author: ANDREWS, Presiding Judge.

text:
    A15A2217.
    WALTON v. THE STATE.
    (780 SE2d 680)
   ANDREWS, Presiding Judge.

The appellant, Toya Walton, was convicted of speeding on April 2, 2015, and filed a timely notice of appeal from that conviction. This appeal is not from that conviction, however, but rather is from the denial of Walton’s subsequent motion to require the official court reporter to transcribe all pre-trial and jury trial matters and provide her with a free transcript of the proceedings.

1. Walton is not indigent. But she contends she is entitled to a free digital copy of the trial transcript pursuant to Judicial Council of Georgia, Policies and Fees for Court Reporting Services in Criminal Cases, Rule 2.3 (A), effective January 1, 2015, which provides:

In all criminal cases, when a transcript is required or requested to be prepared, it shall be filed with the clerk of court immediately upon completion and certification. The court reporter shall notify the court, prosecutor, defense attorney(s), and/or self-represented defendant(s) of the date the transcript is filed with the clerk of court and provide each with a digital copy of the transcript at no charge.
Once filed, the transcript is a public record (O.C.G.A. § 50-18-70), and copies may be provided at the rate determined by the clerk or by law as any other public record.

Walton’s contention, if accepted, would shift the cost of transcripts from nonindigent criminal case defendants to the general public. If that is the law, to quote Charles Dickens’ Mr. Bumble, “the law is a ass — a idiot.” But that is not the law.

Decided November 17, 2015.

The Patterson Firm, Jackie G. Patterson, for appellant.

Tasha M. Mosley, Solicitor-General, for appellee.

OCGA § 15-14-5 provides in part: “[i]t shall be the duty of each court reporter to transcribe the evidence and other proceedings of which he has taken notes as provided by law whenever requested so to do by counsel for any party to such case and upon being paid the legal fees for such transcripts.” The Judicial Council rule cannot trump this statute.

If a nonindigent criminal defendant requests a transcript, the statute obligates a court reporter to prepare one, upon getting paid by the requesting party. Inasmuch as Judicial Council Rule 2.3 (A) cannot override that statute, the only reasonable interpretation of the Rule is that it reflects our modern digital age and provides for free digital copies of a transcript to parties once the requesting party pays for the initial transcript.

2. Before the hearing on Walton’s motion, the attorney for Clayton County filed a motion to intervene, in order to protect the interests of the county, which had the potential of being required to expend county funds for transcripts for nonindigent criminal defendants. Walton contends the trial court erred in allowing the county attorney to intervene. However, because the trial court properly denied Walton’s motion, we need not address the county attorney’s intervention. See In re Bowens, 308 Ga. App. 241, 244 (2) (706 SE2d 694) (2011).

Judgment affirmed.

Miller and Branch, JJ., concur.


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A15A1064.
    BLANKS v. THE STATE.
    (778 SE2d 261)
   Branch, Judge.

After a dispatcher informed an officer that a black GMC Sonoma pickup truck had been seen speeding southbound on Peachtree Parkway but failed to relate other details from the 911 call, the officer performed a traffic stop without personally witnessing any traffic violations; the traffic stop ultimately led to Christopher Blanks’s arrest for driving under the influence. Following a bench trial based on stipulated evidence, Blanks was convicted of driving under the influence. On appeal, he contends the trial court erred by denying his motion to suppress evidence obtained during his traffic stop. We affirm.

On review of a ruling on a motion to suppress, the trial judge’s findings of fact should not be disturbed if there is any evidence to support them; determinations of fact and credibility must be accepted unless clearly erroneous; and the evidence must be construed in favor of the trial court’s findings and judgment. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994); Jackson v. State, 258 Ga. App. 806, 807-808 (2) (575 SE2d 713) (2002). “In all cases, [appellate courts] independently apply the law to the facts.” Drake v. State, 296 Ga. 286, 288 (2) (766 SE2d 447) (2014) (citation omitted).

In its order denying Blanks’s motion to suppress, the trial court found as a matter of fact that an anonymous person called 911 to report that he had observed a black GMC Sonoma truck driving southbound on Peachtree Parkway in Peachtree City in an erratic fashion, including accelerating up to speeds of 60 miles per hour and slowing down and weaving from side to side on the roadway. The tape recording of the 911 call supports these findings. The recording shows that the caller was on the phone for almost five minutes. During that time, the caller reported that he was following a black GMC Sonoma pickup truck on Peachtree Parkway that could not stay within the lines, was “all over the road,” and at one point was traveling 60 mph in a 40 mph zone. The caller reported the events as they were happening, including identifying the cross streets and a middle school that the truck was passing, thereby indicating the truck’s location and direction of travel. At several intervals, the 911 operator confirmed with the caller that the caller still had the truck in sight. The caller reported that the truck appeared to have a male driver and a female passenger. About four minutes into the call, the caller reported that the truck was approaching a cross street called “Crosstown” and that he saw an officer making a u-turn. The caller then had to turn and reported that the truck was proceeding through the intersection and continuing on Peachtree Parkway.

The trial court found that the dispatcher issued an alert, received by Officer DiGrazia of the Peachtree City Police Department, that a black Sonoma was being operated southbound and was speeding, and that DiGrazia saw a truck fitting the description and conducted a traffic stop. Officer DiGrazia’s testimony and her video recording of the traffic stop support this finding. DiGrazia testified that at 2:57 a.m. when there was very little traffic, she received the dispatcher’s call to look out for a southbound black Sonoma that was traveling southbound on Peachtree Parkway coming in her direction and that the truck was speeding. DiGrazia was located a short distance south from the intersection between Peachtree Parkway and Crosstown facing southbound on Peachtree Parkway. Within minutes, DiGrazia subsequently saw a black Sonoma being driven by Blanks, she followed briefly to verify the type of truck, then activated her blue lights and conducted a traffic stop in an apartment complex parking lot into which Blanks had turned.

It is not disputed that when DiGrazia spoke to Blanks, she could smell an odor of alcohol coming from his person. When she asked Blanks if he had anything to drink, Blanks responded, “No.” Blanks agreed to perform field sobriety tests and to provide a roadside sample of his breath which tested positive for alcohol. Based on the results of both tests, DiGrazia arrested Blanks for driving under the influence to the degree that he was less safe.

The trial court held that, based on the information known to DiGrazia, DiGrazia had reasonable articulable suspicion to stop Blanks for the offense of speeding and that she was not required to question the dispatcher about the source of the information or wait until she observed criminal activity. The court concluded that the traffic stop was proper and that the officer had probable cause to arrest Blanks; thus, the court denied the motion to suppress.

The parties later agreed to submit the transcript of the hearing on the motion to suppress as the evidence against Blanks, together with a stipulation that Blanks was eventually tested and determined to have a blood alcohol level between 0.137 and 0.140. Blanks was convicted of driving under the influence, less safe.

1. Although Blanks contends the trial court erred by denying his motion to suppress on the ground that the officer lacked articulable suspicion to stop him, he does not challenge the court’s findings of fact in the order on the motion to suppress, and, as shown above, they are supported by the record. Rather, Blanks asserts that because the dispatcher relayed only part of the information obtained from the 911 caller to DiGrazia — that is, that a black Sonoma was being operated southbound and was speeding — the information known to DiGrazia provided an insufficient basis for her to perform a traffic stop. He notes that DiGrazia did not have the license tag number of the vehicle, a description of the driver, or any indication of wrongdoing other than speeding.

“The Fourth Amendment permits brief investigative stops — such as the traffic stop in this case — when a law enforcement officer has ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ ” Navarette v. California,_ U. S._(II) (134 SCt 1683, 188 LE2d 680) (2014), quoting United States v. Cortez, 449 U. S. 411, 417-418 (II) (A) (101 SCt 690, 66LE2d 621) (1981). The officer’s knowledge is based on the totality of the circumstances.

The “reasonable suspicion” necessary to justify such a stop is dependent upon both the content of information possessed by police and its degree of reliability. The standard takes into account the totality of the circumstances — the whole picture. Although a mere hunch does not create reasonable suspicion, the level of suspicion the standard requires is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause.

Navarette,_U. S. at_(II) (citation and punctuation omitted).

(a) We first agree with the State that the question whether DiGrazia had articulable suspicion to perform the stop should be resolved based on all the information known to both DiGrazia and the dispatcher. “Probable cause [and articulable suspicion] may rest upon the collective knowledge of the police when there is some degree of communication between them, rather than solely on the information possessed by the officer who actually makes the arrest.” Goodman v. State, 255 Ga. 226, 229 (13) (336 SE2d 757) (1985) (citation omitted); State v. Maddox, 252 Ga. App. 414, 416 (556 SE2d 501) (2001) (“Police officers are authorized to use information received by radio dispatch as part of their basis for articulable suspicion to conduct a stop.”) (footnote omitted); Buffington v. State, 228 Ga. App. 810, 811 (492 SE2d 762) (1997). Thus, we are authorized to consider the additional details regarding Blanks’s driving that the caller provided during the 911 call but that were not related to DiGrazia.

(b) Next, despite the fact that the information was provided by an anonymous caller, the totality of the circumstances provided sufficient articulable suspicion for DiGrazia to stop Blanks. The use of anonymous tips as part of the basis for reasonable suspicion depends on whether there are sufficient indicia of reliability to those tips.

Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity. As we have recognized, however, there are situations in which an anonymous tip, suitably corroborated, exhibits sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.

Florida v. J. L., 529 U. S. 266, 270 (II) (120 SCt 1375, 146 LE2d 254) (2000) (citation and punctuation omitted).

In Navarette, a dispatcher broadcast that a 911 caller had reported that a southbound silver Ford 150 with a certain license tag number had run the caller off the roadway and was last seen about five minutes earlier. Navarette,_U. S. at_. An officer responded to the broadcast and pulled the truck over, a second officer arrived on the scene, and both officers smelled marijuana as they approached the truck. Id. The officers saw 30 pounds of marijuana in the truck bed and therefore arrested the driver and passenger. Id.

In addressing the denial of the defendants’ motion to suppress the evidence, the Supreme Court analyzed whether the 911 call had sufficient indicia of reliability to support the traffic stop. The Supreme Court first found that the fact that the tipster reported that she had been run off the road by a specific vehicle showed that she “claimed eyewitness knowledge of the alleged dangerous driving,” which supports the tip’s reliability and implies that the car was being driven dangerously. Navarette,_U. S. at_(II) (B).The court also found that the caller’s nearly contemporaneous call following the incident suggested reliability, id. at_(II) (B), and that the caller’s use of the 911 emergency system indicated veracity because 911 calls are recorded, phone numbers are captured, and the caller’s location can often be determined, significantly reducing anonymity. Thus, the court concluded, there were some indicia of reliability surrounding the anonymous tip. Id.

The court also explained that “[e]ven a reliable tip will justify an investigative stop only if it creates reasonable suspicion that ‘criminal activity maybe afoot.’ ” Navarette,_U. S. at_(II) (C), quoting Terry v. Ohio, 392 U. S. 1, 30 (V) (88 SCt 1868, 20 LE2d 889) (1968). The court noted that “[t]he 911 caller in this case reported more than a minor traffic infraction and more than a conclusory allegation of drunk or reckless driving. Instead, she alleged a specific and dangerous result of the driver’s conduct: running another car off the highway.” Id. The court concluded that the 911 caller’s report of being run off the roadway, “viewed from the standpoint of an objectively reasonable police officer, amounts to reasonable suspicion of drunk driving.” Id. (citation and punctuation omitted). The court noted, however, that “[ujnconfirmed reports of driving without a seatbelt or slightly over the speed limit,... are so tenuously connected to drunk driving that a stop on those grounds alone would be constitutionally suspect.” Id.

Here, the 911 call contained several similar indicia of reliability. First, the caller was reporting the information live while mostly keeping the black Sonoma in sight. Thus, his report was that of an eyewitness and was made contemporaneously with the events that he was observing. The caller also provided live updates on the vehicle’s location and provided additional detail, when asked by the dispatcher, about how the vehicle was being operated during the time that the caller was on the phone. And for the same reasons explained in Navarette, the caller’s hope to remain anonymous when making a 911 call has been undermined by modern technology and regulation. We conclude that the 911 call in this case contained sufficient indicia of reliability to allow consideration of the information contained in the call when determining whether DiGrazia had articulable suspicion to stop the vehicle.

Next, as in Navarette, the 911 call raised a reasonable inference that the vehicle was being operated by someone under the influence of drugs or alcohol. At 3:00 a.m., the driver was swerving “all over the road,” could not “keep it between the lines,” and at one point was traveling approximately 60 miles per hour in a 40 mile per hour zone. The caller’s information, therefore, provided a reasonable officer with sufficient information that “a crime was afoot,” namely, that a person on the road at 3:00 a.m. was incapable of operating his vehicle properly, thus raising a reasonable inference of drunk driving. Navarette, _U. S. at_(II) (C).

(c) Finally, to the extent that Blanks contends that DiGrazia did not have enough descriptive information to stop the correct automobile, the trial court’s implicit finding that DiGrazia stopped the truck that was the subject of the 911 call is supported by the record and not clearly erroneous. The 911 caller gave the make, model, and color of the vehicle, he followed the truck for almost five minutes on Peachtree Parkway all the way to the intersection with Crosstown; DiGrazia was parked just south of Crosstown on Peachtree Parkway; only minutes after hearing the initial dispatch to be on the lookout for the black GMC Sonoma, DiGrazia saw a truck fitting that description, traveling in the direction given by the caller; and it was 3:00 a.m. and there were very few other vehicles on the road.

In sum, the trial court did not err by concluding that DiGrazia had articulable suspicion to perform the traffic stop. See State v. Durr, 274 Ga. App. 438, 439 (1) (618 SE2d 117) (2005) (even “weaving within a lane may be justification for a traffic stop because it could indicate that the driver is under the influence of alcohol”) (citations omitted); Veal v. State, 273 Ga. App. 47, 49 (614 SE2d 143) (2005) (driving 30 mph below speed limit and weaving within a lane provided articulable suspicion of driving under the influence of alcohol).

2. Blanks also challenges the trial court’s determination that following the roadside tests for driving under the influence, DiGrazia had probable cause to arrest.

Sufficient probable cause to conduct a DUI arrest only requires that an officer have knowledge or reasonably trustworthy information that a suspect was actually in physical control of a moving vehicle, while under the influence of alcohol to a degree which renders him incapable of driving safely.

Trotter v. State, 256 Ga. App. 330, 331-332 (1) (568 SE2d 571) (2002) (footnotes omitted). “The test of probable cause requires merely a probability — less than a certainty but more than a mere suspicion or possibility” Firsanov v. State, 270 Ga. 873, 875 (3) (513 SE2d 184) (1999) (citation and punctuation omitted). And “[i]t is not necessary for the officer to actually see the suspect driving for there to be probable cause to make a DUI arrest.” Trotter, 256 Ga. App. at 332 (1) (footnote omitted).

Here, after the traffic stop, DiGrazia detected the odor of alcohol coming from Blanks’s person, and one of the field sobriety tests (the horizontal gaze nystagmus test) and the portable breath test both indicated that Blanks was under the influence of alcohol. Also, as already explained, probable cause may rest on the collective knowledge of the investigating officers as long as there is some degree of communication between them. Thus, the facts that Blanks was swerving, unable to maintain his lane, and speeding may also be considered. We therefore conclude that the totality of the above circumstances provided DiGrazia with sufficient probable cause to arrest Blanks for driving under the influence of alcohol to the degree that he was less safe. See Harkleroad v. State, 317 Ga. App. 509, 512 (1) (c) (732 SE2d 278) (2012) (defendant’s speeding, bloodshot eyes, odor of alcohol and failing the HGN test gave officer probable cause to arrest defendant for DUI); see also Cann-Hanson v. State, 223 Ga. App. 690, 691 (1) (478 SE2d 460) (1996) (“the results of the field sobriety tests constitute [ ] admissible evidence of probable cause to support [an] arrest”); compare Bostic v. State, 332 Ga. App. 604, 605 (774 SE2d 175) (2015) (driver’s admission that he had consumed one beer, his watery eyes, and a positive alco-sensor test, together with the fact that no erratic driving was observed, without more, did not constitute probable cause to arrest for DUI).

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

Decided November 3, 2015

Reconsideration denied November 18, 2015

The Cook Law Firm, B. Thomas Cook, Jr., Lubin C. An, for appellant.

JamieK. Inagawa, Solicitor-General, Joseph B. Myers, Jr., Assistant Solicitor-General, for appellee.


author: Dillard, Judge.

text:
    A15A1052.
    GORDON v. THE STATE.
    (780 SE2d 376)
   Dillard, Judge.

Kyle Lee Gordon appeals from the trial court’s decision to sentence him on a conviction for the felony offense of making a false statement after rejecting his argument that the rule of lenity applied such that he should be sentenced instead for the misdemeanor offense of making a false report of a crime. Because we agree with Gordon that the rule of lenity applies, we reverse.

The record reflects that, after waiving his right to a jury trial, Gordon pleaded guilty to one count of hit and run, but entered into a stipulation of facts on a felony charge of making a false statement, arguing that the rule of lenity applied to the charged offense. The trial court found Gordon guilty of the charged offense of making a false statement and, following argument by Gordon and the State, rejected Gordon’s argument that he should be sentenced for the misdemeanor of making a false report of a crime.

The facts, as stipulated to by the parties at the bench trial, establish that Gordon was driving a truck on the day in question while transporting four passengers, some of whom were riding in the bed of the truck. While driving, Gordon inhaled fumes from an aerosol can and subsequently collided with and caused damage to another motor vehicle. Gordon, however, left the scene of the accident.

To explain the damage that his vehicle sustained, Gordon subsequently told law enforcement that his vehicle had been struck by another vehicle that was then driven away by the other driver. Gordon also provided a signed statement to law enforcement, confirming this information; but he later admitted to the same officers that this statement was untrue. At his arrest, Gordon was charged with leaving the scene of an accident, following too closely, intentionally inhaling fumes from an air duster, and making a false report of a crime. However, he was later indicted for hit and run in violation of OCGA § 40-6-270 and making a false statement in violation of OCGA § 16-10-20.

This appeal by Gordon follows, in which he takes issue with the trial court’s determination that the rule of lenity does not apply such that he should be sentenced for the misdemeanor of making a false report of a crime rather than the felony of making a false statement. In so concluding, the trial court relied upon this Court’s prior decision in Reese v. State. Specifically, the trial court concluded that Reese was “on all fours” with the case sub judice and, although a more recent decision by this Court in McNair v. State “casts a shadow” over Reese, that Reese had not been overruled and was still binding authority. Because we agree with Gordon that the rule of lenity applies, we reverse the trial court’s ruling, and in doing so overrule Reese, which was wrongly decided on this issue.

We begin by recognizing, as our Supreme Court has explained, that the rule of lenity finds its roots in the vagueness doctrine, “which requires fair warning as to what conduct is proscribed.” The rule of lenity, more specifically, ensures that if and when an ambiguity exists in one or more statutes, such that the law exacts varying degrees of punishment for the same offense, “the ambiguity [will be] resolved in favor of [a] defendant, who will then receive the lesser punishment.” But if after applying the traditional canons of statutory construction the relevant text remains unambiguous, the rule of lenity will not apply. The fundamental inquiry when making this assessment, then, is whether the identical conduct would support a conviction under either of two crimes with differing penalties, i.e., whether the statutes “define the same offense” such that an “ambiguity [is] created by different punishments being set forth for the same crime.”

In explaining the appropriate analysis to apply in making this assessment, however, the Supreme Court of Georgia has cautioned that simply because “a single act may, as a factual matter, violate more than one penal statute does not implicate the rule of lenity.” By way of example, our Supreme Court has emphasized that,

depending upon attendant circumstances, it is possible for the act of striking another person with an object to meet the definitions of each of the crimes of: simple battery, OCGA § 16-5-23, a misdemeanor; aggravatedbattery, OCGA § 16-5-24, a felony; simple assault, OCGA § 16-5-20, a misdemeanor; aggravated assault, OCGA § 16-5-21, a felony; and malice murder, OCGA § 16-5-1, a felony.

In the foregoing circumstance, a defendant could be prosecuted for multiple crimes. But when a defendant is prosecuted for and convicted of multiple crimes based upon a single act, “the injustice that must be avoided is sentencing the defendant for more than one crime following his conviction of multiple crimes based upon the same act.”

When a defendant is convicted of multiple crimes based upon the same act, “the principle of factual merger operates to avoid the injustice.” In Drinkard v. State, our Supreme Court of Georgia adopted the “required evidence” test set forth by the Supreme Court of the United States to resolve these situations. Thus, to determine whether convictions for multiple crimes merge for purposes of sentencing,

[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

And while the foregoing analysis employed in the context of merger may be helpful in assessing whether two statutes criminalize the same conduct by defining the same offense, the “required evidence” test for merger, as established in Drinkard, is not the test that determines whether the rule of lenity applies. But in Selfe v. State, this Court cited to and relied upon Drinkard to conclude that the rule of lenity did not apply (a conclusion which was, nevertheless, correct). We now disapprove of Selfe to the extent that it can possibly be read to hold that the Drinkard “required evidence” test is the test to be used for rule-of-lenity analysis.

Instead, Quaweay v. State, from which Selfe quotes, provides a more complete explanation as to how examining a statute’s elements and, thus, the evidence required to obtain a conviction under a statute, can inform the analysis of whether two statutes criminalize the same conduct. In Quaweay, we explained that the essential requirement of the rule of lenity is that “both crimes could be proved with the same evidence.” In support of this proposition, we cited to the Supreme Court of Georgia’s decision in Brown v. State, which, in relevant part, holds that “[b]ecause the same conduct constituted both a felony and a misdemeanor, the rule of lenity require [d] that [the appellant] be subjected to the penalties for the misdemeanor, rather than the felony.” And earlier in Brown, our Supreme Court determined that, “[u]sing the same evidence, a reasonable trier of fact could have found beyond a reasonable doubt that [the defendant’s] conduct violated” either of two statutes. Thus, having determined that the conduct for which the defendant was indicted and convicted “would have supported either a felony or misdemeanor conviction, [the Supreme Court] next examine [d] the consequences of this overlap,” and determined that the rule of lenity applied.

Turning to Reese v. State, there, we erroneously relied solely upon Selfe’s use of the Drinkard analysis to conclude that the rule of lenity does not apply to the same statutes at issue in this case. In Reese, the totality of our analysis on this question was as follows:

Reese was convicted of making a false statement under OCGA § 16-10-20, which provides that a person who “knowingly and willfully” makes a false statement [“]in any matter within the jurisdiction of any department or agency of state government or of the government of any county, city, or other political subdivision of this state shall, upon conviction thereof, be punished by a fine of not more than $1,000.00 or by imprisonment for not less than one nor more than five years, or both.[”] Neither the false report of a crime statute nor the false report ofa theft statute (OCGA §§ 16-10-26 and 40-3-92) contains the false statement statute’s element that the falsity concern a matter within the jurisdiction of a governmental entity. For this reason, the rule of lenity cannot apply.

Because we erred in reaching that conclusion, as will be clear from our analysis infra, we now overrule Reese.

In this matter, in order to assess whether the rule of lenity applies, we necessarily begin our analysis with “familiar and binding canons of construction.” Indeed, in considering the meaning of a statute, our charge as an appellate court is to “presume that the General Assembly meant what it said and said what it meant.” To that end, we must “afford the statutory text its plain and ordinary meaning, consider the text contextually, and read the text in its most natural and reasonable way, as an ordinary speaker of the English language would.” In other words, when the language of a statute is plain and susceptible of only one natural and reasonable construction, “courts must construe the statute accordingly.” Finally, we are also mindful of our duty to “construe statutes to give sensible and intelligent effect to all of their provisions and to refrain from any interpretation which renders any part of the statutes meaningless.”

Turning to the statutes at issue, the felony offense of making a false statement, for which Gordon was indicted, convicted, and sentenced, is committed when a person

knowingly and willfully . . . makes a false, fictitious, or fraudulent statement or representation[ ]... in any matter within the jurisdiction of any department or agency of state government or of the government of any county, city, or other political subdivision of this state . . . ,

But Gordon argued below, and argues yet again on appeal, that the rule of lenity required that he be sentenced for committing the misdemeanor offense of making a false report of a crime, which is committed when a person “willfully and knowingly gives or causes a false report of a crime to be given to any law enforcement officer or agency of this state .. . ,”

In Banta v. State, our Supreme Court determined that the rule of lenity does not apply as between the statutes criminalizing the making of a false statement and misdemeanor obstruction of an officer because the two statutes do not criminalize the same conduct. The Court observed that the misdemeanor obstruction statute “may be violated in a number of ways; it does not require deception or a false representation.” But conversely, it is not possible for the State to “establish that OCGA § 16-10-20 has been violated without establishing a deceitful act.” The Court thus concluded that the two statutes do not criminalize the same conduct.

On the other hand, in Dawkins v. State, this Court concluded that the rule of lenity applies as between the statutes that criminalize the making of a false statement and giving a false name to a police officer. There, we determined that, viewing the transaction between the defendant and the police officer as a whole, it was “apparent that the same evidence could be used to prove both the offense of giving a false name and the offense of making a false statement” and that “[u]sing this evidence, a reasonable trier of fact could have found beyond a reasonable doubt that [the defendant’s] conduct violated either OCGA § 16-10-20, a felony, or OCGA § 16-10-25, a misdemean- or.” Thus, the same conduct constituted both a felony and a misdemeanor, and the rule of lenity applied due to the uncertainty of which penal statute applied.

Here, the State accused Gordon, via indictment, of making a false statement in violation of OCGA § 16-10-20, in that he “did knowingly and willfully make a false statement, to wit: that his vehicle had been hit by another vehicle near Dalton High School, in a matter within the jurisdiction of the government of a city, to wit: the City of Dalton Police Department . . . .” Upon review of the two statutes at issue, although there are many ways that the crime of making a false statement may be committed, Gordon’s conduct, as charged, subjected him to prosecution and sentencing under both OCGA §§ 16-10-20 and 16-10-26.Indeed, Gordon wilfully andknowingly made a false statement to law-enforcement officers by falsely reporting to those officers a crime that he alleged to have occurred in their jurisdiction. Thus, because these two statutes provide different grades of punishment for the same criminal conduct, Gordon is entitled to the rule of lenity. We therefore reverse Gordon’s conviction for felony false statement and remand for resentencing under the misdemeanor false-report-of-a-crime statute.

Judgment reversed and case remanded for resentencing.

Doyle, C. J., Andrews, P. J., Barnes, P. J., Ellington, P. J., Phipps, P. J., Miller, McFadden, Boggs, Ray, Branch and McMillian, JJ., concur.

Decided November 18, 2015.

Michael R. McCarthy, for appellant.

Herbert M. Poston, Jr., District Attorney, George J. Souther, John S. Helton, Susan L. Franklin, Assistant District Attorneys, for appellee.

        See OCGA § 16-10-20.

        See OCGA § 16-10-26.

        See OCGA § 40-6-270.

       This served as the foundation for Gordon’s violation of OCGA § 40-6-270.

       The record does not indicate how or why Gordon came to he in contact with law enforcement after leaving the scene of the hit and run.

       296 Ga. App. 186 (674 SE2d 68) (2009).

       326 Ga. App. 516 (757 SE2d 141) (2014).

        See Court of Appeals Rule 33 (a).

        McNair v. State, 293 Ga. 282, 283 (745 SE2d 646) (2013) (punctuation omitted); see also United States v. Lanier, 520 U. S. 259, 266 (II) (117 SCt 1219, 137 LE2d 432) (1997) (“[A]s a sort of ‘junior version of the vagueness doctrine,’. . . the canon of strict construction of criminal statutes, or rule of lenity, ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered.” (citation omitted)); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 299 (1st ed. 2012) (noting that the rule-of-lenity canon is justified by the well-established precept that “when the government means to punish, its commands must be reasonably clear”).

        McNair, 293 Ga. at 283 (punctuation omitted); see also Dixon v. State, 278 Ga. 4,7 (1) (d) (596 SE2d 147) (2004) (“The rule derives from the instinctive distaste against men languishing in prison unless the lawmaker has clearly said that they should.” (punctuation omitted));
        Brown v. State, 276 Ga. 606, 608-09 (2) (581 SE2d 35) (2003) (“Where any uncertainty develops as to which penal clause is applicable, the accused is entitled to have the lesser of the two penalties administered.”).

        See McNair, 293 Ga. at 284; Banta v. State, 281 Ga. 615, 617 (2) (642 SE2d 51) (2007); see also United States v. Shabani, 513 U. S. 10, 17 (II) (115 SCt 382, 130 LE2d 225) (1994) (“The rule of lenity, however, applies only when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute.” (citation and punctuation omitted)); United States v. Johnson, 655 F3d 594, 606 (II) (B) (2) (7th Cir. 2011) (holding that the rule of lenity does not require a court to read a criminal statute “more narrowly than its plain terms suggest”). But see Scalia & Garner, supra note 9, at 298 (“The main difficulty with the rule of lenity is the uncertainty of its application. Its operation would be relatively clear if the rule were automatically applied at the outset of the textual inquiry, before any other rules of interpretation were invoked to resolve ambiguity. Treating it as a clear-statement rule would comport with the original basis for the canon and would provide considerable certainty. But that is not the approach the cases have taken.”).

        See Banta, 281 Ga. at 618 (2) (“Simply put, the two statutes do not define the same offense[;]... [t]hus, the two defined crimes do not address the same criminal conduct, there is no ambiguity created by different punishments being set forth for the same crime, and the rule of lenity does not apply.” (citations omitted) (emphasis supplied)); Dixon, 278 Ga. at 6 (1) (a) (applying rule of lenity when “the State retained the discretion to prosecute the exact same conduct as either” a misdemeanor or a felony (emphasis supplied)); see also Dawkins v. State, 278 Ga. App. 343, 345 (629 SE2d45) (2006) (“[T]he essential requirement... is that both crimes could be proved with the same evidence.” (punctuation omitted)).

        Banta, 281 Ga. at 618 (2).

        Id.

        Id.

        Id. (citing Green v. State, 279 Ga. 455 (614 SE2d 751) (2005); Washington v. State, 274 Ga. 428 (554 SE2d 173) (2001); Jackson v. State, 272 Ga. 429 (531 SE2d 700) (2000); Rittenhouse v. State, 272 Ga. 78 (526 SE2d 342) (2000); Spear v. State, 270 Ga. 628 (513 SE2d 489) (1999)).

        See OCGA § 16-1-7 (a) (“When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if[ ] [o]ne crime is included in the other . . . .”); Banta, 281 Ga. at 618 (2).

        Banta, 281 Ga. at 618 (2); see also State v. Tiraboschi, 269 Ga. 812, 813-14 (504 SE2d 689) (1998).

        Banta, 281 Ga. at 618 (2); see also Young v. State, 280 Ga. 65, 66-67 (2) (623 SB2d 491) (2005); Montes v. State, 262 Ga. 473, 474 (1) (421 SE2d 710) (1992).

       281 Ga. 211 (636 SE2d 530) (2006).

        Id. at 214; see also Blockburger v. United States, 284 U. S. 299 (52 SCt 180, 76 LE 306) (1932).

        Drinkard, 281 Ga. at 215 (quoting Blockburger, 284 U. S. at 304).

        See, e.g., Chynoweth v. State, 331 Ga. App. 123, 126 (2) (768 SE2d 536) (2015) (holding that OCGA § 16-10-56 (a), riot in a penal institution, and OCGA § 16-10-24 (b), obstruction of a law-enforcement officer by offering violence, “do not define the same offense and are unambiguous”); McNair, 326 Ga. App. at 521 (“The[ ] same operative facts satisfy the essential elements of both OCGA § 16-9-31 (a) (1) and OCGA § 16-9-121 (a) (1), neither of which requires proof of any fact that the other does not. Thus, although there are other ways in which either crime could have been committed, [the appellant’s] conduct, as charged, subjected him to prosecution and sentencing under both OCGA § 16-9-31 (a) (1) and OCGA § 16-9-121 (a) (1). And because these statutes provide different grades of punishment for the same criminal acts, [the appellant] is entitled to the rule of lenity.” (footnotes omitted)); Metts v. State, 297 Ga. App. 330, 336-37 (6) (677 SE2d 377) (2009) (looking to elements of offenses of child molestation and furnishing or disseminating harmful material to a minor to determine that the statutes at issue criminalized different conduct), abrogated on other grounds by Stephens v. State, 289 Ga. 758 (716 SE2d 154) (2011); Velasquez v. State, 276 Ga. App. 527, 528-29 (1) (623 SE2d 721) (2005) (looking to the elements of offenses of possessing a false ID and of forgery in the second degree to determine that because the two offenses “plainly require different conduct,” the rule of lenity did not apply (i.e., the forgery statute required “intent to defraud” while the false ID statute only required that the defendant “knowingly possess, display, or use any false, fictitious, fraudulent, or altered identification document”)); see also White v. State, 319 Ga. App. 530, 532-33 (2) (737 SE2d 324) (2013).

        Cf. Banta, 281 Ga. at 618 (2) (analyzing whether the rule of lenity applied to two statutes and determining that it did not because “the two statutes do not define the same offense,” then proceeding to explain that when a single act violates more than one penal statute as a factual matter, this does not implicate the rule of lenity because the injustice in that situation is avoided by application of the principle of factual merger).

       2 90 Ga. App. 857 (660 SE2d 727) (2008).

        Id. at 863 (3) (relying upon Drinkard to support the holding that, “[hjere, as argued by the State, Count 2 required not only proof that [the defendant] furnished the matter to someone he believed was 15 years old, but that he did it with the intent to arouse and satisfy his own sexual desires, an element not included in the misdemeanor offense”); see also Walker v. State, 289 Ga. App. 879, 881-82 (5) (658 SE2d 375) (2008) (limiting analysis of whether rule of lenity applied to a determination that one statute required, among other things, an element that was not a required element of the other statute).

       274 Ga. App. 657 (618 SE2d 707) (2005).

       290 Ga. App. at 862 (3).

       274 Ga. App. at 658; see Dawkins, 278 Ga. App. at 345 (quoting Quaweay for the same proposition); Washington v. State, 283 Ga. App. 570, 572-73 (4) (642 SE2d 199) (2007) (same); Johnson v. State, 283 Ga. App. 99, 107 (5) (640 SE2d 644) (2006) (same); see also McNair, 326 Ga. App. at 519 (relying upon Quaweay’s progeny for the same proposition); White, 319 Ga. App. at 532 (2) (same); Rollf v. State, 314 Ga. App. 596, 598 (2) (b) (724 SE2d 881) (2012) (same), disapproved of on other grounds by McNair, 293 Ga. 282; Snow v. State, 318 Ga. App. 131, 134 (2) (733 SE2d428) (2012) (same); Staib v. State, 309 Ga. App. 785, 793 (3) (711 SE2d 362) (2011) (same); Rouen v. State, 312 Ga. App. 8, 11 (3) (717 SE2d 519) (2011) (same), disapproved of on other grounds by McNair, 293 Ga. 282; Falagian v. State, 300 Ga. App. 187, 190-91 (2) (684 SE2d 340) (2009) (same), disapproved of on other grounds by McNair, 293 Ga. 282; Diaz v. State, 296 Ga. App. 589, 591 (1) (676 SE2d 252) (2009) (same).

       2 76 Ga. 606 (581 SE2d 35) (2003).

        Id. at 609 (2) (emphasis supplied).

        Id. at 608 (1) (b).

        Id.

        Id. at 609 (2).

       2 96 Ga. App. 186 (674 SE2d 68) (2009).

        Id. at 187-88 (3) (a) (punctuation omitted).

        Martinez v. State, 325 Ga. App. 267, 273 (2) (750 SE2d 504) (2013); see also OCGA § 1-3-1.

        Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (quoting Arby’s Restaurant Group, Inc. v. McRae, 292 Ga. 243, 245 (1) (734 SE2d 55) (2012)); accord Martinez, 325 Ga. App. at 273 (2); see also OCGA § 1-3-1 (b) (“In all interpretations of statutes, the ordinary signification shall he applied to all words . . . .”).

        Martinez, 325 Ga. App. at 273 (2) (punctuation and footnotes omitted); see Deal, 294 Ga. at 172 (1) (a) (“[W]e must afford the statutory text its plain and ordinary meaning[.]” (punctuation omitted)); Luangkhot v. State, 292 Ga. 423, 424 (1) (736 SE2d 397) (2013) (“[T]he ordinary signification shall be applied to all words.” (punctuation omitted)); Hendry v. Hendry, 292 Ga. 1, 3 (1) (734 SE2d 46) (2012) (“When we consider the meaning of a statutory provision, we do not read it in isolation, but rather, we read it in the context of the other statutory provisions of which it is a part.”).

        Luangkhot, 292 Ga. at 424 (1) (punctuation omitted); accord Martinez, 325 Ga. App. at 273 (2); see also Deal, 294 Ga. at 173 (1) (a) (“[I]f the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.” (punctuation omitted)).

        R.D. Brown Contractors, Inc. v. Bd. of Ed. of Columbia Cty., 280 Ga. 210, 212 (626 SE2d 471) (2006) (punctuation omitted); accord Motors Acceptance Corp. v. Rozier, 278 Ga. 52, 53 (1) (597 SE2d 367) (2004); State v. English, 276 Ga. 343, 348 (578 SE2d 413) (2003).

       OCGA § 16-10-20.

       OCGA § 16-10-26.

         281 Ga. 615 (642 SE2d 51) (2007).

        See OCGA § 16-10-20.

        See OCGA § 16-10-24 (a).

        Banta, 281 Ga. at 617-18 (2).

        Id. at 618 (2).

        Id.

       278 Ga. App. 343 (629 SE2d 45) (2006).

        See OCGA § 16-10-20.

        See OCGA § 16-10-25 (“Aperson who gives a false name, address, or date of birth to a law enforcement officer in the lawful discharge of his official duties with the intent of misleading the officer as to his identity or birthdate is guilty of a misdemeanor”).

        Dawkins, 278 Ga. App. at 345-46.

        Id. at 346.

        See Haley v. State, 289 Ga. 515, 527 (2) (b) (712 SE2d 838) (2011) (holding that OCGA § 16-10-20 requires “proof that the defendant knowingly and willfully made a false statement and that he knowingly and willfully did so in a matter within the jurisdiction of a state or local department or agency,” but also noting that OCGA § 16-10-20 “does not require proof that the defendant made the false statement directly to the government agency, although in such cases it would normally be undisputed that the defendant knew and intended that the statement came within the jurisdiction of the agency”); Watkins v. State, 191 Ga. App. 87, 89 (2) (381 SE2d 45) (1989) (“By stating to the officer that [someone else] had been driving the truck, when, in fact, appellant had been the driver, appellant made a false statement in a matter within the jurisdiction of a department of state government. [OCGA § 16-10-20] was intended to discourage the making of affirmatively false statements.” (citation omitted)).

        See McNair, 326 Ga.App. at 521 (“[Although there are other ways in which either crime could have been committed, [the defendant’s] conduct, as charged, subjected him to prosecution and sentencing under both [statutes at issue].”); see also Robert E. Cleary, Jr., Kurtz Criminal Offenses & Defenses in Georgia, Impending Arrest or Prosecution (III) (F) (False Report of a Crime) (2014 ed.) (“The final provision which punishes interference with arrest or prosecution of a criminal offense is §16-10-26 which makes it a misdemeanor to give a false report or cause a false report of crime to be given to a law enforcement officer or agency of the state. The behavior it punishes seems likely to be identical to that under the crime of false statements, § 16-10-20, which is a felony.” (footnote omitted)).

        See OCGA § 16-10-20 (providing that a person makes a false statement when he or she “knowingly and willfully .. . makes a false, fictitious, or fraudulent statement or representation] ] ... in any matter within the jurisdiction of any department or agency of state government or of the government of any county, city, or other political subdivision of this state ....”); OCGA § 16-10-26 (providing that a person makes a false report of a crime when he or she “willfully and knowingly gives or causes a false report of a crime to be given to any law enforcement officer or agency of this state ”). The State’s argument that the indictment could not support a conviction for false report of a crime is unavailing. Specifically, the State contends that the rule-of-lenity argument is not ripe for discussion because the indictment does not charge Gordon “with the statement that the other person, whom stuck [sic] his vehicle, left the scene and failed to exchange the information required under OCGA § 40-6-270.” Pretermitting the fact that the State fails to support this argument with citation to authority, even if Gordon had made only a bare (false) assertion that another vehicle struck his, this would suggest a violation of any number of the uniform rules of the road by one or both drivers. See OCGA § 40-6-1 et seq.

        See Dixon, 278 Ga. at 7 (1) (d); McNair, 326 Ga. App. at 521; Dawkins, 278 Ga. App. at 346.

        See McNair, 326 Ga. App. at 521; Dawkins, 278 Ga. App. at 346.


text:
    A15A1066.
    GASKINS v. BERRY’S BOAT DOCK et al.
    (780 SE2d 83)
   Branch, Judge.

James Gaskins appeals from the grant of summary judgment in favor of the defendants in a suit arising from his fall when a pipe and chain railing on a ramp to a floating dock gave way. For the reasons stated below, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

Construed in favor of Gaskins, the record shows that Berry’s Boat Dock is owned by Catherine and Robert Berry and that it operates a facility on Lake Jackson that includes, among other things, a level pedestrian walkway and a ramp that leads to a floating dock. At the time of the accident, the lake water level was low and the floating dock was significantly lower than the walkway, causing the ramp to have a fairly steep pitch. Each side of the ramp had a series of three standing metal pipes (or posts) with chain running between them leading from the top of the ramp to close to where the ramp adjoined the floating dock. The ramp, pipe, and chains were installed by the owner in 1994 and 1995. A second similar ramp was blocked by warning tape on the day of the incident because it had collapsed.

At about 6:30 a.m. on February 5, 2012, after unloading a boat and parking his truck, Gaskins walked across the level walkway and turned and stepped onto the ramp that leads to the floating dock. As he stepped onto the ramp, Gaskins grabbed a metal post at the top of the ramp to steady himself as he started down the incline. His right foot then slipped, and as he lost his balance, he either continued to hold onto or re-grabbed one of the posts in an attempt to keep from falling down. When he did, the post broke off from the ramp, and Gaskins fell, ended up in the lake, and suffered an injury. Gaskins’ fall took down pipe and chain from both sides of the ramp. Gaskins had used the same ramp to get to his boat many times in the past both when the lake was equally low and when it was higher, and he had traversed the same ramp two weeks earlier when the lake was at the same lower level.

Gaskins hired a professional inspector who studied the pipe and chain railing after the incident and concluded, among other things, that the pipe and chain rail was attached to rotten wood, that the failure occurred when the bolts used to attach the pipe to the wood base “pulled straight thru the weathered and deteriorated wood,” and that the wood had lost its structural integrity. He also opined that the facilities in general, including the “gangway” or ramp, were in disrepair, showed signs of lumber failure due to the wood rotting under the post connectors, and were in need of substantial maintenance and repair.

The trial court granted summary judgment in favor of the defendants for several reasons. First, Robert Berry testified that the pipe and chain railing was meant only to be decorative, not a safety handrail, and the court concluded that photographs of the ramp “show clearly that the post was not placed there for purposes of serving as a handrail but was merely one of a series of metal posts through which a chain ran, and no reasonable person would think that the chain and posts were placed there for safety purposes.” Second, Gaskins could not recover because he had successfully negotiated the ramp on at least six occasions when it had a similar pitch and because the condition of the ramp was “just as obvious and open to [Gaskins] as it was the owners.” Third, because Gaskins admitted that his foot slipped, “he would have fallen anyway, the presence or absence of the post in this case is not material to the issue.” Fourth, even if the post was a “material cause” of Gaskins’ injury, and assuming that the defendants had constructive notice of the hazard, “the post is a static defect,” and therefore Gaskins should have seen it and realized the risks involved. In sum, the court concluded, Gaskins had “knowledge of the danger at least equal to that of the [defendants.” The court also concluded that Gaskins had not shown that the defendants violated applicable building codes and had not created a private or public nuisance.

Pretermitting whether the defendants violated building codes or created a nuisance, for the reasons that follow, we hold that the trial court erred by concluding that Gaskins had equal knowledge of the alleged defect in the railing and by concluding as a matter of fact and law that the pipe and chain railing was not a handrail meant for safety purposes.

A property owner is liable to an invitee, such as Gaskins, “for injuries caused by [the property owner’s] failure to exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1.

In order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.

Avery v. Cleveland Ave. Motel, 239 Ga. App. 644, 645 (2) (521 SE2d 668) (1999), quoting Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (b) (493 SE2d 403) (1997). See also American Multi-Cinema v. Brown, 285 Ga. 442, 444 (2) (679 SE2d 25) (2009). Also, “the owner’s duty to exercise ordinary care includes inspecting the premises to discover possible dangerous conditions of which the owner does not have actual knowledge, and taking reasonable precautions to protect invitees from dangers foreseeable from the use of the premises.” Hicks v. Walker, 262 Ga. App. 216, 218 (585 SE2d 83) (2003) (footnote omitted); see also Davis v. GBR Properties, 233 Ga. App. 550, 552 (1) (504 SE2d 204) (1998) (“[A]n invitee who responds to the owner/occupier’s invitation and enters the premises does so pursuant to an implied representation or assurance that the premises have been made ready and safe for the invitee’s reception, and the entering invitee is entitled to expect that the owner/occupier has exercised and will continue to exercise reasonable care to make the premises safe.”) (citation and punctuation omitted).

Although there may be no evidence that the defendants had actual knowledge of a defect in the pipe and chain railing, there is an issue of fact as to whether they had constructive knowledge that the pipe posts were attached to rotten and deteriorated wood.

Constructive knowledge may be inferred when there is evidence that the owner lacked a reasonable inspection procedure. In order to prevail at summary judgment based on lack of constructive knowledge, the owner must demonstrate not only that it had a reasonable inspection program in place, but that such program was actually carried out at the time of the incident.

Decided November 18, 2015

Richard D. Hobbs, Kelli M. Bailey, for appellant.

Alaina S. Howard, Anthony E. DeNapoli, for appellees.

Avery, 239 Ga. App. at 645-646 (2) (citation and punctuation omitted). In Avery, summary judgment was properly denied in a suit involving the collapse of a handrail because the defendants “failed to sufficiently establish that procedures were in place to inspect the stair railings.” Id. at 646 (2). The same is true here. At his deposition, Robert Berry testified that he did not make regular inspections of the premises; rather “if you see anything that needs to be fixed, you fix it.” He testified “there’s nothing documented saying I go out there . . . every day, once a week or whatnot. It’s just I’m out there.” Thus, the defendants did not establish as a matter of undisputed fact that they had a reasonable inspection procedure or that the procedure was carried out at the time of the accident. Accordingly, there is an issue of fact as to whether the defendants had constructive knowledge of the fact that the pipe posts were attached to rotten wood. For the same reason, there is an issue of fact as to whether Gaskins reasonably could have known of such a defect even if he did traverse the same ramp on a regular occasion. See Paul v. Sharpe, 181 Ga. App. 443, 446 (2) (352 SE2d 626) (1987) (“[plaintiff] was not negligent in leaning against the deceptively standing-but-loose railing”) (citation omitted).

As for the argument that the pipe and chain railing only was intended for decorative use, that issue is plainly a question of fact, as is the question of whether a reasonable person in Gaskins’ position would have assumed that he could steady himself by holding onto one of the posts. In other words, there is an issue of fact as to whether Gaskins unreasonably exposed himself to danger on a severely sloped ramp by holding onto one of the posts to try to prevent himself from falling.

Judgment reversed.

Andrews, P. J., and Miller, J., concur.

       Gaskins alleges that the defect was not the ramp itself, “but the construction, maintenance and condition of the posts and chains.”


author: DOYLE, Chief Judge.

text:
    A15A1072.
    ROBINSON v. THE STATE.
    (780 SE2d 86)
   DOYLE, Chief Judge.

In June 1998, Jakeith Robinson, the alleged getaway driver in the robbery of an armored car driver, was indicted and tried for malice murder, felony murder, armed robbery, two counts of aggravated assault, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a felony. At the conclusion of the trial, the jury returned not guilty verdicts as to the murder, felony murder, and both aggravated assault charges, but could not reach a verdict on the charges of armed robbery and possession of a firearm during the commission of a felony.

Thereafter, in September 1999, Robinson was tried as a co-defendant for armed robbery and the weapons charge. Robinson unsuccessfully moved for severance of the trials, arguing that based on the State’s arguments that he was a co-conspirator and/or party to the armed robbery, the issue was precluded from retrial. During the trial, co-defendant Xavier Womack was tried for malice murder, felony murder, armed robbery, two counts of aggravated assault, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon, while Robinson was retried for armed robbery and possession of a firearm during the commission of a crime. The jury found Robinson guilty of armed robbery and acquitted him of possession of a firearm during a crime and possession of a firearm by a convicted felon. Robinson was sentenced to life impris: onment.

Robinson filed a motion for new trial and two amended motions for new trial, which motions ultimately were denied by the trial court in September 2001.

Robinson filed his notice of appeal in 2001. After waiting 14 years for his appeal, Robinson now argues that (1) the State was barred by the doctrines of issue preclusion, collateral estoppel, and double jeopardy from arguing that he was a party to the crime; (2) the trial court abused its discretion by denying his motion to sever his trial from the trial of his co-defendant, Womack; and (3) the trial court abused its discretion by prohibiting him from informing the jury of his acquittal of the murder and aggravated assault charges for which Womack was being tried during the joint trial. For the reasons that follow, we reverse.

1. As an initial matter, we note that Robinson’s conviction was entered on September 15, 1999, and his motion for new trial was denied on September 28,2001. Robinson’s timely notice of appeal was filed on October 1, 2001, and three years later, in an August 2004 hearing on Robinson’s motion to amend sentence, the trial transcripts had been completed, but the appeal remained to be docketed. Staggeringly, ten-and-a-half additional years elapsed before the record was docketed with this Court, and no explanation for the extreme delay appears in the record. We take yet another opportunity to remind the bench and bar that

[t]his sort of extraordinary post-conviction, pre-appeal delay puts at risk the rights of defendants and crime victims and the validity of convictions obtained after a full trial. It is the duty of all those involved in the criminal justice system, including trial courts and prosecutors as well as defense counsel and defendants, to ensure that the appropriate post-conviction motions are filed, litigated, and decided without unnecessary delay. That duty unfortunately was not fulfilled in this case.

We now are faced with an individual who has been in prison for over 15 years for a conviction that, as we explain in the following division, must be reversed.

2. Robinson argues that the trial court erred by overruling his objection to the State’s attempt to prove armed robbery via a party to a crime theory because the issue was barred from re-litigation under collateral estoppel, res judicata, or double jeopardy based on the acquittal of Robinson under this theory in the first trial. We agree.

To conduct an issue-preclusion analysis, courts examine the verdict and trial record to determine the facts that the jury necessarily decided in returning its verdict of acquittal and then determine whether the previously determined facts constituted an essential element of the second offense. The doctrine of collateral estoppel will not bar a retrial unless the record of the prior proceeding affirmatively demonstrates that an issue involved in the second trial was definitely determined in the former trial; the possibility that it may have been does not prevent the relitigation of that issue.

In December 1995, John Hamilton was transferring money from a bank to his armored car when Toilette shot him in the back of the head, grabbed a bag of money, and attempted to escape across the street. Hamilton died at the scene. While Toilette was attempting to flee, the driver of the armored car and a security guard unconnected with the armored car separately fired at Toilette, who dropped the bag of money, and another individual returned fire at the armored car driver from the direction in which Toilette had fled.

The security guard chased Toilette and, while reloading his weapon, saw a dark blue car speed away from the scene. The security guard saw another individual across the street who ran toward the area the blue car would later leave, and he heard a door slam before the car sped away. The car did not pick up Toilette, and he was apprehended near the scene. Toilette told police that he had been staying at a location on Sims Street, and officers executed a search warrant for the residence, where they found Womack, Womack’s brother Brian, and another individual named Ashley. Police only arrested Womack and released Brian and Ashley. Robinson was arrested in January 1996 at a relative’s home in Auburn, Alabama.

During Robinson’s first trial, the State proceeded against him under theories that he conspired with Toilette and Womack or was a party to the crimes, asserting that although no one saw Robinson at the scene of the shooting, he was the getaway driver and had plotted the robbery with his co-defendants, making him criminally liable for their actions at the scene of the crime. Although Robinson did not testify during the trial, his defense was that although he was friends with Womack and Toilette, he was not involved in the incident at all, that only one witness testified that there may have been three men in a car together prior to the incident but no one else testified that three individuals were at the scene, and that other individuals were found with Womack and in the vicinity of multiple weapons at the time officers arrested Womack.

At the first trial, one witness saw three men sitting in a blue Ford Mustang near the scene before the crime, but did not see the vehicle leave, could not identify the occupants, and did not see any of the men commit the crimes. Robinson’s girlfriend at the time testified that on the morning of the incident, Robinson went out to get their child diapers, came home, left again, and then returned with Womack, and the two men were acting upset. She testified that Robinson said that he, Womack, and Toilette tried to rob an armored car, a man was shot, and Toilette was left at the scene. In her initial statement to police, however, she stated that after going out to get diapers, Robinson had given his car keys to someone else, that he later left the apartment and did not return for the rest of the day, and that he never admitted involvement in the incident.

On December 25, a blue Mustang belonging to Robinson was impounded by officers from Linell Denson’s home in Seale, Alabama. Denson testified that Robinson called him sometime before Christmas in December 1995 to ask that Denson fix his car, which would not go into first gear; after Denson and Robinson traveled from Robinson’s home in Phenix City, Alabama, to Seale, Alabama, Denson transported Robinson back to Phenix City. Officers came to Denson’s home on Christmas Day and impounded the car, which date Denson testified was approximately three days to one week after Robinson had brought the car to him, but Denson could not specifically recall the exact date.

At the close of evidence, the j ury acquitted Robinson of the malice murder, felony murder, and both aggravated assault charges, but it failed to reach a verdict on the charges of armed robbery and possession of a firearm during a felony; the bifurcated felon in possession of a weapon charge was not presented.

At the second trial, the State again argued that Robinson was a party to the crime of armed robbery and conspired to commit the crime by acting as the getaway driver for Womack and Toilette. Prior to trial, the State moved to rejoin Robinson’s prosecution with that of Womack because Toilette had been sentenced to death and the State had waived the death penalty as to Womack and Robinson. During the hearing on the issue of severing Robinson’s second trial from Womack’s first, the State argued that “the same evidence would be used against both of them for the most part. The evidence would show that they were co-conspirators, and both participated in the murder and armed robbery, not as the actual killers, but as co-conspirators.” During the trial, the State attempted to compel Toilette to testify to Robinson’s involvement as a conspirator/party to a crime, and it again argued that Robinson was guilty of armed robbery under those theories. The State also requested charges on conspiracy and party to a crime, just as it had in Robinson’s first trial.

When, as here,

a previous judgment of acquittal was based upon a general verdict, as is usually the case, a court must ask whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration. When making this determination, a court must examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter. This inquiry must be set in a practical frame, and a court is not to conduct its analysis with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality.

“[Moreover, in the context of a mixed-verdict case,] the jury’s failure to reach a verdict on certain counts [is] a nonevent that ha[s] no bearing on the determination of what issues had been determined by virtue of the verdicts that were reached.”

In its meager response brief, the State does not engage in any analysis of whether the jury necessarily decided the issue of whether Robinson was a party to the crime of armed robbery in the first trial as explained by Roesser or Ashe. Instead, the State summarily argues that (1) it did not hold back in charges or counts in an attempt to prosecute at a later date; (2) the armed robbery count was indicted by a grand jury and not a lesser included count; and (3) the armed robbery was not a re-indictment of a previously unincluded lesser charge after the first acquittal. None of those arguments affects our issue-preclusion analysis.

When Robinson raised the issue of issue preclusion and collateral estoppel during the second trial, the trial court responded that “conspiracy [is not necessary] to commit armed robbery.” The State, however, did not attempt to prove that Robinson committed armed robbery in any other way than via the same theory propounded during the first trial. At the motion for new trial, the court denied Robinson’s motion as to this issue, finding that the jury could have determined that Robinson did not conspire to commit aggravated assault or murder, but he did conspire to commit armed robbery. This was a conflation of the issue of inconsistent verdicts with issue preclusion and collateral estoppel of the party to a crime theory. As Judge Pryor explained in Ohayon,

[t]he problem with this argument is that it presumes that the relevant standard is a subjective one — whether [Robinson’s] jury grounded its verdict on an irrational understanding of [party to a crime]. Ashe requires that we apply an objective standard and ask “whether a rational jury” exposed to the same “pleadings, evidence, charge, and other relevant matter” “could have grounded its verdict upon an issue other than” the one [Robinson] seeks to foreclose from consideration. Because we ask what a rational jury would have done, the possibility that the jury’s verdict rested upon error plays no part in our analysis. A rational jury could not have grounded its verdict on a misunderstanding of [participation in a conspiracy] or on any other mistake. Because collateral estoppel is grounded in the Double Jeopardy Clause of the Fifth Amendment the government is barred from correcting inconsistent verdicts by a single jury, even those based on mistake, compromise, or lenity. The possibility of jury nullification also plays no part in collateral estoppel analysis.

Decided November 18, 2015.

Michael S. Katz, for appellant.

Julia F. Slater, District Attorney, Robert B. Bickerstaff II, Assistant District Attorney, for appellee.

Thus, the fact that the first jury could have returned inconsistent verdicts and convicted Robinson of armed robbery while acquitting him of the charges arising from Hamilton’s death during the robbery because it decided to nullify on the murder in the face of the clear requirement it convict under the party to a crime instruction if it found that he participated in the robbery as the getaway driver, we do not accept such an inconsistency as rational under the lens of issue preclusion. The only rational conclusion from the first trial is that the jury determined that Robinson was not a party to the crimes, and therefore, the State could not propound these theories against him in the second trial for armed robbery.

3. Based on our conclusion in Division 2, we need not address Robinson’s remaining enumerations.

Judgment reversed.

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

       OCGA § 16-5-1 (a).

       OCGA § 16-5-1 (c).

       OCGA § 16-8-41 (a).

       OCGA § 16-5-21 (b) (1), (b) (2).

       OCGA § 16-11-131 (b).

       OCGA § 16-11-106 (b) (1).

       In the 1998 trial, pursuant to OCGA § 17-8-4 (a), Robinson was tried separately from his co-defendants, Leon Toilette and Xavier Womack, because the State sought the death penalty against those defendants.

       For our review of Womack’s appeal, see Womack v. State, 273 Ga. App. 300 (614 SE2d 909) (2005).

       Throughout both trials and in most of the pleadings, the parties refer to conspirator and party to a crime interchangeably. Although they are treated differently under Georgia law, Robinson was not actually charged with conspiracy; therefore, we address these issues as if the terms refer only to party to a crime as defined in Georgia jurisprudence.

       Toilette is currently awaiting execution after pleading guilty to the charges and being sentenced to the death penalty. See Tollette v. State, 280 Ga. 100 (621 SE2d 742) (2005), Tollette v. Warden, Case No. 14-00110 (M.D. Ga. 2014) (denying Toilette’s motion for habeas corpus).

       We note that Robinson dismissed his appellate attorney and proceeded pro se at the hearing on the motion to amend his sentence, which perhaps caused some of the delay, but did not justify ten years’ worth.

       (Punctuation omitted.) Waye v. State, 326 Ga. App. 202, 202-203 (1) (756 SE2d 287) (2014), quoting Morgan v. State, 290 Ga. 788, 789, n. 2 (725 SE2d 255) (2012). See also Shank v. State, 290 Ga. 844, 849 (5) (c) (725 SE2d 246) (2012); Murphy v. State, 290 Ga. 459, n. 2 (722 SE2d 51) (2012); Hill v. State, 290 Ga. 493, n. * (722 SE2d 708) (2012).

       We note that Robinson did not file a written plea in b ar prior to the second trial; however, he objected at the second trial (i) to the State’s use of the alleged co-conspirator’s testimony to establish that Robinson was a party to a crime, and (ii) to the trial court’s prohibition of him bringing out the fact that he was acquitted of numerous charges in the first trial. At that time, Robinson argued that the evidence in question violated collateral estoppel principles because he had been acquitted of being a party to a crime in the first trial. He also raised this issue at his motion for new trial. The State does not assert that Robinson waived this argument by failing to file a written plea in bar prior to the second trial, and we hold that this objection was sufficient to raise the issue of collateral estoppel of the party to a crime theory at trial. See Joya v. United States, 53 A3d 309, 316-319 (III) (D.C. App. 2012); compare with United States v. Whitfield, 590 F3d 325, 329 (VIII) (5th Cir. 2009).

       (Citations and punctuation omitted.) Roesser v. State, 294 Ga. 295, 297 (751 SE2d 297) (2013).

       See OCGA § 16-2-20 (a). “Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. . . . [0]ne is concerned in the commission of a crime if he, among other things, intentionally aids or abets in the commission of the crime. While an individual’s presence when a crime is committed will not be sufficient, in and of itself, to convict that individual as a party to the crime, if the individual is present and assists in the commission of the crime or shares in the criminal intent of the actual perpetrator of the crime, the individual may be convicted as a party to the crime. Further, criminal intent may be inferred from conduct before, during, and after the commission of the crime.” (Punctuation omitted.) Joyner v. State, 280 Ga. 37, 39 (1) (622 SE2d 319) (2005) (upholding convictions for felony murder, armed robbery, and burglary based on defendant’s actions as a getaway driver).

       (Citations and punctuation omitted.) United States v. Ohayon, 483 F3d 1281, 1286 (III) (A) (1) (11th Cir. 2007).

       (Punctuation omitted.) Roesser, 294 Ga. at 297, quoting Yeager v. United States, 557 U. S. 110 (129 SCt 2360, 174 LE2d 78) (2009). See also Ashe v. Swenson, 397 U. S. 436, 444 (90 SCt 1189, 25 LE2d 469) (1970).

        Ashe, 397 U. S. at 444.

       (Citations and punctuation omitted.) Ohayon, 483 F3d at 1287-1288 (III) (A) (2), citing United States v. Brown, 983 F2d 201, 203 (11th Cir. 1993) (“While the possibility of jury nullification may influence the strategy of trial lawyers, it cannot enter into the analysis of courts making collateral estoppel inquiries”).

       See Ohayon, 483 F3d at 1287-1288 (III) (A) (2).


author: MCFADDEN, Judge.

text:
    A15A1127.
    ZHONG v. PNC BANK, N.A. et al.
    (780 SE2d 92)
   MCFADDEN, Judge.

Fei Zhong appeals the grant of summary judgment to PNC Bank, N.A. and Wells Fargo Bank, N.A. in this action arising from the foreclosure of a property. Zhong argues that the trial court erred by granting summary judgment to PNC on the basis of an argument it never raised; that the trial court erred by allowing Wells Fargo to contest liability, even though it was in default; that the trial court erred by entering a final judgment in the defendants’ favor without addressing her claims for breach of contract and negligence; and that the trial court erred by granting summary judgment on the ground that Zhong could seek as damages only the equity in her property, but she had no equity. We agree with Zhong that the trial court erred by granting the defendants summary judgment on the ground that Zhong had no equity in the property. We therefore reverse the grant of the defendants’ motions for summary judgment and remand for further proceedings. Accordingly, we do not reach Zhong’s other claims of error.

1. Facts.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review a grant of summary judgment de novo and the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Bassett v. Jasper Banking Co., 21 & Ga. App. 698, 699 (629 SE2d 434) (2006) (citations omitted). Viewed in this light, the evidence showed that Zhong purchased the property, a house, in 2004 for $600,000. She first lived in the house and then leased it to tenants. In 2005, PNC bought the loan Zhong used to purchase the property.

For more than six years, Zhong paid her mortgage without incident. On March 31, 2010, PNC paid Zhong’s delinquent 2009 property taxes, more than $11,000. Months later, PNC informed Zhong that she had an escrow shortage of $23,310.98 that had to be paid over 12 months. It established an escrow account and informed her that her monthly payment would be increased to $5,527.06. Zhong’s payment had been $2,731.11. Zhong immediately called PNC to ask for an explanation and was told that PNC would investigate the matter but she should keep making the current payment.

In November 2010, Zhong paid $2,731.11, which PNC applied to principal and interest, but asked Zhong to pay the difference of $2,795.97. InDecember 2010 and January 2011, Zhong paid $2,838.92, which PNC applied to the negative escrow balance. PNC wrote Zhong, notifying her of the insufficiency of the payments, in letters mailed to the property address. Zhong again contacted PNC, not having received an explanation from the investigation that PNC earlier had promised, to ask how PNC determined the amount owed and for an explanation of the escrow account.

Eventually PNC told Zhong that the increase reflected an increase in her escrow payment but it did not explain why the increase was necessary. In January 2011, PNC and Zhong agreed that Zhong would make payments of $3,891.98 for the next five years, retroactive to December 2010, and PNC sent Zhong a coupon book reflecting payments due in that amount, with the first coupon due February 2011.

The day after reaching that agreement, on January 28, 2011, Zhong made a payment of $3,891.98. PNC returned the check, with a letter stating that the payment did not “meet current acceptance guidelines.” Zhong mailed payments of $3,891.98 in February and March 2011 through an overnight delivery service and using her online banking account, but PNC returned the payments. Zhong again contacted PNC for an explanation, but received none. She hired counsel and instructed PNC to direct all communication to him.

In the meantime, on January 20, 2011, PNC sent a letter to Zhong at the property address that she was in breach and that if she failed to pay a $16,990.96 deficiency by February 19, 2011, it would accelerate the loan. In March 2011, PNC wrote Zhong that she owed $560,000, that Wells Fargo was the creditor, and that PNC was the servicer. Zhong called the number listed on the letter, but received no explanation. Her attorney contacted PNC, and eventually PNC said that it would forebear foreclosure. Per PNC’s request, Zhong repeatedly submitted a hardship application and related documents.

In 2012, Wells Fargo foreclosed on the property. Neither Zhong nor her counsel received notice of the foreclosure sale, which was sent to the vacant property address even though Zhong had instructed PNC to direct all communications to counsel. As a result, Zhong lost the property, her credit was damaged, and she was “devastated] and embarrass[ed].”

Zhong filed this action against PNC and Wells Fargo, claiming breach of contract, wrongful foreclosure, and negligence, and seeking damages, punitive damages, and attorney fees. Wells Fargo did not timely answer the complaint, and the trial court entered default against it.

Wells Fargo and PNC filed separate motions for summary judgment. The trial court conducted a hearing, received supplemental briefing, and granted the defendants summary judgment. The court ruled that, in the face of the evidence of Zhong’s lack of equity, her failure to point to specific evidence that she had equity in the property entitled the defendants to summary judgment. Although the order did not specifically address the negligence or breach of contract claims, the trial court directed the clerk to close the case. Zhong filed this appeal.

2. The trial court granted summary judgment on an erroneous legal theory.

The trial court erred by adopting the argument that Zhong’s damages were limited to equity in the property and that because she had no equity, the defendants were entitled to summary judgment. Because we hold the lack-of-equity argument to be without merit, we do not reach Zhong’s argument that PNC’s motion for summary judgment did not properly raise it.

A plaintiff in a wrongful foreclosure action may seek damages that are not directly related to the value of the property, including damages for mental anguish and for injury to credit standing. See Curl v. First Fed. Savings & Loan Assn., 243 Ga. 842, 843 (2) (257 SE2d 264) (1979); DeGolyer v. Green Tree Servicing, 291 Ga. App. 444, 449 (4) (662 SE2d 141) (2008). Further, sufficiently culpable conduct may present a jury issue as to punitive damages. See First Union Nat. Bank v. Cook, 223 Ga. App. 374, 379 (8) (477 SE2d 649) (1996) (defendant pursued foreclosure, although security deed had been marked paid, in accordance with policy of foreclose first and ask questions later). Accordingly, Zhong was not limited to recovering only her lost equity in the property, and the trial court erred in holding otherwise.

The trial court relied on Calhoun First Nat. Bank v. Dickens, 264 Ga. 285 (443 SE2d 837) (1994), as support for the holding that Zhong only could recover the lost equity she possessed at the time of the foreclosure. But Calhoun First Nat. Bank does not support that holding. There, our Supreme Court held that a plaintiff in a wrongful foreclosure action “may not both set aside or cancel the foreclosure and also recover damages for the value of the property[.]” Id. at 286 (1) (citation and punctuation omitted; emphasis in original). In other words, the court held that the plaintiff must elect her remedy. Nothing in the opinion limited wrongful foreclosure damages to loss of equity. Indeed, in a footnote, the court indicated that a plaintiff may recover “damages not associated with the value of the property.” Id. at 286 (1), n. 1 (citation omitted). Thus, the trial court erred by granting summary judgment to the defendants on all of Zhong’s claims solely because she lacked equity in the property.

Decided November 18, 2015.

Heidari Power Law Group, Yasha Heidari, Yenniffer S. Delgado, for appellant.

Ballard Spahr, Sarah T. Reise; Baker, & Berkowitz, Joshua N. Tropper, Jonathan E. Green, Kristin S. Tucker, Linda S. Finley, Joseph R. Butter III, for appellees.

Wells Fargo argues that the trial court’s error does not require reversal because Zhong presented no evidence of any other damages. However, a plaintiff has no burden on summary judgment

to respond to issues which are not raised in the motion for summary judgment or to present its entire case on all allegations in the complaint — even on issues not raised in the defendants’ motion. Indeed, until appellees pierced the allegations of [Zhong’s] complaint on a particular issue, [she] was neither required to respond to the motion on that issue nor required to produce evidence in support of [her] complaint on that issue. The issues that must be rebutted on motion for summary judgment are those raised by the motion.

Hodge v. Sada Enterprises, 217 Ga. App. 688, 690 (1) (458 SE2d 876) (1995) (citations and punctuation omitted). The only damages issues the defendants raised in their summary judgment motions were that Zhong had no damages because she lacked equity in the property and that she was not entitled to punitive damages or attorney fees. Consequently, those were the only damages issues that Zhong was required to address. Id.

As the trial court relied on an erroneous legal theory to grant summary judgment to the defendants and did not address all of the arguments they advanced in their motions, we reverse the grant of summary judgment and remand this case for further proceedings not inconsistent with this opinion. See City of Gainesville v. Dodd, 275 Ga. 834 (573 SE2d 369) (2002).

Judgment reversed and case remanded.

Ellington, P. J., and Dillard, J., concur.


author: Doyle, Chief Judge.

text:
    A15A1256.
    PAGE v. THE STATE.
    (780 SE2d 77)
   Doyle, Chief Judge.

Charles Monroe Page appeals his conviction for armed robbery, arguing that the evidence was insufficient to support the conviction because the act of taking was completed prior to the homeowner’s entry into the room, and any use of force occurred after the taking of the homeowner’s property was complete. For the reasons that follow, we reverse.

Viewed in the light most favorable to the verdict, the evidence at trial showed that around mid-day on December 24,2011, Johnny Ray Mangum was in the basement of his home when he heard someone run upstairs toward the bedrooms. Mangum expected his adult daughter to return home that day, so he was not surprised at the sound and went upstairs to meet her.

Instead of his daughter, Mangum came upon Page, who was in Mangum’s bedroom, coming out of a closet and walking toward the bathroom. Page was holding Mangum’s wife’s jewelry box in one hand and carrying Mangum’s gun in the other hand. Page pointed the gun at Mangum and told him to get out, at which point Mangum first fled to another bedroom and then back to the basement and outside. From a neighbor’s house, Mangum called 911, and when police arrived at the scene, Mangum saw pieces of jewelry scattered in the house along the route Page would have taken from the bedroom to escape via the kitchen.

Based on the foregoing, Page was convicted of multiple crimes, including armed robbery. He now appeals, and relying on the Supreme Court of Georgia’s opinions in Fox, and Hicks v. State, Page contends that his taking of the property was complete prior to his coming into the immediate presence of Mangum.

Page was charged with committing armed robbery of Mangum by taking Mangum’s firearm and jewelry box “by use of an offensive weapon ... a handgun.” Thus, as in Fox, the State was required to establish “beyond a reasonable doubt that [Page’s] use of the handgun occurred ‘prior to or contemporaneously with the taking.’ ”

Decided November 18, 2015.

Virginia R. Priddy, Travis A. Williams, for appellant.

Lee Darragh, District Attorney, Juliet Aldridge, Assistant District Attorney, for appellee.

The State, primarily citing Cantrell v. State, Dutton v. State, and Nuckles v. State, argues that the evidence was sufficient to convict Page for armed, robbery because the taking did not occur until Page exercised dominion over the property by threatening Mangum with the gun. Those cases, however, are inapposite. In Dutton and Nuckles the defendants did not exercise dominion and control over the property at issue until they threatened the store clerks at the time payment would have been expected under normal circumstances. In Cantrell, the defendant did not exercise dominion and control over the stolen item until he used force because he previously acted as if he simply was borrowing the item.

In this case, as in Hicks, Page had exercised control over the items (the gun and the jewelry box) prior to exerting any force against Mangum, who appeared after Page had obtained the items. Moreover, neither our review of the record nor the State’s brief reveals evidence in the record to exclude the hypothesis that Page left the scene after confronting Mangum without taking additional property. Accordingly, his conviction for armed robbery is reversed.

Judgment reversed.

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

       OCGA § 16-8-41 (a).

       Page also was convicted of aggravated assault, theft by taking with a firearm, three counts of theft by taking, and three counts of burglary, but he does not enumerate any error related to those counts. This appeal does not review the portion of the judgment related to those counts.

       See Fox v. State, 289 Ga. 34, 35-36 (1) (a) (709 SE2d 202) (2011) (applying the standard of review announced in Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979), that evidence will be viewed in the light most favorable to the verdict and any issues of witness credibility or inconsistency of evidence are for the factfinder to resolve).

       289 Ga. at 36-37 (1) (b).

       232 Ga. 393, 402-403 (207 SE2d 30) (1974).

        Fox, 289 Ga. at 36 (1) (b).

       184 Ga. App. 384 (361 SE2d 689) (1987).

       199 Ga. App. 750 (406 SE2d 85) (1991).

       137 Ga. App. 200 (223 SE2d 245) (1976).

       See Dutton, 199 Ga. App. at 750; Nuckles, 137 Ga. App. at 201 (1), 204 (5).

       See Cantrell, 184 Ga. App. at 385 (1).

       See Hicks, 232 Ga. at 402-403.

       See Fox, 289 Ga. at 37 (1) (b) (reversing armed robbery conviction because “to warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused,” and the evidence presented could not exclude the hypothesis that the defendant first robbed the home before killing the victim) (punctuation omitted).