author: DOYLE, Chief Judge.

text:
    A15A1620.
    STATE OF GEORGIA v. BROOKS.
    (777 S.E.2d 54)
   DOYLE, Chief Judge.

The State appeals from the trial court’s order granting John Henry Brooks’s motion to dismiss the State’s forfeiture proceeding based on untimely filing of the proceeding under former OCGA § 16-13-49. The State contends that the trial court erred by granting the motion to dismiss because under former OCGA § 16-13-49 (n), it was unnecessary for the State to commence forfeiture proceedings within 60 days of the seizure. For the reasons that follow, we vacate and remand for further proceedings.

The record shows that on February 4, 2014, the Chatham - Savannah Counter Narcotics Team arrested Brooks for possession of marijuana and seized from him $4,986 in United States currency. On June 26, 2014, the State proceeded under former OCGA § 16-13-49 (n) to initiate forfeiture proceedings by posting a notice of seizure in the Chatham County courthouse, publishing a notice of seizure in the Savannah Morning News, mailing a certified letter to Brooks, and personally serving Brooks on June 30, 2014.

On July 22, 2014, Brooks’s attorney sent a letter to the State claiming that because it failed to commence the nonjudicial forfeiture within the statutorily required 60 days of seizure, then the property must be released to him. On August 20,2014, the State filed a “Motion to Strike Claim and Motion for D efault Order of Forfeiture and Distribution of Property,” claiming that Brooks’s letter failed to comply with the requirements of filing a claim under former OCGA § 16-13-49 (n) (4), and therefore, it was ineffective to trigger the requirements of former OCGA § 16-13-49 (n) (5) pursuant to which the State must file a complaint for forfeiture within 30 days of receipt of such a claim.

In response to the State’s Motion to Strike, Brooks filed a “Motion to Dismiss/Motion for Return of Property.” Brooks again argued that because the State failed to commence the forfeiture proceeding within 60 days of the seizure as required under former OCGA § 16-13-49 (h) (2), the proceeding was untimely and the property must be returned to him.

“Our analysis is governed by the laws of statutory construction. The interpretation of a statute is a question of law, which we review de novo on appeal.”

Pursuant to former OCGA § 16-13-49 (h) (2) “[w]ithin 60 days from the date of seizure, a complaint for forfeiture shall be initiated as provided for in subsection (n), (o), or (p) of this Code section.” And under former OCGA § 16-13-49 (n),

[i]fthe estimated value ofpersonal property seizedis $25,000.00 or less, the district attorney may elect to proceed under the provisions of this subsection in the following manner: (1) [n]otice of the seizure of such property shall be posted in a prominent location in the courthouse of the county in which the property was seized. Such notice shall include a description of the property, the date and place of seizure, the conduct giving rise to forfeiture, a statement that the owner of such property has 30 days within which a claim must be filed, and the violation of law alleged; (2) [a] copy of the notice, which shall include a statement that the owner of such property has 30 days within which a claim must be filed, shall be served upon an owner, interest holder, or person in possession of the property at the time of seizure as provided in subsection (i) of this Code section and shall be published for at least three successive weeks in a newspaper of general circulation in the county where the seizure was made; (3) [t]he owner or interest holder may file a claim within 30 days after the second publication of the notice of forfeiture. . . .

Former OCGA § 16-13-49 (n) (5) explains that “[i]f a claim is filed, the district attorney shall file a complaint for forfeiture as provided in subsection (o) or (p) of this Code section within 30 days of the actual receipt of the claim. . .

Despite the State’s argument that it was not required to file its forfeiture proceeding within 60 days, it was required to do so under the plain language of former OCGA § 16-13-49 (h) (2). Nevertheless, even when a former OCGA § 16-13-49 (n) forfeiture proceeding is initiated beyond the 60-day period, this Court has explained that the appropriate remedy is not dismissal of the State’s complaint for forfeiture. In Johnson v. State of Ga., this Court explained that even when the State admits to untimely initiation of a forfeiture,

[former] OCGA § 16-13-49 (h) (3) provides the sole remedy: If the [S]tate fails to initiate forfeiture proceedings against property seized for forfeiture by notice of pending forfeiture within the time limits specified in paragraphs (1) and (2) of this subsection, the property must be released on the request of an owner or interest holder, pending further proceedings pursuant to this Code section, unless the property is being held as evidence. Thus, [Brooks]’s sole remedy was to request and obtain the property but only pending further forfeiture proceedings. [Brooks] is not entitled to have the forfeiture proceedings dismissed.

Decided September 3, 2015.

Meg E. Heap, District Attorney, Brian M. Casey, Lyndsey H. Rudder, Assistant District Attorneys, for appellant.

Gregory N. Crawford, for appellee.

Accordingly, we vacate the trial court’s order granting Brooks’s motion to dismiss, and we remand this case for further proceedings pursuant to former OCGA § 16-13-49.

Judgment vacated and case remanded.

Phipps, P. J., and Boggs, J., concur.

       (Punctuation omitted.) Weaver v. State of Ga., 299 Ga. App. 718, 721 (2) (683 SE2d 361) (2009).

       See Johnson v. State of Ga., 266 Ga. App. 171, 172-173 (596 SE2d 693) (2004).

       (Punctuation omitted; emphasis in original and supplied.) Id. See also Turner v. State of Ga., 213 Ga. App. 309, 310-311 (4) (444 SE2d 372) (1994) (explaining the impact of 1991 amendment to the forfeiture statute). Compare with Williams v. State of Ga., 302 Ga. App. 617 (691 SE2d 385) (2010) (failure to hold a hearing within 60-day period following the State’s filing of a forfeiture complaint results in mandatory dismissal of the complaint absent good cause).


source: Caselaw Access Project

author: McMillian, Judge.

license: Public Domain

text:
    A15A0781.
    HUTCHINSON v. WHALEY et al.
    (777 S.E.2d 251)
   McMillian, Judge.

Carmen M. Hutchinson appeals, pro se, the trial court’s order dismissing her claims of “public records right violation,” “denying right to due process/Breached duties as investigators,” and “deliberate indifference” against Andrew Whaley and W. L. Fountain, detectives with the Gwinnett County Police Department (collectively “Defendants”). In two related enumerations of error, Hutchinson asserts that the trial court erred in granting Defendants’ motion for lack of subject matter jurisdiction after finding that Defendants are entitled to sovereign and/or official immunity. Having carefully considered her arguments, we find no error and affirm.

The record shows that on February 9, 2012, Hutchinson contacted the Gwinnett Police Department and reported that her 16-year-old daughter, Chelsea, “left on foot.” This was not the first such call made by Hutchinson. The multiple 911-call history details produced in response to Hutchinson’s open records request show that Chelsea had a troubled history. On January 18, 2012, Hutchinson reported her daughter as missing when she did not return home from school. That case was closed on the same day. Then, on January 30, 2012, police received multiple reports of Chelsea’s public indecency, and Hutchinson reported that Chelsea had suffered from a psychotic break and was staying at Peachford Hospital following a suicide attempt.

A few days later, Hutchinson reported that Chelsea claimed to have been assaulted by a man who attempted to rape and drown her. However, when the detective assigned to the case contacted Hutchinson, she claimed that her daughter had changed her story and no one had ever attempted to rape her. The detective followed up with Hutchinson on February 9, 2012 and made an appointment for her and Chelsea to come in the next day to get a statement from Chelsea. However, it was later that day that Hutchinson reported her daughter left home.

Although Hutchinson claims that she reported her daughter as a missing person, the call was documented as a reported “runaway.” The call history also indicates that Chelsea had recently been released from Peachford Hospital but “was not diagnosed w/ a mental disease.” The next day, Hutchinson requested that officers search the lake near her home, and the call report indicates that officers “S22ed the lake with AIR1 C4 no contact. Two males fishing stated that they saw a girl matching the 56R at 1830 walking from the woods tow[a]rds SR124.”

And according to the incident report prepared by Detective Fountain, who was assigned to the case, Chelsea had a “history of running,” and while being treated at Peachford, she tested positive for marijuana and amphetamines. Detective Fountain issued a BOLO (Be on the Look Out) and spoke with officials at Chelsea’s school, who told him she had not attended school in over a month. He also reviewed the contents of her cell phone and spoke with several of her friends identified in her contacts. Everyone he spoke to stated that several days before she ran away, Chelsea “began to act strange” and they “suspected she was hanging with people that deal and use drugs.” Detective Fountain attempted to contact the father, but the address provided to him was not valid. He also reviewed Chelsea’s Facebook page and found what he believed to be messages from her on February 22, 2012. He explained to Hutchinson that her daughter must be okay if she was responding on Facebook. After finding no other information regarding Chelsea’s whereabouts after she turned 17 years old, he suspended the case.

On August 4, 2012, police received a call regarding skeletal remains found in a nearby creek bed. A press release and statewide notification was issued to determine the identity of the remains. Detective Whaley, who was assigned to the investigation, fielded several calls regarding possible matches before receiving a call from a man who stated that his niece, Chelsea, had been missing for six months. His description of her clothing and physical appearance indicated a likely match. Although Detective Whaley obtained dental records from the family, the medical examiner was unable to make a positive match. Detective Whaley then met with Hutchinson on August 14, 2012 to obtain a DNA sample, which was sent for testing. The remains were then confirmed to be Chelsea’s, and a death certificate was completed by the medical examiner on December 31, 2012.

On January 17, 2014, Hutchinson filed her pro se complaint against Defendants. Following discovery, Defendants filed a motion to dismiss on grounds of sovereign and official immunity. Plaintiff filed an opposition to the motion, attaching various discovery documents, including 911-call histories and police incident reports. On October 6, 2014, the trial court issued an order granting Defendants’ motion, finding that Hutchinson’s claims against Defendants in their official capacities are essentially claims against Gwinnett County, and such claims are barred by sovereign immunity. And although it is not clear whether Hutchinson intended to also bring claims against Defendants in their individual capacities, the trial court further found that Hutchinson’s claims were only for ordinary negligence and that she had made no allegation of actual malice or actual intent to injure in the performance of their official functions. Therefore, her claims were also barred by the doctrine of official immunity. This appeal followed.

1. Hutchinson essentially argues that Defendants failed to adequately investigate her daughter’s case, including by failing to interview neighbors and witnesses or to canvas surrounding areas outside their residence and by failing to file a missing child report. The trial court correctly found that sovereign immunity extends to counties and that such immunity protects county employees who are sued in their official capacities. See, e.g., Cameron v. Lang, 274 Ga. 122, 126 (3) (549 SE2d 341) (2001) (sovereign immunity applies to public employees sued in their official capacities because these “are in reality suits against the state”) (citation and punctuation omitted). Moreover, Hutchinson has not asserted that the immunity has been waived by an act of the General Assembly or by the Constitution itself. See Ga. Dept. of Corrections v. Couch, 295 Ga. 469, 472 (2) (759 SE2d 804) (2014).

With respect to Hutchinson’s presumed claims against Defendants in their individual capacities, the question of whether they are protected under the doctrine of official immunity turns on whether the acts complained of were ministerial or discretionary when, as in this case, there is no evidence that Defendants acted with malice. See Grammens v. Dollar, 287 Ga. 618, 619 (697 SE2d 775) (2010) (where there is no evidence defendant acted or failed to act with malice, wilfulness, or an intent to injure, the question is whether the act was ministerial or discretionary). Georgia courts have repeatedly explained:

A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.

(Citation omitted.) Id. And we have held that a police officer’s investigative decisions are discretionary. See, e.g., Watkins v. Latif, 323 Ga. App. 306, 311 (744 SE2d 860) (2013); Marshall v. Browning, 310 Ga. App. 64, 67 (712 SE2d 71) (2011) (police detective was acting within her discretionary authority in investigating the case).

Although Hutchinson may understandably have wished for Defendants to have done more in their investigation, “[tjhis case falls well within the underlying rationale for official immunity, which is to preserve the public employee’s independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.” (Citation and punctuation omitted.) Marshall, 310 Ga. App. at 70 (although defendant “was presented with a difficult investigation, and a different investigator may have made choices more favorable to [plaintiff,] . . . the evidence shows that [defendant] acted without actual malice, and she is therefore not subject to personal liability on [plaintiff]’s claim”).

2. Hutchinson also asserts on appeal (although not separately enumerated) that she has a claim under 42 USC § 1983 and that her rights to due process and equal protection were violated. However, she fails to support these assertions with any cogent argument or citation of authority; therefore, they are deemed abandoned. See Levine v. SunTrust Robinson Humphrey, 321 Ga. App. 268, 275 (2) (b), n. 25 (740 SE2d 672) (2013). Moreover, this Court has held that while a police officer’s investigation may be less than perfect, “inadvertent errors, honest mistakes, agency confusion, even negligence in the performance of official duties, do not warrant redress under 42 USC § 1983.” (Citation and punctuation omitted.) Stephens v. Zimmerman, 333 Ga. App. 586, 594 (2) (774 SE2d 811) (2015) (“police officers ‘are not required to perform error-free investigations’ ”).

Decided September 8, 2015

Carmen M. Hutchinson, pro se.

Duane D. Pritchett, TuwandaRush Williams, M. Van Stephens II, for appellees.

Accordingly, the trial court did not err in granting summary judgment to Defendants.

Judgment affirmed.

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

       Hutchinson eventually conceded at the trial level that there is no private cause of action for violations of public records under OCGA § 45-11-1 (a).

       Although the trial court’s order states that it is granting Defendants’ motion to dismiss, it is clear from the order that the trial court considered evidence outside of the pleadings, including evidence submitted by Hutchinson in her opposition to the motion. Accordingly, the trial court in effect converted the motion to dismiss into a motion for summary judgment. See, e.g., S-D RIRA, LLC v. Outback Property Owners’ Assn., 330 Ga. App. 442, 446, n. 9 (765 SE2d 498) (2014). Hutchinson does not object to this conversion on appeal.

       Chelsea was about to turn 17 years old on February 20, 2012.

       The medical examiner was unable to determine the cause of death.

       Hutchinson points to OCGA § 35-1-8 (a) (regarding the acquisition and preservation of information to assist in identifying deceased individuals) and OCGA § 35-3-83 (regarding missing child reports) as evidence that Defendants violated their duties to investigate. However, both statutes are directed to law enforcement agencies, not individual officers. And as noted above, county agencies are protected by sovereign immunity.


text:
    A15A0783.
    LEOPOLD v. THE STATE.
    (777 S.E.2d 254)
   McMillian, Judge.

This is the third appearance of this case before this Court. In Leopold v. State, 324 Ga. App. 550, 557 (1) (751 SE2d 184) (2013) (“Leopold I”), we rejected Neil Leopold’s claims of ineffective assistance of trial counsel following his 2009 convictions for possession of marijuana and possession of marijuana with intent to distribute. However, we remanded the case to the trial court for entry of a more detailed order with respect to his claim that he was denied his constitutional right to a speedy trial. Id. at 557 (2).

On remand, the trial court again found that Leopold “failed to meet his burden in showing his constitutional right to a speedy trial has been violated.” And in an unpublished opinion issued October 8, 2014, this Court again remanded this case with direction to enter the specific findings of fact and conclusions of law required by Barker v. Wingo, 407 U.S. 514 (92 SCt 2182, 33 LE2d 101) (1972). Leopold v. State, 329 Ga. App. XXV (October 8, 2014) (unpublished) (“Leopold II”). Thereafter, the trial court entered an order in which it again found that Leopold was not denied his constitutional right to a speedy trial. This appeal followed. In his sole enumeration of error, Leopold asserts that the three-year delay between his arrest and trial violated his Sixth Amendment right to a speedy trial, compelling reversal of his conviction.

The record shows that Leopold was arrested on September 13, 2006 and indicted on January 5, 2007 for one count of possession of marijuana with intent to distribute and one count of possession of marijuana. The charges stemmed from Leopold’s involvement in receiving a package containing more than four pounds of marijuana. In September 2006, the East Metro Drug Enforcement Task Force learned that a package traveling to Georgia from Arizona might contain marijuana. After confirming the presence of marijuana, the police organized a controlled delivery of the package, which was addressed to “Gary Williams” at a Covington, Georgia address — the home of Leopold’s cousin.

A police recording of the delivery shows Leopold sitting in a white sedan parked in the driveway of the delivery address before getting out and pacing around the driveway and looking toward the street. He then walked to the end of the driveway to meet a UPS investigator, who was dressed as a delivery driver. The investigator told Leopold he had a package for Gary Williams and asked if he lived there. Leopold stated that it “was the correct place and... that [Gary Williams] was just down the street and was going to be right back.”

The investigator decided to leave the package beside the front door. Leopold stayed near the package without touching it until the investigator drove away. Leopold then picked up the package and placed it behind another car parked beside the white sedan. Meanwhile, a black sedan pulled up and parked on the street nearby. Leopold walked over to the black sedan and spoke to the front passenger. Two men, Junior Blackford and Raymond Cornelius, got out of the black sedan. Leopold retrieved the package and placed it in the back seat of the white sedan.

After talking with Blackford, Leopold opened the trunk of the white sedan and placed the package in it. Cornelius then walked over, and the three men had a discussion while arranging the contents of the trunk. After the trunk was closed and Leopold got into.the driver’s seat with keys in his hand, police officers moved in and arrested him. Blackford, who had been outside the car looking around, fled but was captured. Leopold gave a statement to police in which he claimed that he did not know what was in the package and that Blackford had paid him to let him have a package delivered to his address. Leopold claimed that he “felt funny” about it and “questioned Blackford about it” but that Blackford told him not to worry.

After both Leopold and Blackford were indicted in January 2007, Blackford posted bond and fled the state. When Blackford did not appear for a scheduled hearing on March 28, 2007, a bench warrant was issued for his arrest. Leopold posted bond on June 1, 2007, and on June 7, 2007, announced he was ready for trial. Thereafter, the State filed a motion to join the trial of Leopold and Blackford without opposition. The trial court granted the motion and stated that the case would not proceed to trial until Blackford was located.

In April 2009, Blackford was located in New York after he was arrested on unrelated charges. Once he was returned to Georgia, Blackford gave a formal statement, disavowing any involvement in the delivery of the package and expressing concern that he could be deported due to an immigration hold in New York. Based on bis representation, the State moved to grant him immunity in exchange for his testimony against Leopold, and the trial court granted the motion.

Leopold’s trial began September 28, 2009, just over three years after his arrest. Although the State maintained that Blackford was still a charged co-defendant and would face trial, Blackford was one of the State’s primary witnesses. He testified that he was from Jamaica, and although he was not a United States citizen, he had been living in New York since 1979. He was visiting Georgia and staying in a hotel at the time of his arrest. He denied asking Leopold to use his address for delivery of a package and claimed that he could receive mail at his hotel. He further testified that he had no knowledge of the package until he saw Leopold with it at the house when he returned from the store to buy beer. Cornelius, also called as a State witness, corroborated Leopold’s version of the events leading up to his arrest. Leopold was found guilty on both charges and sentenced to ten years, eight to serve. Nineteen days after the conclusion of trial, the State moved to dead-docket Blackford’s charges.

1. Both the Sixth Amendment of the United States Constitution and the Georgia Constitution provide that criminal defendants shall have the right to a speedy trial. See Brewington v. State, 288 Ga. 520, 520 (1) (705 SE2d 660) (2011). When analyzing a constitutional speedy trial claim, this Court must first determine “whether the interval from the accused’s arrest, indictment, or other formal accusation to the trial is sufficiently long to be considered ‘presumptively prejudicial.’ [Cits.] If not, the speedy trial claim fails at the threshold.” Ruffin v. State, 284 Ga. 52, 55 (2) (663 SE2d 189) (2008). If, however, the delay is presumptively prejudicial, the defendant’s claim is then analyzed under the rubric of Barker, which established a four-part balancing test to consider:

(1) the length of the delay; (2) reasons for the delay; (3) defendant’s assertion of the right to speedy trial; and (4) the prejudice to the defendant. Standing alone, none of these factors are a necessary, or sufficient condition to a finding of deprivation of the right to a speedy trial, but rather should be considered as part of a balancing test.

(Citations and punctuation omitted.) Bowling v. State, 285 Ga. 43, 44 (1) (673 SE2d 194) (2009).

“These four inquiries have no talismanic qualities and must be considered together with such other circumstances as may be relevant in light of the animating principles of the speedy trial guarantee.” (Citation and punctuation omitted.) Sweatman v. State, 287 Ga. 872, 873 (2) (700 SE2d 579) (2010). Thus, “[n]o one element is either necessary or sufficient to conclude that the right to a speedy trial has been violated.” Id. Because this analysis “necessarily compels courts to approach speedy trial cases on an ad hoc basis,” it is “a task better suited to trial courts than appellate courts,” and thus, the trial court’s resolution of a speedy trial motion is reviewed only for abuse of discretion. (Citation and punctuation omitted.) Id. at 873-874 (2).

As the appellate court, we must accept the factual findings of the trial court unless they are clearly erroneous, and we must accept the ultimate conclusion of the trial court unless it amounts to an abuse of discretion, even though we might have reached a different conclusion were the issue committed to our discretion.

(Citation omitted.) State v. Gay, 321 Ga. App. 92, 93 (1) (741 SE2d 217) (2013).

Here, the State does not dispute that the three-year delay was presumptively prejudicial. See State v. Porter, 288 Ga. 524, 526 (2) (b) (705 SE2d 636) (2011) (generally, a delay of one year is presumptively prejudicial). We therefore move to the second stage of the analysis.

2. (a) Length of Delay. “The constitutional right to a speedy trial attaches on the date of the arrest or when formal charges are initiated, whichever first occurs.” (Citation and punctuation omitted.) Fallen v. State, 289 Ga. 247, 248 (1) (710 SE2d 559) (2011). If the delay passes the threshold test of presumptive prejudice, the length of delay is considered a second time by factoring it into the Barker analysis. See id. “The extent to which delay can be seen as uncommonly long depends to some extent on the complexity and seriousness of the charges in that case.” (Citation and punctuation omitted.) Thomas v. State, 331 Ga. App. 641, 661 (8) (b) (i) (771 SE2d 255) (2015).

Here, the trial court correctly found that the length of delay ought to be weighed against the State, rather than Leopold because of the uncommon length of time between arrest and jury trial. See Ward v. State, 311 Ga. App. 425, 428 (2) (715 SE2d 818) (2011) (34-month delay in an aggravated assault, robbery, and kidnapping case is uncommonly long and thus weighed against the State).

(b) Reason for the Delay. We next examine the reason for the delay and whether the delay is attributable to the defendant or the State. Here, the State asserts that the delay was due in part to Leopold and his failure to object to any of the trial continuances. The State also maintains that the delay was the result of Blackford’s absence and the importance of the testimony the State needed to elicit from him at trial. The trial court found that the delay was, at worst, negligence on behalf of the State rather than bad faith, and thus “relatively benign,” but still weighed this factor negatively against the State. Leopold argues, on the other hand, that the trial court should have weighed this factor more heavily against the State because the State intentionally sought to delay the trial.

In assigning weight to this factor, our Supreme Court has noted that a delay caused by “the absence of any deliberate attempt on the part of the State to delay the trial in order to hamper the defense ... is relatively benign but definitely negative.” (Citation and punctuation omitted.) Brannen v. State, 274 Ga. 454, 456 (553 SE2d 813) (2001). See also Barker, 407 U.S. at 531 (“A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. ... [A] valid reason, such as a missing witness, should serve to justify appropriate delay.”); Nelloms v. State, 274 Ga. 179, 180 (549 SE2d 381) (2001) (noting delay caused by missing witness would justify State’s failure to bring defendant to trial). Based on the record before us, we find no abuse of discretion in the trial court’s assignment of weight to this factor.

(c) Defendant’s Timely Assertion of the Right. “Although the State bears the burden to ensure that an accused is brought to trial promptly, the accused bears some responsibility to invoke the speedy trial right.” (Citation and punctuation omitted.) State v. Alexander, 295 Ga. 154, 158 (2) (c) (758 SE2d 289) (2014). However, a defendant does not forever waive his right to a speedy trial by failing to assert the right. Ruffin, 284 Ga. at 62-63. Rather, our Supreme Court has explained that “because delay often works to the defendant’s advantage, the failure of the accused to assert his right in due course generally is accorded strong evidentiary weight.” (Citations and punctuation omitted.) Alexander, 295 Ga. at 158 (2) (c).

Here, the trial court found this factor ought to be weighed heavily against Leopold because he failed to assert the right at any point from his arrest through the conclusion of his trial on October 2, 2009. Instead, Leopold waited to assert his right to a speedy trial until his amended motion for new trial, nearly two years after the trial ended. Leopold argues that because there were mitigating circumstances, i.e., ineffective assistance of trial counsel, the trial court should have instead weighed this factor either neutrally or against the State. However, the actions or omissions he complains of were those of trial counsel appointed sometime in July 2009, only two months before trial. Given these circumstances, we do not find that the weight assigned by the trial court was an abuse of discretion. See Alexander, 295 Ga. at 159 (“the weight to be attributed to this factor may be mitigated in some cases, and whether the circumstances of a particular case warrant any mitigation is a question committed to the sound discretion of the trial court”). See also Williams v. State, 279 Ga. 106, 109 (1) (c) (610 SE2d 32) (2005) (even if defendant timely asserted demand for speedy trial, his later withdrawal of the demand and subsequent failure to press for trial should be weighed against him).

(d) Prejudice. The United States Supreme Court has explained that the prejudice factor “should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect,” which are “to prevent oppressive pretrial incarceration,” “to minimize anxiety and concern of the accused,” and “to limit the possibility that the defense will be impaired.” Barker, 407 U.S. at 532. Of these three considerations, “the last has been deemed the most serious because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” (Citation and punctuation omitted.) Johnson v. State, 313 Ga. App. 895, 904 (2) (d) (723 SE2d 100) (2012).

Here, the trial court noted that Leopold did not testify at the motion for new trial hearing and that his counsel presented no evidence nor argued any prejudice with regards to oppressive pretrial incarceration or anxiety and concern from the time he was arrested until he posted bond in February 2007. We agree that Leopold has not shown prejudice from his initial pretrial incarceration nor for the period of time he was released on bond. See Davis v. State, 301 Ga. App. 155, 159 (4) (a) (687 SE2d 180) (2009) (where defendant was released on bond, he cannot show prejudice from pretrial incarceration). And with respect to the interest in minimizing the defendant’s anxiety and concern, “those issues are always present to some extent, and thus absent some unusual showing are not likely to be determinative in defendant’s favor.” (Citation and punctuation omitted.) Ward, 311 Ga. App. at 430 (5).

However, we disagree with the trial court’s determination that there was no evidence of prejudice for the period of time that Leopold subsequently served in jail after his release. The record shows that Leopold was later arrested for an unrelated probation violation, and as a result, was held in the DeKalb County jail from December 18, 2008 until the start of his trial. Leopold argues that the delay in this case caused him to lose the possibility of serving this sentence concurrently with the nine months he served on his sentence for the probation violation. This Court has previously recognized that with respect to a defendant incarcerated on other charges, a delay in bringing such a person to trial may be prejudicial because the defendant may forego the opportunity to receive a sentence that is at least partially concurrent with the one he is serving. Johnson, 313 Ga. App. at 904 (2) (d) (citing Smith v. Hooey, 393 U.S. 374, 378 (89 SCt 575, 21 LE2d 607) (1969)). Thus, the trial court erred in failing to consider this factor. However, our Supreme Court has consistently held that “when a defendant is already incarcerated for unrelated offenses, there is minimal possibility of oppressive pretrial incarceration.” See Williams, 279 Ga. at 109 (1) (d) (citing cases).

And with respect to the impairment of his defense, Leopold argues that had Blackford not testified at trial, the testimony of two defense witnesses as to allegedly exculpatory statements made by Blackford would have been uncontroverted. However, Leopold provides no citation to authority to support his argument that the State’s inability to locate and present testimony from Blackford in order to make its case is the type of prejudice the Barker factors are designed to address, and we find none. The record confirms that Leopold was able to present evidence in support of his defense, he does not argue that the delay prevented him from obtaining any evidence or testimony, and his only contention is that the delay strengthened the State’s case, to his detriment. See Robinson v. State, 287 Ga. 265, 269 (1) (d) (695 SE2d 201) (2010) (prejudice factor does not weigh in the defendants’ favor where “no witnesses have died or disappeared; there is no evidence that witnesses have lost their memories; and the defense strategy remained unchanged”). Cf. Johnson, 313 Ga. App. at 905 (2) (d) (iii) (if a witness that could supply material evidence for the defense dies or disappears during the delay, prejudice may be established). Moreover, the State’s need to locate a missing witness whose testimony is required for trial is one of the specific reasons recognized by the United States Supreme Court that may justify a delayed trial. See Barker, 407 U.S. at 531 (“[A] valid reason, such as a missing witness, should serve to justify appropriate delay.”).

(e) Balancing the Factors. Although our deference to the trial court’s denial of Leopold’s motion is somewhat diminished by the trial court’s misapplication of the law in failing to consider the prejudice caused by Leopold’s loss of the opportunity to serve partial concurrent sentences, and assuming without deciding that such error is significant, we nonetheless conclude based on the record before us that “had the trial court used the correct facts and legal analysis, it would have had no discretion to reach a different judgment.” State v. Pickett, 288 Ga. 674, 679 (2) (d) (706 SE2d 561) (2011). See also Brown v. State, 287 Ga. 892, 896 (1) (700 SE2d 407) (2010) (no abuse of discretion in denying speedy trial motion after balancing State’s delay in trying case against defendant’s failure to timely assert right to speedy trial and failure to show impairment of defense as a result of delay). As explained in Williams, there is a minimal possibility of prejudice resulting from incarceration for unrelated offenses. Williams, 279 Ga. at 110 (1) (d). Thus, although the State may have been negligent in failing to bring Leopold to trial in a timely fashion and the trial court failed to consider the potential prejudice stemming from the loss of the opportunity to have partial concurrent sentences, those relatively benign considerations are outweighed by the fact that Leopold waited until two years after his trial to assert his right to a speedy trial and he has not shown that his defense was impaired by the delay. See Christian v. State, 281 Ga. 474, 478 (2) (640 SE2d 21) (2007); Ward, 311 Ga. App. at 431 (5). Accordingly, we find no abuse of discretion and affirm the trial court’s denial of the speedy trial motion.

Decided September 8, 2015

Tyler R. Conklin, James C. Bonner, Jr., for appellant.

Layla H. Zon, District Attorney, Christopher D. Sperry, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       We will briefly summarize the facts of this case in order to provide context for our analysis. The facts are more fully set forth at Leopold 1, 324 Ga. App. 550.

       Although he was initially arrested, Cornelius was not charged with an offense for his conduct.

       It is undisputed that Leopold remained in Georgia and attended several pretrial hearings.

       Blackford testified that he ran from the police because he “was drinking and smoking and knew he had a little thing with the immigration [and] just got nervous and ran.” (Punctuation omitted.) Leopold I, 324 Ga. App. at 553.

       The trial court noted that part of defense counsel’s strategy — as testified to at the motion for new trial hearing — was to permit the trial’s delay because the longer it took for Blackford to be found, the more likely it became that the State would dismiss the case.

       The record shows that Leopold filed a statutory demand for speedy trial pursuant to OCGA § 17-7-170 on February 12, 2007. However, on July 3, 2007, he withdrew the demand after he was released on bond.

       The trial court disagreed, finding that under relevant law at the time of trial, the testimony of Leopold’s friend and ex-girlfriend would have been inadmissible hearsay absent a showing of necessity. We express no opinion as to this ruling.


author: Boggs, Judge.

text:
    A15A1004.
    THE STATE v. HILL.
    (777 S.E.2d 265)
   Boggs, Judge.

The State appeals from the trial court’s order granting Thomas Landon Hill’s plea in bar on the ground of procedural double j eopardy. Because the offenses in question were not known to the proper prosecuting officer, the trial court erred in granting Hill’s plea in bar, and we therefore reverse.

On appeal from the grant or denial of a double jeopardy plea in bar, we review the trial court’s oral and written rulings as a whole to determine whether the trial court’s findings support its conclusion. Where the evidence is uncontroverted and witness credibility is not an issue, our review of the trial court’s application of the law to the undisputed facts is de novo.

(Citation and punctuation omitted.) State v. Pruiett, 324 Ga. App. 789, 790 (751 SE2d 579) (2013).

The relevant facts are not in dispute. On February 2, 2013, Hill was involved in an automobile collision with injuries in Savannah. He received uniform traffic citations for DUI, following too closely, and an expired tag. The Chatham County Recorder’s Court docket reflects that Hill’s counsel entered an appearance in that court on the DUI and following too closely charges on or before April 25, 2013.

The senior deputy clerk of the recorder’s court testified that the DUI charges and the charge of following too closely initially were assigned a case report number or “CRN” in the recorder’s court. For some unknown reason, however, recorder’s court personnel failed to assign any CRN to the expired tag charge. As a result, the expired tag charge became separated from the other charges “at the beginning when they got entered in the system.” Because of the failure to assign a CRN to the expired tag charge, it was not “flagged” or identified as a related charge to the other charges. Instead, it simply was placed on the “regular traffic docket.”

On October 25, 2013, the DUI and following too closely charges were bound over to Chatham County State Court. On December 26, 2013, Hill was charged by accusation in state court with two counts of driving under the influence of drugs, following too closely, and operating a vehicle with an expired tag. But, due to the clerical error, the expired tag charge also remained pending in recorder’s court. The deputy clerk testified that cases usually were transferred from recorder’s court by a district attorney, who would “come into court and make an announcement in court that the case was either accused or indicted.” She believed that, with respect to the DUI and following too closely charges, “an announcement was made in court to send them to State Court.” However, she testified that nothing in the recorder’s court files indicated that the expired tag charge was accused or indicted by the district attorney’s office or that the district attorney did so by announcement in open court.

On March 5, 2014, Hill’s counsel entered an appearance in state court, and Hill entered a plea of “not guilty” and demanded a jury trial. On April 28, 2014, trial in state court was set for July 14, 2014. Meanwhile, on June 17, 2014, Hill appeared in recorder’s court, purged himself of contempt, and entered a guilty plea to the expired tag charge. The recorder’s court deputy clerk testified that no prosecutor or assistant district attorney handles cases on the traffic docket in recorder’s court, and that the district attorneys do not receive notice of cases on the traffic docket.

On July 10, 2014, Hill requested a continuance in state court because “[t]he defense anticipates filing a motion based on new circumstances.” The State had no objection, and trial was reset for August 11, 2014. On August 6, 2014, Hill filed a plea in bar in state court, contending that his guilty plea in recorder’s court caused procedural double jeopardy to attach to the charges in state court under OCGA § 16-1-7 (b). The trial court agreed and dismissed the pending charges, holding on the basis of State v. Smith, 259 Ga. 352, 353 (381 SE2d 37) (1989), that the district attorney had actual knowledge of the expired tag charge because it was included in the accusation, and that the State therefore had the obligation to dismiss the charge in recorder’s court. This appeal followed.

Under OCGA § 16-1-7 (b), if several crimes [1] arising from the same conduct are [2] known to the proper prosecuting officer at the time of commencing the prosecution and are [3] within the jurisdiction of a single court, they must be prosecuted in a single prosecution. A second prosecution is barred under OCGA § 16-1-8 (b) (1) if it is for crimes which should have been brought in the first prosecution under OCGA § 16-1-7 (b). In order for this procedural aspect of double jeopardy to prohibit a prosecution, all three prongs must be satisfied.

(Citations, punctuation and footnotes omitted.) Nicely v. State, 305 Ga. App. 387, 388 (1) (699 SE2d 774) (2010). The State acknowledges that all charges against Hill derive from the same conduct and are within the jurisdiction of a single court. We therefore consider only the second prong of the test, knowledge of the prosecuting officer.

Adefendant who asserts a plea in bar pursuant to OCGA §§ 16-1-7 and 16-1-8 bears the burden of affirmatively showing that the prosecuting attorney for the State who handled the first prosecution had actual knowledge of the facts supporting the charge allegedly subject to a plea-in bar.

(Citations, punctuation and footnote omitted; emphasis supplied.) Nicely, supra, 305 Ga. App. at 388 (1). And “[t]he vital question for resolying a plea in bar under OCGA §§ 16-1-7 and 16-1-8 pertains to the prosecuting officer’s knowledge of all the charges on the date when the defendant’s guilty plea was accepted to fewer than all the crimes arising from his conduct.” (Citations and punctuation omitted.) Id. at n. 5. See also Sellers v. State, 332 Ga. App. 14, 17 (1) (770 SE2d 31) (2015) (court looks to knowledge of prosecuting officer who takes initial guilty plea, because defendant relies on that plea to bar later prosecution).

Here, the trial court erred in looking not to the first proceeding, but to the later prosecution in state court, to determine the knowledge of the prosecuting officer. In Dean v. State, 309 Ga. App. 459 (711 SE2d 42) (2011), we rejected a similar approach. In Dean, the defendant committed a series of traffic offenses across two jurisdictions. Some offenses were prosecuted in probate court, while others were transferred from municipal court to superior court. Dean pleaded guilty to the pending charges in probate court, then moved to dismiss the superior court charges on the basis of procedural double ieopardy. The trial court denied the motion, and Dean appealed. Id. at 459. We held:

For OCGA § 16-1-7 (b) to apply, the prosecutor handling the proceedings must actually know of the crimes. According to the State, the knowledge we must consider is that of the district attorney, who is handling the matter in superior court. The question, however, is whether [the defendant’s] plea in probate court bars a subsequent prosecution. The only “knowledge”that matters, therefore, is the knowledge of the prosecutor who handled that plea — the probate court solicitor.

(Citations omitted; emphasis supplied.) Id. at 461. The solicitor testified that the defendant’s counsel informed him during plea negotiations of the pending charges in municipal court. Based upon this testimony, we held that the proper prosecuting officer had actual knowledge of all pending charges, and the superior court prosecution was barred. Id. at 461-462.

Similarly, in Nicely, supra, the record showed that the district attorney functioned as the prosecuting attorney in both superior and probate courts. We held that the district attorney’s actual knowledge of the drug charge in superior court was imputed to the assistant district attorney who represented the State at the probate court hearing at which the defendant entered a guilty plea to a traffic citation. 305 Ga. App. at 390 (1). And in Smith, supra, two separate prosecutions — the first by accusation for a traffic offense and the second by indictment for controlled substances charges — were pursued in the same court by the district attorney’s office. 259 Ga. at 352. Aplea bargain negotiated by an assistant district attorney to the traffic offense barred the prosecution of the remaining charges; the district attorney was the “proper prosecuting officer” because his name appeared on both the accusation and the indictment. Id. at 353.

In contrast, here Hill has failed to meet his burden of demonstrating that a prosecuting officer in the recorder’s court, where he entered his guilty plea, had actual knowledge of all the pending charges. In contrast to the facts shown in Smith, supra, the name of the district attorney does not appear on the uniform traffic citation, nor on the records of the recorder’s court. In fact, the chief deputy clerk of the recorder’s court testified that the traffic docket has no assigned prosecutor or assistant district attorney and that the district attorneys do not receive notice of cases on that docket. The circumstances here are similar to those in Chandler v. State, 305 Ga. App. 526 (699 SE2d 840) (2010), in which separate traffic citations were filed in recorder’s court for following too closely and DUI. Id. at 526-527. The defendant disposed of the following too closely charge by paying a fine to the clerk of the recorder’s court, which we noted was accomplished “without the intervention of a prosecuting officer or a judge.” Id. at 528. We held that, even though the solicitor-general prosecuted cases in recorder’s court as well as state court, the defendant still had the burden of showing actual knowledge by the solicitor-general of all the charges at the time of the disposition of the charge in recorder’s court. Id. Noting that the defendant failed to point to any evidence in the record to show actual knowledge on the part of that officer, we affirmed. Id.

Decided September 9, 2015.

Meg E. Heap, District Attorney, Austin D. Roberson, Assistant District Attorney, for appellant.

Phillips, Roberts & Carson, Mandy R. Roberts, for appellee.

Hill has not met his burden here. He has not established the identity of the prosecuting officer, if any, at his guilty plea in recorder’s court; the court’s deputy clerk testified that no prosecutor is assigned to the traffic docket on which Hill’s expired tag charge was mistakenly entered. Nor has Hill established that any prosecuting officer in recorder’s court was aware of all the pending charges. He therefore has failed to demonstrate actual knowledge of all the pending charges on the part of the proper prosecuting officer. See Smith, supra; Dean, supra. The trial court accordingly erred in granting Hill’s plea in bar.

Judgment reversed.

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

       We have observed that “the defendant can... invoke the procedural protection of [OCGA] § 16-1-7 (b) by the simple act of apprising the proper prosecuting officer of the existence of any crimes arising from the same conduct which are not actually known to that officer.” (Citation and punctuation omitted.) Nicely, supra, 306 Ga. App. at 389 (1), n. 8.


author: Barnes, Presiding Judge.

text:
    A15A1040.
    BLACK v. FERLINGERE.
    (777 S.E.2d 268)
   Barnes, Presiding Judge.

This case arises out of a dispute between Petitioner Black and Respondent Ferlingere over custody and child support relating to their daughter, J. B. In this appeal, Black challenges the trial court’s final order modifying custody and declining to award child support to either parent. Because the final order does not contain the statutorily required findings of fact and attached documentation to support the trial court’s child support ruling, we must reverse the judgment and remand for further proceedings consistent with this opinion.

The record reflects that Black and Ferlingere were unmarried when J. B. was born in January 2009 and ended their relationship a few months after the birth. Black filed a petition for legitimation, and, in January 2010, the trial court entered a consent final order legitimating J. B., ordering Black to pay monthly child support, and granting primary physical custody of J. B. to Ferlingere with visitation rights to Black.

In December 2013, Black filed a petition for modification of child custody, visitation, and child support and for contempt. Black alleged that there had been a material change in circumstances warranting modification of custody, and he sought primary physical custody of J. B., final decision-making authority, and a modification in child support. Ferlingere answered, denying the material allegations of the petition and requesting that the petition be denied.

Following a hearing on Black’s petition, the trial court entered a final order modifying custody and child support on December 8, 2014 (the “Final Order”). The trial court ruled that Black and Ferlingere would have joint physical custody of J. B., with parenting time allocated in the manner set forth in a “Permanent Parenting Plan Order” incorporated into the Final Order. The trial court further ruled that Black’s current child support obligation would cease and that “[b]ased upon the shared physical custody arrangement, neither party shall pay child support to the other.” No child support worksheets or support schedules were attached to or referenced in the Final Order.

1. Black contends that the “Permanent Parenting Plan Order,” which was incorporated into the Final Order, does not conform to the trial court’s oral ruling at the hearing as to how parenting time should be allocated between the parties. Black’s contention is misplaced.

Atrial court’s oral pronouncement is not a judgment until it is put in writing and entered as the. judgment. Although a trial court’s oral pronouncements on the record may provide insight on the intent of its subsequent written judgment, discrepancies between the two pronouncements must be resolved in favor of the written judgment. Thus, the trial court’s oral statements on the record were not binding.

(Footnote omitted.) Birchby v. Carboy, 311 Ga. App. 538, 541 (3) (716 SE2d 592) (2011). Accordingly, the terms of the Final Order, including the “Permanent Parenting Plan Order” incorporated into it, control over any nonbinding oral statements made by the trial court at the hearing on Black’s petition. See id.; In the Interest of S. F., 312 Ga. App. 671, 675 (2) (a) (719 SE2d 558) (2011).

2. Black also contends that the trial court’s Final Order must be reversed because it does not contain the requisite findings of fact to support its conclusions regarding child support and there is no child support worksheet or schedules attached to the order. We agree.

OCGA § 19-6-15 provides a process for calculating child support which, pursuant to subsection (m), requires the necessary information used in that calculation to be recorded on the child support worksheet. Deviations from the presumptive amount of child support, as provided by OCGA § 19-6-15 (i), are to be set out in Schedule E of the worksheet. OCGA § 19-6-15 (b) (8). If the factfinder deviates from the presumptive amount of child support, certain specific findings of fact must be set forth in the child support order, including the reasons for the deviation, the amount of child support that would have been required if no deviation had been applied, how the application of the presumptive amount of child support would be unjust or inappropriate considering the relative ability of each parent to provide support, and how the best interest of the child who is the subject of the child support determination is served by a deviation from the presumptive amount. See OCGA § 19-6-15 (c) (2) (E) and (i) (1) (B).

Parker v. Parker, 293 Ga. 300, 303-304 (2) (745 SE2d 605) (2013). See Brogdon v. Brogdon, 290 Ga. 618, 622-623 (5) (b) (723 SE2d 421) (2012). In addition to including the aforementioned specific findings of fact, the trial court must attach a completed child support worksheet and Schedule E to the child support order, incorporate those documents by reference into the order, or enter the pertinent information from those documents directly into the order itself. See OCGA § 19-6-15 (m) (1); Crook v. Crook, 293 Ga. 867, 870 (2) (750 SE2d 334) (2013); Demmons v. Wilson-Demmons, 293 Ga. 349, 349-350 (1) & (2), n. 1 (745 SE2d 645) (2013).

Decided September 9, 2015.

Husser & Husser, John S. Husser, for appellant.

“The child support guidelines were made mandatory to ensure that the best interests of the children were protected,” Holloway v. Holloway, 288 Ga. 147, 149 (1) (702 SE2d 132) (2010), and trial courts must “fully comply with the statutory prerequisites for deviations” from the presumptive amount of child support. Fladger v. Fladger, 296 Ga. 145, 149 (2), n. 7 (765 SE2d 354) (2014). To that end, our Supreme Court “has repeatedly emphasized the statute’s clear directive that [the statutorily required] written findings must be included in the final child support order if a deviation is made,” and that where “any of the required findings are omitted, [appellate courts] have no choice but to reverse the trial court’s judgment and remand the case to the trial court for further proceedings.” (Citations and punctuation omitted.) Brogdon, 290 Ga. at 623 (5) (b). See Crook, 293 Ga. at 869-870 (2); Holloway, 288 Ga. at 149-150 (1); Spurlock v. Dept. of Human Resources, 286 Ga. 512, 516-517 (3) (690 SE2d 378) (2010).

Here, the trial court’s Final Order states that no child support will be owed by either party in light of “the shared physical custody arrangement” but does not otherwise contain any of the specific findings of fact required by OCGA § 19-6-15 (c) (2) (E) and (i) (1) (B). Moreover, a completed child support worksheet and Schedule E are not attached to or incorporated by reference into the Final Order, nor is the information that otherwise would be found in the worksheet or schedule included in the Final Order itself. Because the Final Order fails to comply with the statutory requirements for a deviation in the presumptive amount of child support, we must reverse the trial court’s judgment and remand for further proceedings consistent with this opinion. See. Crook, 293 Ga. at 869-870 (2); Holloway, 288 Ga. at 149-150 (1); Spurlock, 286 Ga. at 516-517 (3); Johnson v. Ware, 313 Ga. App. 774, 778 (3) (723 SE2d 18) (2012).

Judgment reversed and case remanded with direction.

Ray and McMillian, JJ., concur.

McRae, Stegall, Peek, Harman, Smith & Monroe, Jule W. Peek, Jr., for appellee.

       Black previously filed a petition for modification of child custody, visitation, and child support and for contempt in December 2011. The trial court denied Black’s petition, and this Court affirmed the trial court in Black v. Ferlingere, 323 Ga. App. XXV (September 5, 2013) (unpublished).

       OCGA § 19-6-15 was revised in part in 2014, but those revisions do notaffectthe analysis in this case. See Ga. L. 2014, p. 457, §§ 1-8/SB 282.

       OCGA § 19-6-15 (g) permits the trial court to apply a “parenting time deviation” from the “presumptive amount of child support” as provided in OCGA § 19-6-15 (i) (2) (K), which states that a parenting time deviation may be made “when special circumstances make the presumptive amount of child support excessive or inadequate due to extended parenting time as set forth in the order of visitation or when the child resides with both parents equally.”


text:
    A15A1109.
    RUFFIN v. THE STATE.
    (777 S.E.2d 262)
   Boggs, Judge.

After a jury trial, Jerry Lamar Ruffin was convicted of rape, statutory rape, incest, aggravated child molestation, aggravated sexual battery, and two counts of child molestation. His amended motion for new trial was denied, and he appeals, asserting as his sole enumeration of error that the trial court violated the continuing witness rule by allowing an anatomical diagram to go out with the jury over his objection. Finding no error, we affirm.

1. Though Ruffin does not raise the general grounds, we have reviewed the record and hold that, based on the evidence adduced at trial, any rational trier of fact could have found him guilty beyond a reasonable doubt of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979); see Pendley v. State, 283 Ga. App. 262, 263 (1) (641 SE2d 174) (2006). Indeed, the victim’s testimony, standing alone, would have been sufficient to authorize a verdict of guilty. Miceli v. State, 308 Ga. App. 225, 226-227 (1) (707 SE2d 141) (2011).

2. At trial, a family nurse practitioner was qualified without objection as an expert in forensic sexual assault examination. She testified to the examination she performed on the eight-year-old victim, including the abnormal findings she observed in the victim’s hymen. She illustrated her testimony with a basic anatomical line drawing, on which she labeled three portions of the female anatomy and indicated with two “x”s the areas of the hymen in which she observed anomalies. This drawing was identified and admitted into evidence without objection as State’s Exhibit 11.

After jury instructions were complete and the jury retired to the jury room, the trial court instructed counsel, “Please look over the evidence and see if there [are] any issues that I need to rule on about what can go out to the jury room and what cannot.” Counsel for Ruffin responded, “I'have a small issue with this diagram because it was mainly an in-court diagram. It wasn’t, you know — these other ones were written on by [the victim] and those are the ones that she used to explain. That’s it.” A colloquy ensued:

THE COURT: Which one are you referring to? What’s the number?
COUNSEL FOR RUFFIN: This is the one that —
THE COURT: What’s the number for the record?
COUNSEL FOR STATE: Eleven, I think —
COUNSEL FOR RUFFIN: It’s benign, I just —
THE COURT: Okay. I’m going to allow —

On appeal, Ruffin asserts that allowing this document to go out with the jury over his objection violated the continuing witness rule. However,

it is well settled that a general objection is too vague and indefinite to present any question for decision either by the trial court or by the appellate courts. To preserve a ground for error, the objecting party must state the specific ground upon which the objection is based; the objecting party must do more than merely state that he objects.

(Citation and punctuation omitted.) Slade v. State, 287 Ga. App. 34, 35 (1) (651 SE2d 352) (2007). While both the State and the trial court later spontaneously expressed their opinions that the continuing witness rule did not apply, Ruffin’s counsel did not make any specific objection, just that he had a “small issue” and that the exhibit, was “benign.” This was insufficient to preserve his objection for review. “To fully inform the trial court and permit a ruling, the defendant must articulate the specific basis for objecting to the statement. When the specific ground of objection is not made at the time the evidence is offered, the failure to do so amounts to a waiver of that specific ground.” (Citations, punctuation and footnote omitted.) Johnson v. State, 287 Ga. App. 533, 534 (1) (652 SE2d 179) (2007).

Moreover, as the trial court observed, the burden is on Ruffin to demonstrate from the record that the exhibit in question actually went out with the jury during deliberations. Gant v. State, 313 Ga. App. 329, 334 (1) (f) (721 SE2d 913) (2011). While Ruffin cites the trial court’s statement that it would allow the exhibit to go out, nothing in the record demonstrates that it was with the jury during deliberations.

But even assuming that Ruffin’s objection was adequate, and assuming that State’s Exhibit 11 was sent out with the jury during its deliberations, this document does not violate the continuing witness rule.

In Georgia the “continuing witness” objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once.

(Citations and punctuation omitted.) Tibbs v. Tibbs, 257 Ga. 370, 370-371 (359 SE2d 674) (1987).

This continuing witness objection usually concerns testimonial documentary evidence, such as the affidavit in Tibbs, and depositions of interrogatories. However, the objection has also been applied to unsworn, written dying declarations and written confessions or statements of criminal defendants, on the grounds that such statements are the equivalent of depositions.

(Citations and punctuation omitted.) Kenney v. State, 196 Ga. App. 776, 777 (2) (397 SE2d 131) (1990) (photo lineup array marked by witness and signed by police officer not “functional equivalent of a deposition”).

Our Supreme Court and this court have repeatedly held that anatomical charts or drawings used by witnesses during their testimony are not the “functional equivalent of a deposition,” but rather “demonstrative evidence that serve [s] only to illustrate testimony given by the witnesses.” (Citation omitted.) James v. State, 270 Ga. 675, 678 (7) (513 SE2d 207) (1999) (anatomical charts used by medical examiner to illustrate testimony regarding location of victim’s wounds not continuing witness evidence). See also Gabbard v. State, 233 Ga. App. 122, 124 (3) (503 SE2d 347) (1998) (anatomical drawings used to illustrate victims’ testimony not continuing witness evidence). Nor does the fact that the witness wrote on the anatomical drawing change this result. Abernathy v. State, 278 Ga. App. 574, 586-587 (3) (b) (ii) (630 SE2d 421) (2006) (counsel not ineffective in failing to object to anatomical drawings upon which victim of child molestation labeled body parts and indicated the part touched and person who touched him); Griffin v. State, 243 Ga. App. 282, 286 (6) (531 SE2d 175) (2000) (anatomical diagram marked by registered nurse to show injuries to victims not continuing witness evidence).

Decided September 9, 2015.

James W. Studdard, for appellant.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

Appellant states in conclusory fashion and in bold-face type, “This diagram was a continuing witness, period.” But he cites no controlling law in support of this assertion. Instead, he argues at some length, and in obscure and exaggerated language, that this witness was so thorough and complete in her testimony that no illustrative diagram was necessary. But admissibility, not necessity, is the question here, and Ruffin acknowledges that an expert witness may use a diagram to illustrate testimony. Here, the diagram illustrated the physical location at which the witness found damage to the victim’s hymen; that is neither superfluous nor bolstering, but simply illustrative. The trial court did not err in allowing State’s Exhibit 11 to go out with the jury.

Judgment affirmed.

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

       The statement in McClure v. State, 163 Ga. App. 236, 237-238 (3) (293 SE2d 496) (1982), to the effect that “charts and diagrams may be used during the course of a trial for the purpose of illustrating testimony or contentions but are excluded as being a continuing witness in the jury room” is dicta and inapplicable to the facts of this case. The document in question in McClure was not created as a demonstrative exhibit by a witness in order to illustrate his or her testimony, but instead was a summary chart prepared by the State for use in its argument to the jury. Id. It was only displayed during the State’s opening and closing arguments, it was not offered or admitted in evidence, it was not sent out with the jury, and it was not made part of the record on appeal. Id. Appellant argued only that the State should not have been allowed to employ the chart in its opening and closing arguments. We held that McClure had abandoned that enumeration of error by failing to support it with authority. Id. See also Moss v. State, 274 Ga. 740, 741-742 (2) (559 SE2d 433) (2002) (Unauthenticated charts and diagrams used as “props” in counsel’s arguments should not go out with jury, but “demonstrative evidence is to be received into evidence and go out with the jury during deliberations. [Cit.]”).


text:
    A15A1011.
    JONES v. THE STATE.
    (777 S.E.2d 480)
   Barnes, Presiding Judge.

Following the denial of his motion for new trial, Anthony Jones appeals his conviction for three counts of aggravated child molestation, two counts of aggravated sexual battery, three counts of incest, two counts of child molestation, and one count of statutory rape. Jones contends that the evidence was insufficient to sustain the conviction and, in particular, to establish incest during the date range alleged in the indictment, and that the trial court erred in failing to merge certain convictions into others. For the reasons that follow, we affirm the convictions but vacate the sentences on two of the three incest counts and remand the case for resentencing.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and the defendant is no longer entitled to a presumption of innocence. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). So viewed, the record shows that in August 2007, ten-year-old J. A. and her two brothers came to live with their biological aunt and her husband, Jones. J. A.’s mother had recently passed away, and her father had been imprisoned for molesting her when she was four.

In April 2008, Jones asked then-eleven-year-old J. A. if he could see her butt and inserted a gloved finger into her vagina. This happened several times, and Jones also put his mouth on her chest. J. A. told her aunt about the molestation, but Jones denied anything happened, and J. A.’s aunt “sided with him,” so J. A. told her that everything she had said was untrue. J. A. also told the assistant principal at her school, who contacted the Department of Family and Children Services, but while someone interviewed the child, no follow-up took place.

In February 2009, Jones and twelve-year-old J. A. began to develop what the child described as a “father/daughter, boyfriend/ girlfriend ... type of relationship.” J. A. talked to Jones about school and her future, and she testified that Jones told her “that he wanted to marry me and he wanted me to have like twenty kids. And I was going to get pregnant when I was sixteen and we’re going to get married when I was sixteen.” Jones gave J. A. a gold wedding band as an'engagement ring in October 2009 while she was in seventh grade.

Jones began having sexual intercourse with J. A. when she was twelve or thirteen. He signaled for her to go into the bathroom by flicking her television on and off after midnight, where he had anal sex with her once or twice. He also ejaculated on her face, placed his penis in her mouth, and placed her mouth on his penis.

Late one evening in January 2011, Jones told J. A.’s brother to make noise doing the dishes in the kitchen, which was Jones’s job, while he cleaned the microwave in the pantry. Jones had asked the brother to do this before, although one time Jones left the cleaning cloth in the kitchen and was gone “for a long time and came out sweating.” On this evening, the aunt came downstairs while Jones and J. A. were having sex in the living room. J. A. tried to hide behind some boxes, but her aunt saw her, and J. A. ran out the door to the garage, pulling up her pants as she went. Both J. A. and Jones admitted to the aunt that they had been having sex, and upon J. A.’s prompting, the aunt observed that Jones had petroleum jelly on his penis. J. A. also showed her aunt the engagement ring, which the aunt kept and later gave to a police detective. The State introduced the ring into evidence during trial.

The aunt did not immediately report Jones but made him move out of the house. He continued having intercourse with J. A. anyway, picking her up five or six times from her school bus stop and driving her to a Publix parking lot, where they had sex in the back seat of his car. The aunt saw J. A. get into Jones’s car one day and called him to demand he bring her home, which he did. On February 14, 2011, the aunt finally called 911 and reported the abuse. Jones told the investigating officer that J. A. made these allegations because she was afraid she would have to go live in a foster house. Jones’s wife, he explained, thought something was going on between Jones and J. A. Additionally, Jones said, the aunt was “fed up with the disrespect” showed by J. A. and her brothers.

1. Jones first enumerates as error the trial court’s denial of his motion for a directed verdict of acquittal on all 11 counts of the indictment, arguing that the State did not meet its threshold evidentiary burden. We review the trial court’s denial of Jones’s motion for a directed verdict as we would a claim that the evidence was insufficient to sustain the convictions, and determine, based on the evidence presented, whether a rational finder of fact could have found the accused guilty of the charged offenses beyond a reasonable doubt. Hash v. State, 248 Ga. App. 456, 457 (1) (546 SE2d 833) (2001); OCGA § 17-9-1 (a).

Jones asserts that the State failed to meet its burden because a thorough forensic examination of J. A. revealed nothing remarkable or abnormal about the child’s physical health. Jones contends that it “seem[s] dubious” that the examination revealed no physical evidence, given the allegations that J. A. and Jones had an ongoing sexual relationship.

As Jones concedes, none of the crimes alleged in the indictment charged Jones with causing any physical injuries, nor did they require corroborating medical evidence. See Mangham v. State, 291 Ga. App. 696, 697 (662 SE2d 789) (2008) (explaining that medical evidence is not required to corroborate testimony of the victim of aggravated child molestation); see also Lee v. State, 306 Ga. App. 144, 145 (1) (701 SE2d 582) (2010) (in aggravated sexual battery case, “penetration of the victim’s sexual organ need only be slight and a physical injury need not be shown”). Further, the testimony of a single witness is sufficient to prove the charged crimes. See OCGA § 24-14-8; Vaughn v. State, 301 Ga. App. 391, 392 (687 SE2d 651) (2009). Georgia law does not require corroboration of a victim’s testimony to prove child molestation or aggravated sexual battery. Id. at 392, n. 1; Boyt v. State, 286 Ga. App. 460, 461 (649 SE2d 589) (2007); Honeycutt v. State, 245 Ga. App. 819, 819-820 (1) (538 SE2d 870) (2000).

Jones also asserts that J. A.’s testimony was not believable, and describes her tales of clandestine sex with Jones inside the family home as “surreal and too fantastic,” challenging her credibility given her previous problems and conflicts with her aunt. However, the determination of J. A.’s credibility is a matter entirely within the jury’s province. Johnson v. State, 273 Ga. 872, 874 (2) (548 SE2d 292) (2001); see also Moody v. State, 206 Ga. App. 387, 391 (5) (425 SE2d 397) (1992) (weight to be accorded to victim’s statements in light of inconsistencies was jury issue); Levitt v. State, 201 Ga. App. 63 (1) (410 SE2d 170) (1991) (defendant’s argument that victim’s confused and inconsistent testimony was unreliable went to her credibility, an issue within the jury’s province).

Here, J. A. testified that Jones repeatedly had sexual intercourse and engaged in other sexual acts with J. A., his niece, who was younger than sixteen. Jones’s wife testified that Jones admitted having sex with J. A. As the State’s evidence was sufficient for any rational trier of fact to find Jones guilty beyond a reasonable doubt of the crimes alleged in the indictment, the trial court properly denied his motion for a directed verdict.

2. Jones was charged with three counts of incest: Count 5 for engaging in sexual intercourse with his niece between February 1, 2010, and December 30, 2010, Count 6 for engaging in sexual intercourse with his niece between December 31, 2010, and February 12, 2011, and Count 7 for engaging in sodomy with his niece between May 10, 2010, and December 20, 2010. Jones argues that the State presented insufficient evidence to prove that he committed incest within the specific date range alleged in Count 5 of the indictment. While we disagree with Jones that the date range was a material averment of the indictment, for other reasons we conclude that the trial court erred in sentencing Jones on both Count 5 and Count 6.

The acts alleged in Counts 5 and 6 were the same, and both counts averred that the exact dates of the offenses were unknown to the grand jury but that each act was “separate and distinct from the act alleged” in the other count. The trial court charged the jury that the indictment did not state that the date of the offense was a material element of the crime, and that it was sufficient that the State show that the offense occurred within the seven years before the indictment was filed regardless of the date listed on the indictment. Neither party excepted to the charge.

If “the counts in the [indictment] are identical except for the dates alleged, and the dates were not made essential averments, only one conviction can stand.” (Citation and punctuation omitted.) Daniels v. State, 320 Ga. App. 340, 343 (2) (739 SE2d 773) (2013).

This rule applies in prosecutions for multiple sexual assaults against child victims despite the impracticality of treating the dates specified in indictments as material averments. And the mere fact that a different date is charged in each count will not of itself make the indictment into a special one where the averment as to date is not particularized.

(Citations and punctuation omitted.) Id. See Martin v. State, 73 Ga. App. 573, 576 (3) (37 SE2d 411) (1946) (absent averment that dates were material elements, defendant convicted of fifteen counts for running a lottery may be sentenced for only one general offense).

While we have previously held that the State made time an essential averment by alleging the same conduct on different dates in multiple counts, the trial courts in those cases apparently did not specifically charge the jury that the dates were not material averments of the crimes, as the trial court did in this case. Daniels, 320 Ga. App. at 343-344 (2). The State must make an election when it charges a defendant with multiple counts of the same crime: if the State makes the dates material averments and introduces sufficient evidence to prove the dates, it may obtain multiple convictions; if the State does not make the dates material averments, then it has a much broader time frame within which to prove the crimes were committed, but it is limited to a single conviction.

In this case, the dates alleged in Counts 5 and 6 were not made material averments of the indictment, and therefore Jones may be sentenced on only one of the two counts. We therefore vacate the sentences on those counts and remand for resentencing.

3. Jones also contends that the trial court should have merged Counts 5 and 6 into the statutory rape count for sentencing purposes. While we have concluded in the previous division that Jones may be sentenced on only one of these two counts, the question remains whether the remaining count of incest for sexual intercourse merges into the statutory rape count. It does not.

Under OCGA § 16-1-7 (a), when the same conduct may establish the commission of multiple crimes, the accused may not be convicted of crimes that are included in other crimes. To determine whether one crime is included in another, the Supreme Court of Georgia has adopted the “required evidence” test, which reflects the statutory language of OCGA § 16-1-6 (1). Drinkard v. Walker, 281 Ga. 211, 217 (636 SE2d 530) (2006). Under both the statute and the required evidence test, one crime is “included in” the other if it is “established by proof of the same or less than all the facts . . . than is required to establish the commission of [the other crime].” Id. at 213.

While Jones argues that all of the elements of incest are included in the elements of statutory rape, they are not. To establish the crime of statutory rape, the State was required to prove that Jones engaged in sexual intercourse with a person younger than 16 who was not his spouse. OCGA § 16-6-3 (a). To establish the crime of incest, the State was required to prove that the victim was related to the defendant by blood or marriage within a certain degree of consanguinity, including thatof uncle andniece. OCGA § 16-6-22 (a) (6). On the statutory rape charge, the State introduced evidence that the victim was younger than 16, a fact that was not required to prove incest. In Counts 5 and 6 charging Jones with incest for having sexual intercourse with his niece, the State introduced evidence that Jones’s wife was the victim’s aunt, and thus that the victim was Jones’s niece by marriage, a fact that was not required to prove statutory rape. Thus, the crime of committing incest by having sexual intercourse with a niece was not established by proof of same or fewer than all the facts required to establish statutory rape, and the offenses do not merge as a matter of law. See Drinkard, 281 Ga. at 213 (crimes of statutory rape andincest are not included in crime of rape because each offense was established by proof of a fact not required to prove either of the other two offenses); Dew v. State, 292 Ga. App. 631, 635 (3) (665 SE2d 715) (2008) (offense of rape, requiring proof of force, and offense of incest, requiring proof of consanguinity, do not merge).

Decided September 15, 2015.

Long D. Vo, for appellant.

Robert D. James, Jr., District Attorney, Gerald Mason, Assistant District Attorney, for appellee.

4. Finally, Jones contends that his conviction for committing incest by engaging in an act of sodomy with his niece should merge into his three aggravated child molestation convictions “as a matter of fact,” contending that, “as alleged in the indictment, proof of the incest also factually established any of the aggravated sodomy counts.”

In Counts 1, 2, and 3, the State charged Jones with aggravated child molestation involving three different acts that constitute sodomy under OCGA § 16-6-2 (a), which defines the offense as “involving the sex organs of one person and the mouth or anus of another.” TÍie State also charged Jones with committing the act of incest by engaging in sodomy with his niece, although it did not allege the manner in which the act of sodomy was committed. Jones thus argues that “proof of the incest also factually established any of the aggravated sodomy counts,” and therefore the incest conviction merged with them as a matter of law.

As discussed in the previous division, as of 2006, Georgia’s appellate courts no longer use the “actual evidence” test to determine whether offenses merge. Under Drinkard, 281 Ga. at 217, we apply the “required evidence” test and consider whether the offenses required proof of different facts. Child molestation requires proof that the victim was younger than 16; incest requires proof of consanguinity, and these required elements do not overlap. Accordingly, the trial court did not err in failing to merge the conviction for incest by committing sodomy on a niece with the three aggravated child molestation convictions.

In summary, we affirm the judgments of conviction on all 11 counts, but vacate the sentence as to Counts 5 and 6 and remand for resentencing in accordance with this opinion.

Judgment of conviction affirmed, sentence vacated in part, and case remanded with direction.

Ray and McMillian, JJ., concur.

       OCGA § 17-9-1 (a) provides:
      Where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or “not guilty” as to the entire offense or to some particular count or offense, the court may direct the verdict of acquittal to which the defendant is entitled under the evidence and may allow the trial to proceed only as to the counts or offenses remaining, if any.

       Count 5 additionally alleged that the victim was younger than 14, but that additional element is not relevant to our analysis.

       See, e.g., Salley v. State, 199 Ga. App. 358, 362 (4) (405 SE2d 260) (1991); Hamilton v. State, 167 Ga. App. 370, 371 (306 SE2d 673) (1983).

       While Jones cites McCranie v. State, 157 Ga. App. 110 (276 SE2d 263) (1981), for the proposition that the offense of incest is included in the offense of statutory rape, that case was specifically overruled in Drinkard, 281 Ga. at 217, n. 38.


author: BARNES, Presiding Judge.

text:
    A15A1237.
    THE STATE v. QUARTERMAN.
    (777 S.E.2d 485)
   BARNES, Presiding Judge.

The State appeals the trial court’s order granting Garnelle Quarterman’s motion to suppress evidence obtained following a traffic stop of a vehicle in which Quarterman was a passenger. The State contends that the trial court erred by concluding that (1) the police officer’s initial encounter with Quarterman was not a second-tier encounter supported by reasonable articulable suspicion and (2) a third-tier encounter occurred when the officer grabbed Quarter-man, at which point the officer lacked probable cause to make an arrest. For the reasons that follow, we reverse.

When reviewing a trial court’s ruling on a motion to suppress, we apply the following principles:

When the facts material to a motion to suppress are disputed, it generally is for the trial judge to resolve those disputes and determine the material facts. This principle is a settled one, and this Court has identified three corollaries of the principle, which limit the scope of review in appeals from a grant or denial of a motion to suppress in which the trial court has made express findings of disputed facts. First, an appellate court generally must accept those findings unless they are clearly erroneous. Second, an appellate court must construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court. And third, an appellate court generally must limit its consideration of the disputed facts to those expressly found by the trial court.

(Citations and footnotes omitted.) Hughes v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015). But “we owe no deference at all to the trial court with respect to questions of law, and instead, we must apply the law ourselves to the material facts.” Id. at 750 (2).

The evidence presented at the motion to suppress hearing, construed in favor of the trial court’s factual findings, showed that on February 1, 2014, Quarterman was a passenger in a vehicle that an officer attempted to stop for speeding. When the vehicle failed to stop, two additional officers responded to assist. The vehicle continued to flee, and the officers chased it until the pursuing officer performed a “pit maneuver,” forcing the vehicle to stop. The driver and the two passengers then immediately exited the vehicle and ran away. The pursuing officer told all three men to stop, but they continued to run from the officers. The officer pursued the front seat passenger, who was identified as Quarterman.

When asked about his reasoning for chasing Quarterman, the officer stated that he “felt there was reasonable suspicion to believe that he was involved in criminal activity in that vehicle that was fleeing from us.” Defense counsel inquired further:

[COUNSEL]: What criminal activity would he have been responsible for at that time? What suspicion [did] you have?
[OFFICER]: No one runs for no reason.
[COUNSEL]: So merely the fact that he ran.
[OFFICER]: That’s why I was chasing him. Yes, sir.
[COUNSEL]: Is there a law that makes it a crime to run from the police?
[OFFICER]: If there’s suspicion, obstruction.
[COUNSEL]: Well, what was the suspicion for?
[OFFICER]: He was involved in a vehicle crash, and he left the scene also.
[COUNSEL]: And what legal responsibility did he have to stay at that vehicle? Define which legal requirement he had to stay at the vehicle.
[OFFICER]: I’d have to look it up.
[COUNSEL]: So you don’t know.
[OFFICER]: That’s right.
[COUNSEL]: That’s right. You don’t know.
[OFFICER]: You can say that.
[COUNSEL]: And so, without knowing Mr. Quarterman, his identity, or any suspicion of criminal activity, you decided to pursue and detain Mr. Quarterman. Correct?
.[OFFICER]: I chased him. Yes, sir.

The pursuing officer was able to catch Quarterman after chasing him for about 200 yards, at which point he “grabbed him by the arm to take him to the ground.” According to the officer, Quarterman then turned around, struck him in the face, and began fighting him. While they were exchanging blows, Quarterman allegedly threatened to kill the officer and attempted to remove the officer’s weapon from its holster. After one of the other officers arrived to assist, they were able to restrain Quarterman and place him under arrest. During a search of Quarterman incident to his arrest, they discovered a gun and cocaine.

Quarterman was indicted for two counts of fleeing or attempting to elude a police officer, criminal attempt to commit murder, three counts of aggravated assault on a police officer, two counts of attempted removal of a weapon from a public official, three counts of obstruction of an officer, criminal attempt to commit a felony, possession of cocaine, two counts of possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. Following indictment, Quarterman filed a motion seeking to suppress all evidence obtained as a result of the allegedly unlawful seizure. The trial court granted the motion and excluded all evidence “obtained by [the officer] through an unlawful seizure of [QuartermanJ’s person.”

Pursuant to the Fourth Amendment to the United States Constitution, people have the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and that right shall not be violated. In construing this amendment, the United States Supreme Court has set forth three tiers of encounters between police and citizens: “(1) communication between police and citizens involving no coercion or detention, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.” (Citation omitted.) State v. Dukes, 279 Ga. App. 247, 248 (630 SE2d 847) (2006).

In the first [tier], 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. This tier provides no Fourth Amendment protection. The second tier occurs when the officer actually conducts a brief investigative Terry stop of the citizen. In this level, a police officer, even in the absence of probable cause, may stop persons and detain them briefly, when the officer has a particularized and obj ective basis for suspecting the persons are involved in criminal activity. The third tier of police-citizen encounters includes full-scale arrests that must be supported by probable cause.

(Citations and punctuation omitted.) McClary v. State, 292 Ga. App. 184, 186 (663 SE2d 809) (2008).

The trial court ruled that the officer’s initial interaction with Quarterman was a first-tier encounter, from which Quarterman had the right to leave. We acknowledge that “a citizen’s ability to walk away from or otherwise avoid a police officer is the touchstone of a first-tier encounter [, and that] even running from police during a first-tier encounter is wholly permissible.” (Citations and punctuation omitted.) Ewumi v. State, 315 Ga. App. 656, 658 (1) (727 SE2d 257) (2012). In this situation, however, the officer was not precluded from investigating Quarterman’s flight.

Flight in connection with other circumstances may be sufficient probable cause to uphold a warrantless arrest or search; certainly these circumstances give rise to an articulable suspicion that a criminal act may have been occurring so as to authorize a brief investigatory stop.

(Citation and punctuation omitted.) Ransom v. State, 239 Ga. App. 501, 504 (2) (521 SE2d 430) (1999). Quarterman was a passenger in a vehicle involved in a high-speed chase that ended only when a pursuing officer performed a “pit maneuver” on the vehicle to make it stop. As soon as the vehicle came to a stop, Quarterman immediately exited and ran away from the officers. Quarterman’s flight, coupled with the circumstances of the stop, provided the officer with at least a reasonable articulable suspicion to warrant further investigation. See id.; see also McClary, 292 Ga. App. at 187 (suspicious answer during first-tier encounter followed by immediate headlong flight was sufficient to justify brief investigatory stop). “That such further investigation necessarily entailed a foot chase was due only to [Quarterman]’s refusal to halt at [the officer’s] authorized request.” Ransom, 239 Ga. App. at 504 (2).

When the officer caught Quarterman, he grabbed him by the arm to take him to the ground. The trial court ruled that this contact escalated the interaction to a third-tier encounter, a custodial arrest, that required probable cause. We disagree.

The test for determining whether a person has been placed under custodial arrest is whether the individual was formally arrested or restrained to a degree associated with a formal arrest, not whether the police had probable cause to arrest. The test is whether a reasonable person in the suspect’s position would have thought the detention would not b'e temporary. A trial court deciding whether to admit evidence must apply this objective test; it is the reasonable belief of an ordinary person under such circumstances, and not the subjective belief or intent of the officer, that determines whether an arrest has been effected.

Decided September 15, 2015

Meg E. Heap, District Attorney, Lyndsey H. Rudder, Assistant District Attorney, for appellant.

Steven L. Sparger; Nye Law Group, Justin D. Maines, for appellee.

(Citations and punctuation omitted.) Suluki v. State, 302 Ga. App. 735, 738 (1) (691 SE2d 626) (2010). Here, the officer’s act of grabbing Quarterman’s arm was a second-tier encounter, an attempted brief detention to investigate the suspicion of illegal activity. See McClary, 292 Ga. App. at 187. When Quarterman violently fought the officer during the attempted detention, he escalated the encounter to a third-tier encounter and gave the officer probable cause to arrest him for obstruction. See id. Accordingly, the trial court erred by granting Quarterman’s request to suppress the evidence discovered as a result of his arrest.

Judgment reversed.

McMillian, J., concurs. Ray, J., concurs in judgment only.

       In its notice of appeal, the State indicates that it is appealing pursuant to OCGA § 5-7-1 (a) (3), but because this appeal is from an order suppressing or excluding evidence illegally seized, it falls under OCGA § 5-7-1 (a) (4).

       Although Quarterman’s motion was styled as a “Motion to Dismiss,” the relief sought in the motion was the suppression of evidence obtained as a result of the allegedly illegal seizure, the parties proceeded as if the motion was a motion to suppress, and the trial court treated the motion as a motion to suppress. See State v. Johnston, 249 Ga. 413, 414-415 (291 SE2d 543) (1982) (trial court is not bound by nomenclature used by a party). Accordingly, we treat Quarterman’s motion as a motion to suppress.