henderson Property Holdings could not sell the property in late 2009 for $3,400,000 when given the opportunity by Sea Island Bank.

1. Henderson Property Holdings argues that the trial court erred in adopting “quick sale” values as evidence of “true market value.” We disagree.

Georgia’s confirmation statute provides that “[t]he court shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.”

True market value is the price that the property will bring when it is offered for sale by one who is not obligated, but has the desire to sell it, and is bought by one who wishes to buy it, but is not under a necessity to do so.

Courts may not use “quick sale” valuation in confirmation proceedings “because it presumes that ‘true market value’ may be construed to mean ‘market value under quick sale conditions.’ ” In the instant case, however, the value of the foreclosure sales reflects the price that would be obtained in a sale under usual market conditions. Wilson testified that the marketing time frame he relies upon varies depending on market conditions. For example, the time frame “could have been under [12] months” at the height of the market. Although Wilson stated that his typical marketing period is 24 to 36 months, he explained that almost no one in Chatham County was willing to buy or was able to obtain financing for commercial property with a plan to hold it for 36 months at the time of the foreclosures. Wilson emphasized that sellers are now requiring “a [12-]month listing agreement at most,” which was the price paid at foreclosure by Sea Island Bank. Thus, a 12-month marketing period reflects a price that would be obtained in a sale under the usual market conditions. Brown’s appraisal based on the 12-month holding period was not simply a deeply discounted figure to sell the property quickly; the figure consisted of the same rate of return which the seller would have realized during the longer 24- to 36-month marketing periods.

Furthermore, the trial court also noted that “the amount paid by [Sea Island Bank] exceeded the amount received by them ($2,500,000) when they sold the property at the end of March 2010.” Kenneth Rabitsch, the commercial lead for Sea Island Bank, testified that the $2,500,000 resale by the bank was “indicative of a quicker sale transaction” compared to the $3,800,000 figure bid by the bank at the foreclosure sale. Accordingly, the trial court did not improperly rely upon a “quick sale” valuation, but rather upon the evidence presented by the Bank that its bid of $3,800,000 for the three properties was the true market value based on the current market conditions at the time of the sale. We find no error.

2. Henderson Property Holdings also contends that the trial court erroneously accepted an opinion of true market value that included deductions for collateral expenses. Henderson also argues that consideration of carrying costs is only appropriate in a bulk sales valuation, rather than a valuation of single parcels of property. We disagree.

This Court has held that closing costs, as well as extra costs a bank incurs in selling foreclosed properties separately, are considered collateral issues that are irrelevant in determining market value. Nevertheless, because deductions such as carrying costs and entrepreneurial profit “factor directly into the price a willing buyer would pay for the [pjroperty, taking them into account does not amount to consideration of issues collateral to the [pjroperty’s true market value.” While the trial court considered Henderson Property Holdings’s appraisal, the trial court expressly noted that the appraisal contained no deduction of any amount for expenses of carrying the property when the evidence showed that the carrying costs exceeded $700,000. Thus, the trial court did not err by relying on Wilson’s appraisal. The downward adjustments rgade by Wilson were not of “the nature and amount of expenses and closing costs to be paid to others in connection with buying or selling [the property].”

Decided July 13, 2011

McCorkle & Johnson, Mathew M. McCoy, Thomas M. Gore, for appellants.

Brown Rountree, Charles H. Brown, Jesse A. Van Sant, for appellee.

Wilson arrived at these numbers using his appraisal at the 36-month point from comparable sales and “backfing] off the expenses that would require over the holding period to arrive at the lower value” because “the person purchasing and paying the [12-] month number would have the reasonable expectation of certain costs [and] taxes.” We have recently held that trial courts may rely on a discounted cash flow analysis to determine the true market value of property sold in a nonjudicial foreclosure sale. Similarly, Wilson’s deductions were based on the time value of money, which is consistent with discounted cash flow analysis. Accordingly, Henderson Property Holdings’s challenge is without merit.

Judgment affirmed.

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

       (Punctuation omitted.) Trefren v. Freedom Bank of Ga., 300 Ga. App. 112, 113 (684 SE2d 144) (2009), citing Fayette Promenade v. Branch Banking & Trust Co., 258 Ga. App. 323, 324 (574 SE2d 319) (2002).

       OCGA § 44-14-161 (b).

       (Punctuation omitted.) Mundy Mill Dev. v. ACR Property Svcs., 306 Ga. App. 730, 731 (703 SE2d 137) (2010).

        Gutherie v. Ford Equip. Leasing Co., 206 Ga. App. 258, 261 (424 SE2d 889) (1992).

       Compare with id. at 259 (explaining that the appraiser’s discount of over 50 percent based on a “quick sale value” was excessive and did not constitute a true market value).

       See Mundy Mill Dev., 306 Ga. App. at 733-734.

       See Wheeler v. Coastal Bank, 182 Ga. App. 112, 114 (1) (354 SE2d 694) (1987); First Nat. Bank &c. v. Childress-Ross Properties, 189 Ga. App. 765, 766 (377 SE2d 533) (1989).

       (Punctuation omitted.) Greenwood Homes v. Regions Bank, 302 Ga. App. 591, 595, n. 3 (692 SE2d 42) (2010).

        Wheeler, 182 Ga. App. at 114 (1).

       See Greenwood Homes, 302 Ga. App. at 595 (1) (c); Blue Marlin Dev. v. Branch Banking & Trust Co., 302 Ga. App. 120, 122 (1) (690 SE2d 252) (2010).


source: Caselaw Access Project

author: Miller, Presiding Judge.

license: Public Domain

text:
    A11A0369.
    HILL v. CLARKE.
    (714 SE2d 385)
   Miller, Presiding Judge.

Clifford Hill brought this action in mandamus against Walter Clarke, in his official capacity as Judge of the Probate Court of Gwinnett County (“Judge Clarke”) upon Judge Clarke’s denial of his application for a Georgia firearms license (“GFL”). After prevailing in the mandamus action, Hill filed a request for attorney fees pursuant to OCGA § 16-11-129 (j). The superior court denied Hill’s motion, finding that “relative equities would be best served” if each party was solely responsible for his own fees. Hill appeals, contending that the superior court’s failure to award attorney fees was in contravention of the statute. Because the superior court based its decision on an erroneous legal theory, we must reverse.

“When a question of law is at issue, as here, we owe no deference to the trial court’s ruling and apply the ‘plain legal error’ standard of review. [Cit.]” Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000).

The record shows that Hill applied to Judge Clarke for a GFL pursuant to OCGA § 16-11-129 on May 19, 2009. Based upon a statutory interpretation of OCGA § 16-11-129 (b) (3) and (b) (5) (A), as in effect at that time, Judge Clarke denied the application. In doing so, Judge Clarke determined that Hill was ineligible for a GFL due to his record of prior drug convictions. The record showed that Hill had entered a first offender plea to a drug charge in 1974 and had been convicted of subsequent drug charges in 1977 and 1978. On June 29, 2009, Hill moved for reconsideration of such ruling based upon an unconditional pardon issued to him in 1988 by the State Board of Pardons and Paroles, which among other things, included the restoration of the right to bear arms. Judge Clarke denied Hill’s motion for reconsideration.

Hill thereafter filed a complaint in mandamus in the superior court. On cross-motions for summary judgment, the superior court granted summary judgment to Hill, directing that he be issued a GFL and that he “file appropriate documentation of his costs and attorney[ ] fees within 21 days[.]” Thereafter, Hill timely filed a request for attorney fees in the amount of $14,588. Without determining whether the amount of fees requested was reasonable or unreasonable, the superior court denied the request, finding that the equities would best be served if each party was to bear his own expenses incident to the litigation.

Hill’s claim for attorney fees was based upon OCGA § 16-11-129 (j), which provides:

When an eligible applicant who is a United States citizen fails to receive a license, temporary permit, or renewal license within the time period required by this Code section and the application or request has been properly filed, the applicant may bring an action in mandamus or other legal proceeding in order to obtain a license, temporary license, or renewal license. If such applicant is the prevailing party, he or she shall he entitled to recover his or her costs in such action, including reasonable attorney’s fees.

(Emphasis supplied.) Given the text of OCGA § 16-11-129 (j), we conclude that the trial court erroneously grounded its order in equity, not in law. See Springs Condo. Assn. v. Harris, 297 Ga. App. 507, 508 (677 SE2d 715) (2009) (“Where a statute’s language as to an award of attorney fees is mandatory, the trial court is required to award attorney fees.”) (footnote omitted); Kroger Co. v. U. S. Foodservice of Atlanta, 270 Ga. App. 525, 530 (3) (607 SE2d 177) (2004) (the award of statutory attorney fees presents a question in law and “[w]hen the statutory requisites are met, the trial court’s discretion to deny the award is eliminated”). Because it is clear that the claim for statutory attorney fees was denied on an erroneous legal theory, reversal is required and the case must be remanded to the trial court for proper consideration of the claim. See Imerys Clays, Inc. v. Washington County Bd. of Tax Assessors, 287 Ga. App. 674, 676 (652 SE2d 580) (2007) (“[A]n appellate court cannot affirm a judgment based on an erroneous legal theory.”) (citations and punctuation omitted).

We nevertheless question whether the statutory attorney fees provision may be applied in the context of this case in light of the doctrine of judicial immunity. However, because the parties do not present arguments on that basis and that issue was not raised and ruled upon in the proceedings below, we shall not address it for the first time on appeal. See Lowery v. Atlanta Heart Assocs., 266 Ga. App. 402, 404 (2) (597 SE2d 494) (2004); Batesville Casket Co. v. Watkins Mortuary, 293 Ga. App. 854, 855 (1) (668 SE2d 476) (2008) (Generally, “[w]e are limited to considering only those grounds raised and ruled on below by the trial court and may not consider a basis for appeal not presented at the trial level.”) (citation and punctuation omitted).

Decided July 13, 2011.

John R. Monroe, for appellant.

Jennifer B. Savage, Karen G. Thomas, Michael V. Stephens II, for appellee.

Given the foregoing, we reverse the judgment of the trial court and remand with direction that the trial court consider the attorney fees issue in accordance with the proper standard and consider the issue of judicial immunity in its efforts to resolve this matter.

Judgment reversed and case remanded with direction.

Ellington, C. J., and Doyle, J., concur in the judgment only.

       Pertinently, subsection (b) (5) (A) of OCGA § 16-11-129 (2009) stated that no GFL shall be issued to a person convicted of a drug offense notwithstanding subsection (b) (3) of such statute, which barred the issuance of a GFL to persons convicted of a felony unless pardoned. OCGA § 16-11-129 (b) (3), (5) (A) (2009). OCGA § 16-11-129 was amended, effective June 4, 2010, but the amendment does not apply in this case.

       We note that the 2010 amendment of this Code section deleted the requirement for status as a United States citizen. OCGA § 16-11-129 (j) (2010).

       We note that “[¡Judicial officers have been shielded from civil actions for acts done in their judicial character from the earliest dawn of jurisprudence down to the latest reported cases.” (Citations and punctuation omitted.) West End Warehouses v. Dunlap, 141 Ga. App. 333 (233 SE2d 284) (1977). See also Earl v. Mills, 275 Ga. 503, 504 (1) (570 SE2d 282) (2002) (affirming the dismissal of the portion of a complaint for damages against a judge since judicial immunity applied).
      [T]his immunity applies even when the judge is accused of acting maliciously and corruptly, and it is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.
      (Citation and punctuation omitted.) Smith v. Hancock, 150 Ga. App. 80, 81 (256 SE2d 627) (1979). Judicial immunity is foreclosed in only two circumstances. “First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge’s judicial capacity. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.” (Citations omitted.) Míreles v. Waco, 502 U. S. 9, 11-12 (112 SC 286, 116 LE2d 9) (1991).


text:
    A11A0373.
    BOLTON v. THE STATE.
    (714 SE2d 377)
   Miller, Presiding Judge.

A jury convicted Mohammed Leon Bolton of one count of computer pornography and child exploitation (“on-line solicitation”) (OCGA § 16-12-100.2 (d) (1)). Bolton appeals, challenging the sufficiency of the evidence and the effectiveness of trial counsel. Finding that the State proved the offense as charged and that counsel did not render ineffective assistance of counsel, we affirm.

The standard of review for sufficiency of the evidence in a criminal case is set out in Jackson v. Virginia[, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979)]. The relevant question is whether, after viewing the evidence in the light most favorable to the [verdict], any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In addition, appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses.

(Footnotes omitted.) McKenney v. State, 303 Ga. App. 370, 371 (1) (693 SE2d 541) (2010).

So viewed, the evidence shows that on October 25, 2005, an “internet-crimes-against-children” officer employed by the Peach-tree City Police Department logged into a website denominated as the “Adult Friend Finder,” using the name “Shelby.” On that day, Bolton under the user name “I Mean Business,” began “messaging” Shelby.

Shelby and Bolton communicated further through MSN’s instant messaging program. Thereafter, Bolton messaged Shelby using the user ID “momusic36.” In the messaging which followed, Shelby disclosed that she was only 15-years old and sent Bolton a photograph of herself. Bolton questioned Shelby’s age based on her photograph, and after an exchange of messages of a sexual nature, asked if she “want[ed] to do it today.” Shelby responded that she was unable to sneak away from her aunt, but could meet the next day. Bolton suggested that he could secretly meet Shelby at her house during the night, indicating that “I do it all the time” and “[I] am really [horny], would love to see yo[u] tonight. I promise to be safe. I am an expert.” When Shelby resisted the nighttime rendezvous, Bolton responded “[U] asking me to take a risk that I could be locked up for and u can’t take this risk.” Ultimately, Bolton suggested the Peachtree City Wal-Mart store at 9:00 a.m. and provided Shelby his cell phone number. Shelby stated that she would be waiting in the store’s garden area and described the clothes that she would be wearing. As the exchange of messages ended, Bolton told Shelby that he was 19 years old and sent her a sexually explicit photograph. Earlier, he had described himself as a 40-year-old African-American man.

Prior to the meeting, Shelby learned that Bolton was using a computer located at the Harvest International Church in Clayton County. At or about the appointed time, officers observed Bolton drive into the Wal-Mart parking lot. Bolton exited his vehicle, entered and exited the Wal-Mart, and then proceeded to the store’s garden area. As Bolton walked past Shelby, who was dressed in the clothes that she had previously described, Bolton said hello. Other officers entered and took Bolton into custody. As he was being placed in handcuffs, Bolton stated, “I was just going to talk to her.” Shelby then dialed the cell phone number that Bolton had provided. Bolton’s cell phone rang. Shelby verified that the call she placed from her cell phone had registered to Bolton’s cell phone.

1. Bolton contends that his conviction for computer pornography and child exploitation (“on-line solicitation”), OCGA § 16-12-100.2 (d) (1), must be reversed because the State failed to prove the underlying offense of child molestation as set out in the indictment. His contention is without merit.

The indictment charged that Bolton violated OCGA § 16-12-100.2 (d) (1) in that he

did intentionally and willfully utilize a computer on-line service: to wit: MSN, to solicit a person believed by said accused to be a child under the age of [16] to engage in conduct which would constitute a violation of OCGA § 16-6-4 by enticing said person to engage in an act of sexual intercourse, contrary to the laws of said State, the good order, peace and dignity thereof.

(Emphasis supplied.) OCGA § 16-12-100.2 (d) (1) pertinently provides:

It shall be unlawful for any person intentionally or willfully to utilize a computer on-line service or Internet service, including but not limited to a local bulletin board service, Internet chat room, e-mail, on-line messaging service, or other electronic device, to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice a child or another person believed by such person to be a child to commit any illegal act described in . . . Code Section 16-6-4, relating to the offense of child molestation or aggravated child molestation ... or to engage in any conduct that by its nature is an unlawful sexual offense against a child.

(Emphasis supplied.)

Relying upon Selfe v. State, 290 Ga. App. 857, 861 (1) (660 SE2d 727) (2008), Bolton argues that he could not be convicted of the on-line solicitation offense as charged since there was no evidence of a child molestation, in essence, that the State failed to prove that he and Shelby were in the physical presence of one another when the offense occurred.

Selfe is distinguishable based upon the trial evidence presented in that case. As an initial matter, the indictment in Selfe set forth proper allegations to sustain a violation of the on-line solicitation offense. See OCGA § 16-12-100.2 (d) (1); Selfe, supra, 290 Ga. App. at 859 (1). Significantly, however, the State’s trial evidence only established that the defendant had enticed the person whom he believed to be a 15-year-old girl to watch him masturbate on the internet by use of a webcam. Selfe, supra, 290 Ga. App. at 859 (1). The observance of a sexual act via webcam or on the computer did not constitute the child molestation offense as then defined. Accordingly, notwithstanding the allegations of the indictnfent, the trial evidence failed to show that the enticement was for the underlying purpose of child molestation. See Selfe, 290 Ga. App. at 859-861 (1).

Contrary to Bolton’s contentions in this case, the rulings in Vines v. State, 269 Ga. 438 (499 SE2d 630) (1998), and Selfe do not apply here. In Vines, the defendant was charged with the crime of child molestation, and therefore, each essential element was required to be proven to sustain the conviction for that particular crime. See OCGA § 16-6-4 (a); Vines, supra, 269 Ga. at 438-439. But here, Bolton was charged with the separate and distinct crime of on-line solicitation. See OCGA § 16-12-100.2 (d) (1). And unlike Selfe, the underlying purpose of Bolton’s solicitation involved an act of sexual intercourse, which would constitute child molestation as alleged in the indictment. See OCGA § 16-6-4 (a) (1).

Although the on-line solicitation crime references child molestation as an underlying purpose, the principal act proscribed by the crime is solicitation and does not require the accomplishment of an act of child molestation. See OCGA § 16-12-100.2 (d) (1). In this regard, the on-line solicitation offense is substantially similar and analogous to the offense of enticing a child for indecent purposes. See OCGA § 16-6-5 (a). “A person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.” (Emphasis supplied.) Id. The statutory language in both OCGA §§ 16-6-5 (a) and 16-12-100.2 (d) (1) similarly proscribe the “solicit[ation]” or “entice[ment]” of a child for the underlying purpose of child molestation. In the context of OCGA § 16-6-5 (a), we have held that a conviction of the offense “need not be based upon evidence that an act of indecency or child molestation was accomplished or even attempted[.]” (Citation and punctuation omitted.) Lasseter v. State, 197 Ga. App. 498, 499 (1) (399 SE2d 85) (1990). Rather, the evidence need only show that “an act of indecency or child molestation was the intended motivation for the enticement.” (Citation and punctuation omitted.) Id. at 499-500 (1). Accordingly, the reference to the underlying child molestation offense is relevant to show the element of intent, not to establish the principal act constituting the crime. Id. Recognizing the distinction, we have further held that child molestation and enticing a child for indecent purposes “are two separate crimes involving different elements, and generally, enticement is completed before child molestation occurs.” (Citation omitted.) Jackson v. State, 274 Ga. App. 26, 28 (1) (c) (619 SE2d 294) (2005). Notably, the State is not required to separately charge a defendant with the underlying child molestation offense in order to obtain a conviction for enticing a child for indecent purposes. Id. at 27-28 (1) (c).

Based upon the plain language of OCGA § 16-12-100.2 (d) (1) and the allegations of the indictment, the principal act constituting the offense was the use of a computer on-line service or internet service “to solicit... or entice” a person who he believed to be a child for the underlying purpose of child molestation. Here, the evidence establishes that Bolton committed the offense by using a computer on-line service to solicit sex from a person who he believed was a 15-year-old girl, an act which would have constituted child molestation. Contrary to Bolton’s contentions that there was a fatal variance between the allegations of the indictment and the trial evidence, the evidence set forth above was sufficient to establish his guilt of the on-line solicitation offense as charged. See OCGA § 16-12-100.2 (d) (1). See, e.g., Dennard v. State, 243 Ga. App. 868, 876 (1) (e) (534 SE2d 182) (2000) (stating that the Computer Pornography and Child Exploitation Prevention Act, codified at OCGA § 16-12-100.2, created “a new type of crime — i.e., use of a computer for certain sexual purposes — regardless of whether such conduct was proscribed under any other statute”); Spivey v. State, 274 Ga. App. 834, 840 (3) (619 SE2d 346) (2005) (ruling that OCGA § 16-12-100.2 (d) (1) proscribes solicitation of a minor to engage in sexual conduct, and “explicitly provides for liability!,] even where there is no child[,] if the required mens rea exists”).

2. Bolton also challenges the effectiveness of trial counsel, arguing that trial counsel failed to request a jury charge on entrapment. Again, we discern no error.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct.

(Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003). See also Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

If a defendant fails to prove one prong of this test, the reviewing court need not examine the other prong. . . . [Further,] [i]n reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, and we independently apply the legal principles to the facts.

(Punctuation and footnotes omitted.) Burce v. State, 299 Ga. App. 849, 849 (683 SE2d 901) (2009).

To establish his claim that trial counsel was ineffective in failing to request a jury charge on the affirmative defense of entrapment, Bolton was required to show that entrapment was raised by the evidence. See Sanford v. State, 284 Ga. 785, 788 (3) (671 SE2d 820) (2009) (a jury charge must be supported by the evidence); Campbell v. State, 281 Ga. App. 503 (1) (636 SE2d 687) (2006) (“It is reversible error to fail to give an instruction on an affirmative defense supported by the evidence.”) (citation omitted). “Entrapment is an affirmative defense that is established by showing that (1) the idea for the crime originated with the State agent; (2) the defendant was induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant was not predisposed to commit the crime.” Logan v. State, 309 Ga. App. 95, 97 (1) (a) (709 SE2d 302) (2011). See St. Jean v. State, 255 Ga. App. 129, 130 (564 SE2d 534) (2002). And

[a]s a general rule, in order to raise the defense of entrapment, the defendant must first admit the commission of the crime and then show that he did so because of the unlawful solicitation or inducement of a law enforcement officer. The rationale for this rule is that it is thought to be factually inconsistent and confusing for a defendant to deny that he committed a criminal act and simultaneously to complain that he was entrapped into its commission. But, if a reasonable inference of entrapment may be drawn by a rational jury from the State’s evidence, the defendant is entitled to a jury charge on entrapment unless he has presented evidence of entrapment inconsistent with his denial of the commission of the crime.

Decided July 13, 2011.

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

Scott L. Ballard, District Attorney, Robert W. Smith, Jr., Assistant District Attorney, for appellee.

(Citations and punctuation omitted.) Id.

Bolton did not admit to his commission of the crime. Nor do we find that the State’s case shows any evidence of entrapment. Specifically, the evidence shows: (i) that the notion of meeting for sexual activity originated with Bolton; (ii) that even after Shelby identified herself as 15 years old, Bolton was asking Shelby sexually explicit questions; and (iii) that Bolton was predisposed to commit the crime because he pursued the illicit activity he sought while contemporaneously expressing fear of the potential criminal sanctions he faced.

Under these circumstances, Bolton was not entitled to a jury charge on entrapment. Consequently, counsel’s failure to request a jury charge on entrapment was not deficient performance of counsel. See Harvill v. State, 296 Ga. App. 453, 456-457 (1) (c) (674 SE2d 659) (2009).

Judgment affirmed.

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

       When the decisions in Vines v. State, 269 Ga. 438 (499 SE2d 630) (1998), and Selfe were rendered, OCGA § 16-6-4 (a) proscribed only one method of committing the child molestation offense, which was by doing “any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 was subsequently amended, effective May 5, 2009, to add paragraph (a) (2), which provides that the child molestation offense is also committed when a person “ [bjy means of an electronic device, transmits images of a person engaging in, inducing, or otherwise participating in any immoral or indecent act to a child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” See Ga. L. 2009, p. 729, § 1.

       We note that Selfe is also factually distinguishable since there was no evidence that the defendant solicited sex from the child. See Selfe, supra, 290 Ga. App. at 859 (1). The evidence instead showed that at several points during the on-line conversations, the defendant stated that he would not meet with a 15-year-old girl and that he would “talk s — t about it all day long with [her], but [he] won’t lay a hand on [her].” (Punctuation omitted.) Id. Here, on the other hand, Bolton solicited sex from the person whom he believed to be a 15-year-old girl, using sexually explicit terms and asking if she “want[ed] to do it today.”


author: Barnes, Presiding Judge.

text:
    A11A0538.
    In the Interest of J. F., a child.
    (714 SE2d 399)
   Barnes, Presiding Judge.

The child advocate (hereinafter “appellant”) of seven-year-old J. F. appeals from the trial court’s order dismissing the deprivation complaint instituted by the DeKalb County Department of Family and Children Services (“DFACS”). The appellant contends that the trial court failed to apply the proper standard of evidence to the probable cause hearing. We do not agree and upon our review affirm the order of the juvenile court.

On appeal, this court defers to the juvenile court’s factfinding. See In the Interest of R. N. R., 257 Ga. App. 93 (1) (570 SE2d 388) (2002). We neither weigh the evidence nor assess witness credibility. Id. So viewed, the evidence shows that on February 5, 2010, DFACS received a referral for J. F. from the DeKalb County Police Department after the police were notified by J. F.’s doctor thatThe child was infected with chlamydia. Upon their investigation, police suspected that a maternal uncle living at the child’s residence was the perpetrator. The uncle was arrested on the same day as the referral, and later deported. J. F. tested negative for chlamydia on February 24, 2010, but a third test on April 8, 2010 was positive. On April 13, 2010 the DeKalb County Police Department filed a Complaint for Deprivation as to J. E, and the child was taken into DFACS’s custody. A detention hearing on the deprivation complaint was scheduled for April 16 and continued until April 26, 2010, at which time DFACS moved to dismiss the claim because the mother and stepfather had tested negative for chlamydia and were cooperating with authorities. The court subsequently dismissed the complaint, and issued its order on May 10, 2010, finding, in part, that “there was no threat to the child in the home.”

The guardian ad litem filed an Emergency Motion for Reconsideration on the same day and filed a new complaint for deprivation with the same allegations. On April 27, 2010, the trial court held an emergency hearing on the motion to reconsider and the new deprivation complaint. The notice of appeal was filed May 13, 2010 as to the May 10 order, and the trial court subsequently denied the motion for reconsideration and dismissed the second complaint in an order filed on June 2, 2010. However, the juvenile court was divested of jurisdiction to rule on the motion for reconsideration upon filing of the notice of appeal. State v. White, 282 Ga. 859, 860 (1) (655 SE2d 575) (2008). Thus, the June 2 order is ineffective and cannot be considered on appeal.

1. Contrary to appellee’s contention, even though the juvenile court held a hearing on the motion for reconsideration and the second complaint, and issued a subsequent order pursuant to that hearing, the May 10 order dismissing the original complaint was a final order and thus, directly appealable pursuant to OCGA § 5-6-34 (a) (1). See In the Interest of J. P., 267 Ga. 492 (480 SE2d 8) (1997); In the Interest of C. F., 266 Ga. App. 325, 326 (596 SE2d 781) (2004).

2. The appellant contends that the juvenile court failed to apply the proper standard of evidence at the detention hearing. She argues that the trial court failed to determine whether “reasonable grounds exist[ed] to believe that the allegation in the complaint or petition [was] true.” See Uniform Juvenile Court Rule 8.1 (“U.J.C.R.”). She maintains that, applied correctly, “if any evidence is presented in support of the complaint, then dismissal would only be warranted if evidence of greater weight is presented in opposition to the complaint.” We disagree.

As defined in OCGA § 15-11-2 (8) (A), a deprived child is a child who “[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals.”

To authorize even a loss of temporary custody by a child’s parents, on the basis of deprivation, the deprivation must be shown to have resulted from unfitness on the part of the parent, that is, either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child.

In the Interest of J. W., 271 Ga. App. 518, 518-519 (610 SE2d 144) (2005).

Thus, during the initial detention hearing, the juvenile court had to determine whether J. F. should be released or detained pending further court proceedings, and also whether reasonable grounds existed showing either the intentional or unintentional misconduct of the parents which resulted in abuse or neglect of J. F. U.J.C.R. 8.1; see generally OCGA § 15-11-49 (c) (3) and (e). At this early stage, the court need only find that there are reasonable grounds to believe the allegations in the complaint, not clear and convincing evidence as required in a later deprivation or termination hearing. Once the juvenile court determines that reasonable grounds do or do not exist, “[t]he function of the appellate court is limited to ascertaining whether there was some evidence to support the juvenile court’s determination. Determinations of a juvenile court made on an exercise of discretion, if based upon evidence, will not be controlled by this court.” (Citation and punctuation omitted.) In the Interest of K. S. K., 216 Ga. App. 257, 258 (2) (454 SE2d 165) (1995). Moreover, “the burden of presenting such evidence lies with the [Sjtate.” (Citations omitted.) In the Interest of S. P., 189 Ga. App. 829 (377 SE2d 911) (1989).

Decided July 13, 2011.

Good & Lee, Darice M. Good, Temika Williams-Murry, Karimah Boston, for appellant.

Here, the deprivation complaint alleged that J. F. was deprived because the “child tested positive twice for Chlamydia (STD), [and] mom is non-supportive with forensic evaluations máking appointments.” At the hearing, DFACS requested that the deprivation complaint be dismissed and indicated that they would continue to “provide ongoing services to the family.” It presented evidence that the mother and stepfather had tested negative for chlamydia, and that J. F. and the other children had been recently tested, and DFACS was awaiting results. DFACS also said that contrary to the information in the complaint, the mother was cooperating, and had scheduled a forensic interview for J. F. for later in the week. A medical forensics evaluation revealed that J. F. had not been exposed to chlamydia through penetration, and there was no evidence of vaginal trauma, although there was no explanation for the second positive test. The case manager testified that DFACS did not believe that J. F. was in any immediate danger or harm within the home, and would continue with followup for the mother, including counseling and parent aide. At the time of the hearing, the only people living in the home with J. F. were her mother, stepfather, and three other children, and there was no evidence of interactions with anyone currently in the home that might have caused her harm.

Based on the evidence, the juvenile court acted within its discretion in finding that there were no reasonable grounds to find that J. F. was deprived per the allegations in the complaint, and thus, in dismissing the deprivation complaint.

Judgment affirmed.

Adams, J., concurs. Blackwell, J., concurs in Division 1 and in the judgment.

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

       When a court appoints a guardian ad litem to represent a minor, the minor is in effect made a party to the action and has standing through the guardian ad litem to appeal. See In the Interest of M. B. B., 241 Ga. App. 249, 250 (1) (a) (526 SE2d 76) (1999) (although she elected not to do so, guardian ad litem had authority to bring appeal on behalf of child); Miller v. Rieser, 213 Ga. App. 683, 690 (446 SE2d 233) (1994).

       “The purposes of the detention hearing are to determine whether a child who has been taken into custody shall be released or detained pending further court proceedings, and if reasonable grounds exist to believe that the allegations in the complaint or petition are true.” U.J.C.R. 8.1.

       Although these cases deal primarily with delinquency transfer, they are analogous in that a similar standard of proof — reasonable grounds — is applied.


author: Doyle, Judge.

text:
    A11A0587.
    JENKINS v. THE STATE.
    (714 SE2d 410)
   Doyle, Judge.

Following a jury trial, Minion Jenkins was convicted of misdemeanor obstruction of a law enforcement officer. Jenkins appeals, challenging the sufficiency of the evidence. We affirm, for the reasons that follow.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.

So viewed, the record shows that on December 12, 2009, at approximately 9:00 a.m., a Henry County police officer responded to a residence to investigate a report of an incident involving Jenkins. When the officer arrived, Jenkins was no longer present at the scene, and the officer departed. The officer later returned to the residence at 11:45 a.m. after being advised that Jenkins was on his way back. When the officer observed Jenkins’s vehicle enter the neighborhood, the officer, who was driving a marked police vehicle, executed a traffic stop and asked Jenkins to proceed to the residence. There, the officer spoke to Jenkins briefly and, based on their conversation, advised Jenkins that he intended to place him under arrest for offenses arising out of the earlier incident. The officer was unable to handcuff Jenkins because Jenkins immediately backed away, crying and saying he did not want to go to jail. Although the officer instructed him to stop, Jenkins ran, circled the house, and returned to the front porch of the residence, where he argued with the occupant. The officer gave chase and further ordered Jenkins to stop and get on the ground. When Jenkins failed to comply, the officer again ordered Jenkins to the ground and warned him that he would “tase” him if he refused to do so. Jenkins finally complied, and the officer placed him in handcuffs.

In an initial accusation, the State charged Jenkins with obstruction of a police officer, family violence battery, and family violence simple battery; the battery counts list the victim as “the other parent of [Jenkins’s] child.” The State subsequently filed an amended accusation, charging Jenkins only with obstruction, and entered a nolle prosequi for the battery charges. Immediately prior to trial, defense counsel made a verbal motion in limine “to exclude any mention of the nature of the . . . original charges that the arrest was for since that’s no longer an issue for the jury ip this case,” arguing that “we don’t want the jury to hold anything about this previous inciden[t] against Mr. Jenkins.” Following a lengthy colloquy, the trial court granted the motion. The jury found Jenkins guilty, and Jenkins appeals, challenging the sufficiency of the evidence.

A person commits the offense of misdemeanor obstruction of a law enforcement officer when he “knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties. ...” Here, the evidence shows that after the officer advised Jenkins that he was under arrest, Jenkins resisted the officer’s attempts to handcuff him, ran from him, and failed to comply with the officer’s commands to stop. “The question [of] whether [Jenkins’s] refusal to obey the police officer’s commands had the effect of hindering or obstructing the officer was for the trier of fact to decide.” Given the evidence submitted at trial, we find no merit in Jenkins’s argument on appeal that his actions did not have the effect of obstructing the officer.

To the extent that Jenkins challenges the sufficiency of the evidence on the basis that the officer was not engaged in the lawful discharge of his duties, Jenkins has abandoned this claim of error by failing to support it with argument or citation of authority. Preter-mitting his abandonment, however, we conclude that Jenkins waived this argument at trial.

Defense counsel specifically requested that the trial court exclude any evidence regarding the domestic violence battery charges. When the prosecutor stated that the evidence should not be excluded if the defense intended to challenge the merits of the arrest itself, Jenkins’s trial counsel responded, “we haven’t necessarily made that decision yet, your Honor. ...” The trial court then excluded any evidence of the battery charges, but noted that “either it’s all in or it’s all out. . . . [I]f it gets in it’s all going in. If anybody messes up and it gets in, it’s all going in.”

Notwithstanding his previous apparent uncertainty regarding whether he intended to challenge the merits of the family violence battery arrests, defense counsel advised the jury during opening statements:

[The prosecutor] and I agree about almost everything that happened. We agree . . . that [the officer] was at this location and he was there — he was going to arrest Mr. Jenkins. We’re not here today about why he was going to arrest him. We’re here about what happened with the arrest. That’s the only concern for you all today.

Then, during closing argument, Jenkins’s trial counsel informed the jury that

I don’t believe there’s going to be any disputes in this situation [that] the officer’s commands were legitimate. I don’t think that’s going to be where the issue is. I don’t think there’s any commands there that were illegitimate. So the pullover, yes, if you ’re going to arrest someone you ’re allowed to tell them to pull over. That’s legitimate. . . ,

Instead, defense counsel argued that Jenkins did not run from the officer, but merely backed away from the officer before he was advised that he was under arrest, and that Jenkins lacked the requisite intent to obstruct because the officer did not give him a reason for the arrest.

Defense counsel’s comments during opening and closing statements clearly led the trial court and the State to believe that Jenkins was conceding that the officer’s arrest was “legitimate.” Moreover, defense counsel took no affirmative action following the trial court’s ruling on his motion in limine to suggest that Jenkins was contesting the lawfulness of his arrest. Under these circumstances, Jenkins has waived his right to challenge the sufficiency of the evidence regarding whether the officer was in the lawful discharge of his official duties.

Decided July 13, 2011.

E. Suzanne Whitaker, for appellant.

Charles A. Spahos, Solicitor-General, Joseph L. Stone, Assistant Solicitor-General, for appellee.

Judgment affirmed.

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

       OCGA § 16-10-24 (a).

       (Punctuation omitted.) Frazier v. State, 305 Ga. App. 274 (699 SE2d 747) (2010).

       (Punctuation omitted.) Mayhew v. State, 299 Ga. App. 313, 317 (1) (b) (682 SE2d 594) (2009).

       See OCGA § 16-10-24 (a). See also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Mayhew, 299 Ga. App. at 317 (1) (b).

       See Court of Appeals Rule 25 (c) (2); Jackson v. State, 309 Ga. App. 796, 800 (2) (714 SE2d 584) (2011). Although Jenkins challenges the sufficiency of the evidence on appeal, he makes no specific argument in his appellate brief regarding the officer’s purported lack of probable cause to arrest him. In a single sentence, Jenkins states that “[t]he ‘knowingly and willfully’ requirement in the statute dictates that the State must prove that the Appellant undertook a deliberate course of conduct specifically intended to obstruct an officer in the lawful discharge of his duties.” Jenkins’s entire argument, however, focuses on whether he failed to comply with the officer’s directions and, if so, whether his obstruction was knowing and wilful. At no point does Jenkins point to a lack of evidence that the officer was not in the lawful discharge of his duties and/or argue that he lacked probable cause to arrest Jenkins.

       (Emphasis supplied.)

       (Emphasis supplied.)

       If the trial court had not concluded that the motion in limine and its ruling thereon effectuated a stipulation from Jenkins that the officer was in the lawful discharge of his duties, there would have been no need for a trial because the State would have been unable to prove that element of the obstruction charge.

       For example, Jenkins did not move for a dismissal of the charges against him following the grant of his motion, nor did he move for a directed verdict after the State rested. Of course, a “defendant may challenge the sufficiency of the evidence by appealing the denial of his motion for new trial, even though he did not invoke such a ruling from the court at trial.” Jones v. State, 219 Ga. App. 780 (1) (466 SE2d 667) (1996). Nevertheless, defense counsel’s failure to make a motion for directed verdict or take any further affirmative action to indicate that he was contesting the lawfulness of the officer’s actions further supports the determination that Jenkins stipulated thereto.

       See Scott v. State, 201 Ga. App. 162, 163 (1) (410 SE2d 362) (1991) (holding that the defendant “waived his right to challenge the sufficiency of the evidence of the elements of the crimes charged” by his comments to the court and the prosecutor). See also Clark v. State, 300 Ga. App. 135, 136 (684 SE2d 305) (2009) (“On appeal, one cannot complain of a result he procured or aided in causing.”) (punctuation omitted); Sanders v. State, 252 Ga. App. 609, 613 (2) (556 SE2d 505) (2001) (“ ‘Parties may agree to stipulate to facts in criminal and civil cases.’ ”).


author: Dillard, Judge. Mikell, Judge,

text:
    A11A0601.
    THE STATE v. AUSTIN.
    (714 SE2d 671)
   Dillard, Judge.

The State appeals the trial court’s grant of Robert John Austin’s motion to suppress statements made and evidence obtained at his home after officers responded to a call that shots had been fired there. The State contends that the trial court erred in granting the motion after finding that Austin had not been read his Miranda rights. For the reasons noted infra, we affirm in part and reverse in part.

The record shows that Cobb County police officers received a call that shots had been fired in a residential area on the afternoon in question. The call, made by a neighbor, implicated Austin’s home, and at least four officers responded by approaching the home in a tactical manner. Using trees and other available cover to conceal their bodies (though no additional shots were heard during the approach), the officers carefully made their way to Austin’s driveway, where they spotted two men outside the garage.

As the officers drew closer with their weapons at the ready, one of the men — later determined to be Austin — spotted them and retreated into the garage. Concerned that the men might be armed, the officers ordered the men to show themselves with their hands up. Although the gentleman outside the garage was very cooperative, Austin proved more difficult. Indeed, when Austin emerged from the garage, he appeared angry and did not immediately show his hands.

Thereafter, both men were identified and subjected to pat-downs. During this procedure, Austin was argumentative, slow to respond, and belligerent. He also appeared intoxicated, with slurred speech, glassy eyes, and unsteady balance; and he admitted to having consumed three to four beers that afternoon. And when the officers informed Austin that they were responding to a call of shots fired, he began to rant about his neighbor and an apparent conflict between the two of them.

During this tirade, Austin appeared to take on a fighting stance, squaring up with an officer face-to-face. In response, the officer handcuffed Austin, and in doing so told him that (1) he was not under arrest, (2) he was being cuffed for both the officers’ protection and his own, and (3) he needed to calm down. Thereafter, Austin admitted to having fired a gun but said that he had done so while engaging in target practice in his back yard. Nevertheless, officers were concerned that, given the proximity to other homes, the potential for injuries could be high depending on the type of gun fired. And although Austin claimed to have used a handgun, the officers wanted to visually verify that he had not used a shotgun — which, in the officers’ opinion, would have heightened the potential for injuries.

Eventually, Austin — who by that time had calmed down but remained in handcuffs — stated that he would take the officers inside his home to see the gun he had used. He then escorted the two officers inside (instructing them in how to manipulate a tricky doorknob to enter the house), and led them to a bedroom, where he indicated that the gun he had used for target practice was beneath the mattress. While retrieving and securing the handgun, an officer noticed a small amount of marijuana in a container on the bedside table. And while Austin was not placed under arrest at that point, the officer asked if he had additional guns or drugs in the house and, if so, to inform them of their locations. Austin then indicated that there was additional marijuana in his dresser, which the officers then opened to find a one-gallon bag containing the contraband. Austin also led the officers through the remainder of the home, pointing out additional firearms (which the officers collected).

Once Austin and the officers exited the home, Austin was placed under arrest. He was subsequently indicted on felony possession of marijuana and possession of a firearm during the coVnmission of a crime, namely the handgun that was retrieved from beneath the mattress.

Thereafter, Austin filed a motion to suppress “tangible evidence found inside the . . . residence and alleged statements made while [Austin] was in custody without” Miranda warnings. The trial court granted the motion, finding that the statements made by Austin after he was handcuffed and the tangible evidence seized as a result of those statements were inadmissible because Austin was in custody for purposes of Miranda. This appeal follows.

At the outset, we note that on a motion to suppress, the State has the burden of proving that a search was lawful. And “[a]n appellate court reviewing a trial court’s order on a motion to suppress must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.” But when, as here, “the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo review.” With these guiding principles in mind, we will now address the State’s enumerations of error in turn.

1. The State first argues that the trial court erred in excluding physical evidence obtained from Austin’s home by misapplying state and federal law to find that the tangible evidence must be excluded as the “fruit” of statements obtained in violation of Miranda v. Arizona, We agree that the trial court misapplied the law; however, for the reasons noted infra, we nonetheless affirm in part and reverse in part.

It is well established that even when probable cause to arrest exists, “warrantless intrusion of a person’s home is prohibited by the Fourth Amendment, absent consent or a showing of exigent circumstances” because “[a] citizen’s home is an unquestionable zone of privacy under the Fourth Amendment[.]” And when the State “seeks to justify a warrantless search on grounds of consent, it has the burden of proving that the consent was, in fact, freely and voluntarily given.” Indeed, “[v]oluntariness must reflect an exercise of free will, not merely a submission to or acquiescence in the express or implied assertion of authority.” Thus, to have lawfully seized the contraband discovered within Austin’s home, the State had the burden of proving that Austin voluntarily consented to a search.

The voluntariness of consent to search is measured by evaluating the totality of the circumstances, which includes factors such as prolonged questioning; the use of physical punishment; the accused’s age, level of education, intelligence, length of detention, and advisement of constitutional rights; and the psychological impact of these factors on the accused. The actual scope of consent is also evaluated by examining the surrounding circumstances, using an “objective reasonableness” standard to consider “what... a typical reasonable person [would] have understood by the exchange between the officer and the suspect[.]”

In the case sub judice, Austin invited officers to follow him inside his home to examine the handgun he claimed to have fired. There is no indication in the record that Austin was coerced into doing so. Indeed, the idea to lead officers to the gun was Austin’s own. And under the circumstances (i.e., the officers having responded to a “shots fired” call and Austin’s aggressive demeanor during the investigation), it was perfectly reasonable to handcuff Austin and to leave the handcuffs on as he led officers through his home. Moreover, the fact that a suspect is handcuffed does not in and of itself render his or her consent involuntary. Accordingly, we conclude that Austin voluntarily consented to leading officers through his home to see the handgun he claimed to have fired, resulting in a lawful seizure of that gun and of the small amount of marijuana that officers subsequently observed in plain view.

However, the scope of Austin’s consent was limited to showing officers the handgun beneath his mattress, and despite the discovery of the marijuana in plain view, “[tjhe presence of contraband without more does not give rise to exigent circumstances.” Thus, in order to lawfully seize any additional drugs or guns in Austin’s home, police were required to obtain additional consent to search. And under the totality of the circumstances, the State has failed to prove that Austin freely and voluntarily consented to expanding the search.

A Cobb County police officer — who was the sole witness at the motion to suppress hearing — testified that after spotting the small amount of marijuana on Austin’s bedside table, he said the following: “Here’s some marijuana you have on your bed, [sic] do you have anymore in the house? You know that you can’t have that in your house. Why don’t you let me know where it is and we’ll go ahead and grab it now.” In response, Austin looked toward his dresser and said “[i]t’s in the drawer.” And after retrieving the drugs, the officer asked of Austin, “Do you have any . . . other guns or drugs in the house?” Austin then showed officers where his additional guns were kept throughout the house.

Considering the totality of the circumstances at this point in Austin’s encounter with the officers, the State failed to meet its burden of showing that he voluntarily consented to expanding the search of his home. Indeed, while Austin “apparently acquiesced to the officer’s directive to give him the [additional drugs and guns], we cannot say that single factor demonstrated free consent or showed that [Austin] felt free to refuse to do so.” Unlike when Austin himself suggested that the officers come inside his home to view his handgun, at the point when Austin consented to the search of his dresser, he (1) was handcuffed inside his home with two officers, (2) knew officers had spotted marijuana in plain view, and (3) was explicitly told “you can’t have that in your house.” Under these circumstances, we cannot say that “a reasonable person would feel free to decline the officers’ request to search or otherwise terminate the encounter.”

Accordingly, we affirm the trial court’s grant of the motion to suppress as to the bag of marijuana seized from Austin’s dresser and as to any additional firearms seized thereafter, but reverse the grant of the motion to suppress as to the handgun located beneath Austin’s mattress and the small amount of marijuana found by the officers in plain view.

2. The State further contends that the trial court erred in suppressing the statements Austin made after he was handcuffed by finding that he was in custody for purposes of Miranda. Again, we affirm the suppression as to some statements and reverse as to others.

The protections of Miranda arise “when an individual is (1) formally arrested or (2) restrained to the degree associated with a formal arrest.” And for purposes of the second prong, “an individual is in custody if a reasonable person in the place of the defendant would feel so restrained as to equate to a formal arrest.” To this end, “it is not relevant that investigators (1) might have focused their suspicions upon the person being questioned, or (2) have already decided that they will take the person into custody and charge them with an offense, so long as that individual is not in custody.”

As explained supra, Austin was handcuffed for purposes of officer safety after he took on what appeared to be a fighting stance while being questioned by an officer, but he was explicitly told at that time that he was not under arrest and that the handcuffs were for both the officers’ safety and his own. Accordingly, a reasonable person would not have felt that he or she was under formal arrest at that point. Therefore, contrary to the trial court’s decision, any statements made by Austin between the time he was placed in handcuffs and the point when the officers discovered marijuana on his bedside table (after Austin voluntarily led them through his home) were admissible even in the absence of Miranda warnings.

However, after officers discovered marijuana in plain view in Austin’s bedroom, the situation changed. As detailed supra in Division 1, an officer then said to the still-handcuffed Austin, “You know that you can’t have [marijuana] in your house. Why don’t you let me know where [any additional marijuana] is and we’ll go ahead and grab it now.” After the officers seized the marijuana from the dresser, one then inquired as to other guns or drugs in the house. Only then did Austin inform the officers as to the locations of his additional firearms. Under these circumstances, a reasonable person would have considered him or her self in custody following the discovery of the marijuana in plain view. Accordingly, consistent with the trial court’s decision, any of Austin’s statements made thereafter should be excluded.

For all the foregoing reasons, we affirm the trial court’s grant of the motion to suppress in part and reverse in part.

Judgment affirmed in part and reversed in part.

Smith, P. J., concurs. Mikell, J., concurs specially.

Mikell, Judge,

concurring specially.

I respectfully disagree with the case law, which the majority correctly cites just before beginning its Division 1, and which controls this appeal. I urge our Supreme Court to reconsider those precedents which decree the rules for deciding the appeal of a trial court’s decision on a motion to suppress evidence as having been seized in violation of the Fourth Amendment to the United States Constitution.

The rule I object to states that whenever the evidence in the trial court was “undisputed” or “uncontroverted,” the review on appeal is de novo. Where testimonial evidence has been adduced in the trial court, de novo review should not be applied by the appellate courts, because only the trial court has seen the demeanor of the witnesses as they take the oath and as they testify. When we apply de novo review, we second-guess the trial court based on a cold record.

But the main problem with de novo review in these cases is that the evidence is almost never undisputed. The evidence in a motion to suppress is undisputed only when it is stipulated. When the evidence depends in any way on testimony, even the uncontradicted testimony of a single witness, as in the case at bar, then the evidence is disputed; de novo review is not appropriate; and our standard of review should be “clearly erroneous.”

1. The reason “undisputed” evidence is really “disputed” evidence is found in an ancient Georgia rule of law. For 15 years in superior court and state court, I instructed juries that they could believe or disbelieve all or any part of the testimony of any witness. This particular instruction was taken verbatim from the suggested pattern jury instruction.

I am on even firmer ground when I assert that the superior court judges’ rule applies with equal force when a trial judge sits alone, without a jury, as the trier of fact. The rule should apply when the trial judge conducts a bench trial; hears a petition for a temporary restraining order or preliminary injunction; or hears a child custody dispute, a petition for bail bond, or a motion to suppress evidence. The two dissenters in the leading case, Tate v. State, relied on the venerable rule that the unimpeached, uncontroverted testimony of a sworn witness may not be “disregarded.” But there are controlling precedents which hold that the venerable rule means that the trier of fact must consider the testimony of a witness but is not required to believe it.

The idea that a different rule from that enunciated in Tate applies to motions to suppress originated in the oft-cited decision in Vansant v. State. Vansant asserted that when the evidence in the trial court was undisputed, and no question of credibility was presented, then the standard of review on appeal is de novo. As argued above, however, a question of credibility always arises, and the evidence is never undisputed, when the evidence is testimonial.

To promulgate this special rule for the review of motions to suppress, the Vansant majority relied on a footnote in an important decision, State v. Davis. The defendant, Troy Anthony Davis, was accused of murdering a police officer in Savannah. His two-decade-long fight to evade his death sentence has attracted world-wide publicity.

Despite the high-profile nature of the police investigation, the trial judge suppressed highly-incriminating evidence seized from Davis’s residence. The state appealed. The Supreme Court of Georgia, following the traditional rule, gave deference to the trial judge’s decision and affirmed. But in a footnote, later relied on by the Vansant majority, the Davis court speculated that a “different” standard of review might apply when the evidence was “undisputed.” This footnote is dictum by its terms. And the precedential authority of the Davis footnote is further weakened by the fact that the authority cited is introduced with a significant warning, the signal “See generally.” Technically speaking, this signal means that what follows does not support the point asserted in the text but merely contains information which might shed light on the subject. The footnote in Davis is surely the most slender reed ever leaned upon by an appellate court when making a major change in a well-settled rule of law. And neither the state nor the federal decisions mentioned in the Davis footnote address the key points, that (1) testimony is never undisputed, and (2) it makes no sense to have a different rule for review of motions to suppress than, for example, bench trials.

2. Another shortcoming of the Vansant rule, founded on the footnote in Davis, is that it cleverly sidesteps the tried-and-proven precept that, on appeal, all inferences are to be drawn to support the decision of the trier of fact. For example, in the case at bar, whether or not the accused was “in custody” at the time he made statements about the type of gun he had fired and led the officers into the house (telling them about the balky doorknob) was an inference to be drawn from all the circumstances. These circumstances included the handcuffs, the number of officers present, their “tactical” approach to the garage (i.e., with guns drawn), the reassuring statements by the officers, etc. The trial court drew that inference one way and the majority today draws it a different way.

3. The majority, by the way, often raises the issue of whether or not the defendant was at various times under arrest. But the critical factual inference for determining if the Miranda warnings should have been given is whether the defendant is in custody, not whether or not he has been arrested.

Decided July 13, 2011.

Patrick H. Head, District Attorney, Ann B. Harris, John R. Edwards, Amelia G. Pray, Anna G. Cross, Assistant District Attorneys, for appellant.

Thomas E. Griner, for appellee.

In conclusion, I concur with the majority and with all that is there written because I believe the majority’s analysis is mandated by controlling precedent. But I do urge our Supreme Court to reconsider and overrule that precedent, especially the decision in Vansant v. State, an opinion which has caused 17 years of mischief.

       An officer testified that Austin remained in handcuffs because although he had “calmed down significantly,” he had not done so to a point at which officers felt it was “safe to . . . just let [Austin] roam about.”

        See OCGA § 16-13-30 (a) (“[I]t is unlawful for any person to purchase, possess, or have under his control any controlled substance.”).

       See OCGA § 16-11-106 (b) (making it unlawful for a perpetrator to have ‘‘on or within arm’s reach of his or her person a firearm . . .” during the commission or attempted commission of certain crimes).

       See OCGA § 5-7-1 (a) (4) (permitting a direct appeal when the State’s evidence has been ruled inadmissible); see also State v. Stanfield, 290 Ga. App. 62, 63 (1) (658 SE2d 837) (2008) (holding that ‘‘[a]n appeal involving the exclusion of a statement on voluntariness grounds is no exception to” OCGA § 5-7-1).

        Walker v. State, 299 Ga. App. 788, 788 (683 SE2d 867) (2009).

        Id. (footnote omitted).

        Id.

       384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

        See, e.g., United States v. Patane, 542 U. S. 630, 636 (I) (124 SC 2620, 159 LE2d 667) (2004) (“The Self-Incrimination Clause ... is not implicated by the admission into evidence of the physical fruit of a voluntary statement.”); Taylor v. State, 274 Ga. 269, 269 (553 SE2d 598) (2001) (“[T]he ‘fruit’ of a Miranda violation is not subject to the exclusionary rule under Georgia law.” (footnote omitted)); Brown v. State, 292 Ga. App. 269, 273 (1) (663 SE2d 749) (2008) (“The Supreme Court of Georgia has held that the ‘fruit’ of a voluntary statement obtained in violation of Miranda and Edwards is not subject to the exclusionary rule.” (citations omitted)); Andrews v. State, 222 Ga. App. 129, 132 (4) (473 SE2d 247) (1996) (“In Georgia the exclusionary rule does not apply to evidence derived from a voluntary statement obtained without the benefit of Miranda warnings.” (citation and punctuation omitted)).

        See, e.g., English v. State, 288 Ga. App. 436, 442 (3) (654 SE2d 150) (2007) (“[A] judgment right for any reason will be affirmed.” (footnote omitted)).

        State v. Sims, 240 Ga. App. 391, 392 (523 SE2d 619) (1999) (citations and punctuation omitted); see also Hicks v. State, 287 Ga. App. 105, 106 (2) (650 SE2d 767) (2007) (“[U]nder the Fourth Amendment, police officers are prohibited from entering a person’s home or its curtilage without a warrant absent consent or a showing of exigent circumstances.” (citation, footnote and punctuation omitted)); Griffith v. State, 172 Ga. App. 255, 256 (1) (322 SE2d 921) (1984) (“Absent consent or exigent circumstances, a warrantless entry into a home to conduct a search ... is unreasonable under the Fourth Amendment.” (citations omitted)).

        Hollenback v. State, 289 Ga. App. 516, 519 (657 SE2d 884) (2008) (footnote and punctuation omitted).

        State v. McMichael, 276 Ga. App. 735, 739 (1) (624 SE2d 212) (2005) (citation and punctuation omitted).

       The State does not contend that the officers’ entry into the home was justified by exigent circumstances.

        See, e.g., Hunter v. State, 190 Ga. App. 52, 53 (378 SE2d 338) (1989).

        State v. Fulgham, 288 Ga. App. 746, 747 (655 SE2d 321) (2007) (“Where a law enforcement officer’s authority to conduct a search is based on consent, the reviewing court measures the scope of that consent by all of the surrounding circumstances.” (footnote omitted)).

        Id. (footnote and punctuation omitted).

        Compare Brooks v. State, 285 Ga. 424, 426 (677 SE2d 68) (2009) (“The uncontroverted testimony of the officer who conducted the search showed that [the defendant] was cooperative, even friendly toward him, and offered to assist him in locating the gun.” (footnote omitted)); Green v. State of Ga., 250 Ga. App. 440, 442 (2) (550 SE2d 736) (2001) (“The mere fact that [the defendant] was being lawfully detained when he gave . . . consent does not render the consent involuntary. . . . Rather, the idea that he would consent to a search of his [home] originated with [the defendant] himself when he told the officers that they could search his [home].” (footnotes omitted)).

        See Gray v. State, 296 Ga. App. 878, 880 (1) (676 SE2d 36) (2009) (“[Officers may handcuff a suspect as part of an investigatory detention without transforming the detention into a de facto arrest.” (citation omitted)); Montoya v. State, 232 Ga. App. 24, 26 (1) (b) (499 SE2d 680) (1998) (physical precedent only) (“An officer may take appropriate self-protective measures when he lawfully confronts an individual and reasonably believes him to be armed or otherwise dangerous to the officer or others.” (citation and punctuation omitted)). Cf. Jackson v. State, 236 Ga. App. 492, 495 (2) (512 SE2d 24) (1999) (holding in context of traffic stop that officer’s actions in handcuffing defendant for safety purposes were reasonable under the circumstances because “an officer conducting a stop remains particularly vulnerable” and “must make quick decisions as to how to protect himself and others from possible danger” (citation and punctuation omitted)).

        See Silverio v. State, 306 Ga. App. 438, 446 (3) (702 SE2d 717) (2010); Malay v. State, 293 Ga. App. 648, 651 (2) (667 SE2d 688) (2008); Green, 250 Ga. App. at 442 (2).

        See State v. McTaggart, 241 Ga. App. 852, 855 (528 SE2d 309) (2000) (“A police officer who observes contraband in plain view is entitled to seize it, so long as he is at a place where he is entitled to be, i.e., so long as he has not violated the defendant’s Fourth Amendment rights in the process of establishing his vantage point.” (citation and punctuation omitted)).

        See McNeil v. State, 248 Ga. App. 70, 71 (545 SE2d 130) (2001) (“The intrusiveness of the search is limited by the permission granted, and only that which is reasonably understood from the consent may be undertaken.” (footnote omitted)); see also State v. Diaz, 191 Ga. App. 830, 832 (2) (383 SE2d 195) (1989) (“[T]he scope of the consent clearly did not extend to a full-blown search of the interior and containers found therein.” (citation and punctuation omitted)).

        McTaggart, 241 Ga. App. at 854 (citation omitted).

        See State v. Jourdan, 264 Ga. App. 118, 120-21 (1) (589 SE2d 682) (2003) (“The State has the burden of proving the validity of a consensual search and must show the consent is given voluntarily. . . . Consent is not voluntary when it is the result of duress or coercion, express or implied.” (citation, footnotes and punctuation omitted)).

        See Walker, 299 Ga. App. at 791 (2) (“The intrusiveness of a consensual search — including the type, duration, and physical zone of the intrusion — is limited by the permission granted, and only that which is reasonably understood from the consent may be undertaken.” (footnote omitted)).

        Jourdan, 264 Ga. App. at 121 (1).

        Compare Silverio, 306 Ga. App. at 446 (3) (“The presence of several police officers does not require a finding of coercion, although it merits close judicial scrutiny.” (footnote omitted)); State v. Durrence, 295 Ga. App. 216, 218 (671 SE2d 261) (2008) (factoring in the presence of “a number of police officers at the scene” in affirming the grant of a motion to suppress). While it was still reasonable under the circumstances for Austin to be handcuffed, see supra note 19, this factor warrants additional scrutiny in the context of granting consent to search following the discovery of contraband inside Austin’s home. Cf. Gray, 296 Ga. App. at 879 (1) (“What is intended to be an investigatory detention can be transformed into a de facto arrest by the means of detention employed.” (citation and punctuation omitted)).

        See State v. Stephens, 289 Ga. App. 167, 169 (657 SE2d 18) (2008) (“[Alccount must be taken of the possibly vulnerable subjective state of the person who consents.” (footnote and punctuation omitted)).

        Compare Durrence, 295 Ga. App. at 218 (“Although there is no requirement that a defendant be informed of his right to refuse consent, this knowledge is one factor to be considered in assessing voluntariness.”).

        Johnson v. State, 297 Ga. App. 847, 849 (678 SE2d 539) (2009) (citation and punctuation omitted); see also Jourdan, 264 Ga. App. at 121 (1) (same).

       We note that the State makes no argument that the suppressed evidence should have been admitted under the doctrine of inevitable discovery.

        Tolliver v. State, 273 Ga. 785, 786 (546 SE2d 525) (2001) (citation omitted).

        Id. (citation omitted).

        Hardin v. State, 269 Ga. 1, 3 (2) (494 SE2d 647) (1998) (footnote omitted).

        See, e.g., Smith v. State, 281 Ga. 185, 187 (1) (640 SE2d 1) (2006) (noting that even if defendant had been handcuffed during questioning, “that would not necessarily demand a finding that he was under formal arrest or vitiate the consent to further questioning”).

        See supra Division 1.

        See State v. Brannan, 222 Ga. App. 372, 376 (2) (c) (474 SE2d 267) (1996) (admitting statements when, although officer suspected that the defendant’s actions constituted a crime, “she repeatedly told him he was not charged with any offense”).

        See Jackson v. State, 272 Ga. 191, 193-94 (3) (528 SE2d 232) (2000) (“A reasonable person in Jackson’s position, having just confessed to involvement in a crime in the presence of law enforcement officers would, from that time forward, perceive himself to be in custody, and expect that his future freedom of action would be significantly curtailed.” (citations omitted)).

        See id. at 194 (3) (“Miranda concerns only questioning initiated by law enforcement officers after a person has been taken into custody.” (citation omitted)).

        Price v. State, 269 Ga. 222, 225 (3) (498 SE2d 262) (1998); Kehinde v. State, 236 Ga. App. 400, 401 (512 SE2d 311) (1999).

       E.g., Silva v. State, 278 Ga. 506, 507 (604 SE2d 171) (2004), affirming State v. Silva, 263 Ga. App. 371 (587 SE2d 762) (2003) (whole court); Walker v. State, 299 Ga. App. 788 (683 SE2d 867) (2009); Wilson v. State, 293 Ga. App. 136 (666 SE2d 573) (2008); Snyder v. State, 284 Ga. App. 350, 351 (643 SE2d 861) (2007), reversed on other grounds, Snyder v. State, 283 Ga. 211 (657 SE2d 834) (2008).

       In Georgia, the “clearly erroneous” standard is identical to the “any evidence” standard. E.g., Hanson v. Kent, 263 Ga. 124 (2) (428 SE2d 785) (1993). Accord Turpin v. Todd, 271 Ga. 386, 390 (519 SE2d 678) (1999). The federal rule is different. A “mere scintilla” of evidence on one side will not suffice. See Brescher v. Von Stein, 904 F2d 572, 578 (11th Cir. 1990) (in evaluating motions for directed verdict and judgment notwithstanding the verdict, “[a] mere scintilla of evidence is insufficient to present a question for the jury”) (citation omitted).

        See Massengale v. State, 264 Ga. 51-52 (2) (a) (441 SE2d 238) (1994) (jury charge given hy trial court was fair and complete where it included language that “the jury may believe or disbelieve all or any part of the testimony of any witness”). See also Council of Superior Court Judges, Suggested Pattern Jury Instructions, Vol. I: Civil Cases (5th ed. 2007), § 00.050 (“You may believe or disbelieve all or any part of the testimony of any witness”); OCGA § 24-4-4 (facts jury may consider in determining where preponderance of evidence lies). “The rules stated in [OCGA § 24-4-4] and given in charge are applicable in determining the credibility of witnesses” in a criminal case. (Citation omitted.) Andrews v. State, 196 Ga. 84, 113 (13) (26 SE2d 263) (1943), overruled in part on other grounds, Frady v. State, 212 Ga. 84, 85-86 (2) (90 SE2d 664) (1955).

        Miller v. State, 288 Ga. 286, 289 (2) (702 SE2d 888) (2010); Chaffin v. Community Loan &c. Co., 67 Ga. App. 410 (20 SE2d 435) (1942); State v. Betsill, 144 Ga. App. 267, 268 (2) (240 SE2d 781) (1977).

        Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994). Much of my argument was made in a scholarly dissent by Judge Barnes in 2003. Silva, supra, 263 Ga. App. at 373 (Barnes, J., dissenting). Her argument has been greatly strengthened by the 2010 decision in Miller, supra.

       Supra at 58-60.

         Id. at 59 (Carley, J., dissenting).

       The rule that the uncontradicted testimony of unimpeached witnesses can not lawfully be arbitrarily disregarded does not mean that the jury are obliged to believe testimony which under the facts and circumstances disclosed they in fact discredit, but means that they are to consider the testimony of every witness who is sworn, and not arbitrarily disregard the testimony of any witness.
      (Citation and punctuation omitted.) Caldwell v. Caldwell, 59 Ga. App. 637, 643 (1 SE2d 764) (1939); accord Sellers v. State, 107 Ga. App. 516, 519 (130 SE2d 790) (1963) (whole court) (“There is a difference in arbitrarily or capriciously disregarding testimony and in disbelieving it upon a consideration of all circumstances arising from the evidence”) (emphasis in original), cited in State v. Hester, 268 Ga. App. 501, 505 (602 SE2d 271) (2004) (whole court) (affirming trial court’s grant of defendant’s motion to suppress). See also Tate, supra at 56 (3) (“trier of fact is not obligated to believe a witness even if the testimony is uncontradicted and may accept or reject any portion of the testimony”) (citation omitted); Pantone v. Pantone, 206 Ga. 305, 312 (57 SE2d 77) (1950). See generally Agnor’s Ga. Evidence (2010-2011) § 18:6.

       264 Ga. 319 (443 SE2d 474) (1994).

       Id. at 320 (1).

       261 Ga. 225 (404 SE2d 100) (1991), cited in Vansant, supra.

        Davis, supra at 226-227.

       Id. at 226, n. 1.

       The Harvard Law Review Assn., The Bluebook: A Uniform System of Citation (17th ed. 2000), Rule 1.2 (d), p. 24 (“See generally” indicates that the “[c]ited authority presents helpful background material related to the proposition” stated).

       See, e.g., In the Interest of E. G., 286 Ga. App. 137 (648 SE2d 699) (2007).

       The fact that a suspect is handcuffed does not demand a finding that he was under arrest, nor does it vitiate consent to further questioning. But the obvious corollary is that handcuffs do not prevent a contrary finding. Smith v. State, 281 Ga. 185, 187 (2) (640 SE2d 1) (2006).