text:
    A11A0952.
    GOMEZ-OLIVA v. THE STATE.
    (717 SE2d 689)
   Miller, Presiding Judge.

Francisco Gomez-Oliva was indicted for rape (OCGA § 16-6-1 (a) (1)) and kidnapping (OCGA § 16-5-40 (a)). Following a jury trial, Gomez-Oliva was found guilty of the lesser charge of attempted rape (OCGA §§ 16-4-1, 16-6-1 (a) (1)), and he was sentenced to 25 years to serve the first 12 in confinement. Before the trial court entered the conviction, Gomez-Oliva filed a motion for new trial. Gomez-Oliva later filed an amended motion for new trial. The trial court denied Gomez-Oliva’s motion, and Gomez-Oliva filed this appeal. Gomez-Oliva argues that the evidence was insufficient to sustain his conviction and that he was denied effective assistance of counsel. Because Gomez-Oliva’s contentions lack merit, we affirm.

Construed in the light most favorable to the prosecution, Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979), the evidence shows that the victim was married to Gomez-Oliva for 20 years.

The victim testified that Gomez-Oliva was abusive toward her throughout the course of their marriage. For a period of approximately five years, Gomez-Oliva lived in the United States while the victim lived in El Salvador with their three children. In 2004, the victim moved to the United States in order to be with Gomez-Oliva. The victim later separated from Gomez-Oliva and initiated divorce proceedings. As of the date of the attempted rape, March 14, 2007, the victim was no longer living with Gomez-Oliva, and instead resided with her boyfriend.

On the evening of March 14, 2007, the victim was traveling in a van driven by her boyfriend. While they were driving, the victim saw Gomez-Oliva driving another car. The victim testified that Gomez-Oliva proceeded to follow her and her boyfriend for approximately 30 to 35 minutes. Gomez-Oliva then pulled his car in front of the van, and yelled out to the victim and her boyfriend, telling them not to move. The victim’s boyfriend stopped the van, and upon exiting, argued with Gomez-Oliva. As the victim remained seated in the front passenger seat of the van, she observed Gomez-Oliva holding an unidentified metal tool in his hand. When Gomez-Oliva approached the victim’s boyfriend with the metal tool, the victim’s boyfriend stepped away, and Gomez-Oliva attempted to break the windows of the van with his metal tool.

Gomez-Oliva then pulled the victim out of the van, forced her into his vehicle, and drove her to his apartment. Following their arrival at his apartment, Gomez-Oliva pushed the victim into his bedroom and threw her onto his bed. Gomez-Oliva undressed both himself and the victim, lay on top of the victim, and penetrated her vagina with his penis. Gomez-Oliva had sexual intercourse with the victim against the victim’s will. The victim testified that she felt fearful during the incident and told Gomez-Oliva, “Let me go. The police are coming, let me go.” During the encounter, the police arrived at the apartment and ended Gomez-Oliva’s attack.

On June 11, 2008, a jury found Gomez-Oliva guilty of attempted rape. On June 13, 2008, before the trial court entered the conviction, Gomez-Oliva filed a motion for new trial challenging the sufficiency of the evidence. The trial court entered the conviction on June 17, 2008. On October 8, 2010, after appointment of new counsel, Gomez-Oliva filed an amended motion for new trial, again challenging the sufficiency of the evidence and also raising claims of ineffective assistance of trial counsel. Following a hearing, the trial court denied Gomez-Oliva’s motion for new trial on November 12, 2010, and Gomez-Oliva filed a notice of appeal on December 2, 2010.

1. As we begin the review of this case, we look first at the question of jurisdiction. Even without a motion to dismiss the appeal, “[i]t is the duty of this court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction.” (Citation and punctuation omitted.) Fairclough v. State, 276 Ga. 602, 603 (1) (581 SE2d 3) (2003). Because Gomez-Oliva’s motion for new trial was filed prior to the entry of the judgment on the verdict, it was premature and invalid. See Lipscomb v. State, 194 Ga. App. 657, 657 (1) (391 SE2d 773) (1990); see also Harrison v. Harrison, 229 Ga. 692, 692 (1) (194 SE2d 87) (1972). Although Gomez-Oliva subsequently filed an amended motion for new trial, “[n]o amendment could be filed to such void motion.” Harrison, supra, 229 Ga. at 692 (1). Moreover, if we were to consider his amendment to the motion as a motion for new trial, it was filed long after the time allowed for filing the motion. Id.

“Even though the motion for new trial was premature, this prematurity will not serve to deprive the appellate court of jurisdiction to review the merits of the appeal... in the face of a timely notice of appeal [from the order finally disposing of the motion].” (Citations and punctuation omitted.) Cornelius v. Lawrence, 203 Ga. App. 113, 113 (1) (416 SE2d 115) (1992); see also Harrison, supra, 229 Ga. at 692 (1). Because Gomez-Oliva filed his notice of appeal within 30 days after the trial court denied his motion, Gomez-Oliva’s appeal is properly before this Court and will be considered on its merits. See Fairclough, supra, 276 Ga. at 603 (1); Craig v. Holsey, 264 Ga. App. 344, 345 (1) (590 SE2d 742) (2003).

2. Gomez-Oliva contends that the evidence presented at trial was insufficient to support his conviction. We disagree.

Under the Jackson v. Virginia, supra, 443 U. S. 307, standard, “the question on appeal is whether, based on the evidence as construed in favor of the verdict, a rational trier of fact could have found the defendant guilty of the charged crimes beyond a reasonable doubt.” (Footnote omitted.) Clark v. State, 249 Ga. App. 97, 97 (547 SE2d 734) (2001). “The testimony of the victim alone, even without corroboration, is sufficient to sustain a rape conviction . . . .” Id. at 98. Here, the victim’s testimony as to Gomez-Oliva forcing his penis into her vagina against her will sufficed to sustain the attempted rape conviction. See Hardy v. State, 210 Ga. App. 811, 813 (4) (437 SE2d 790) (1993) (concluding that victim’s testimony alone was sufficient to sustain conviction for attempted rape).

3. Gomez-Oliva also enumerates as error that he was denied effective assistance of counsel because his trial counsel failed to object to improper testimony speculating as to Gomez-Oliva’s state of mind. Although Gomez-Oliva’s ineffectiveness claim was raised in the context of a premature motion for new trial,6 we are permitted to address the merits of his claim. See Sparks v. State, 277 Ga. 72, 73, n. 1, 74 (3) (586 SE2d 645) (2003) (addressing merits of ineffective assistance of counsel claims where defendant had raised such claims in premature motion for new trial); Fairclough, supra, 276 Ga. at 603 (1), 605 (4) (considering ineffective assistance claims raised in untimely motion for new trial where, prior to denial of that motion, the trial court’s grant of out-of-time appeal had rendered untimely motion one that was merely premature).

To establish ineffective assistance of counsel under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), a criminal defendant bears the burden of showing “that counsel’s performance was deficient and that the deficient performance so prejudiced defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.” (Citations omitted.) Johnson v. State, 287 Ga. 767, 769 (2) (700 SE2d 346) (2010). However, a court addressing the ineffective assistance issue is not required “to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, supra, 466 U. S. at 669 (IV). “In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Id.

In support of his contention that trial counsel failed to object to improper testimony speculating as to Gomez-Oliva’s state of mind while he was following the vehicle in which the victim was traveling, Gomez-Oliva points to the following colloquy between the prosecutor and the victim:

Prosecutor: So at the time you see him following your car, what was the reason that you knew that he was supposed to be there?
Victim: I think it was with the only purpose of taking me with him.

Gomez-Oliva argues that it was improper for the victim to speculate as to why Gomez-Oliva was following her and it was equally improper for the prosecutor to pose a question asking her to do so. Pretermitting the issue of whether Gomez-Oliva’s trial counsel was deficient in his failure to object to the testimony, Gomez-Oliva has failed to show that he was prejudiced by the alleged deficiency. The testimony regarding the victim’s belief as to why Gomez-Oliva was following the van in which she was traveling was not relevant to the consideration of the charges against him, rape or attempted rape. Cf. Roundtree v. State, 268 Ga. App. 877, 877-878 (1) (602 SE2d 890) (2004) (concluding that counsel was not ineffective for failing to impeach witness’s testimony concerning her relationship with defendant, where defendant failed to show how his relationship was relevant to the consideration of the charges against him); Usher v. State, 258 Ga. App. 459, 462 (1) (c) (574 SE2d 580) (2002) (holding that trial counsel was not ineffective by failing to object to officer’s hearsay testimony concerning the direction in which the defendant fled, where hearsay testimony was not relevant to defendant’s guilt). Therefore, there is no reasonable likelihood that the testimony contributed to the guilty verdict on the lesser charge of attempted rape, and Gomez-Oliva was therefore not prejudiced by his trial counsel’s failure to object to the testimony.

4. Although Gomez-Oliva urges another instance of the alleged ineffectiveness of trial counsel, he did not raise it below. Gomez-Oliva contends that trial counsel was ineffective by abandoning an attempt to introduce evidence providing an alternate explanation for the victim’s injuries. Gomez-Oliva, however, did not assert this as a ground for ineffective assistance of counsel in his motion for new trial, his amended motion for new trial, or at the hearing on the matter. “Thus, such allegation [ ] of ineffectiveness [is] deemed waived because a defendant is obligated to raise all allegations of ineffectiveness of counsel at the earliest practicable moment.” (Citations and punctuation omitted.) Bagwell v. State, 270 Ga. 175, 179 (1) (f) (508 SE2d 385) (1998); see Phillips v. State, 284 Ga. App. 224, 231 (4) (a) (644 SE2d 153) (2007) (deeming specific claim of ineffective assistance to be waived where defendant failed to raise the specific ground in his motion for new trial or in the hearing on the matter). Therefore, we will not consider Gomez-Oliva’s additional ineffectiveness claim on appeal. See Sparks, supra, 277 Ga. at 75 (4).

Decided October 18, 2011.

Lucas O. Harsh, for appellant.

Daniel J. Porter, District Attorney, Richard A. Vandever, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       The kidnapping count was nol prossed for lack of jurisdiction.

       See OCGA § 5-5-40 (a) (providing that motion for new trial shall be made within 30 days of the entry of the judgment on the verdict).

       “[A]n order dismissing [a premature] motion for new trial is considered a disposition of the motion pursuant to OCGA § 5-6-38 (a), and it commences the running of the 30-day period for filing an appeal.” (Citations and punctuation omitted.) Craig v. Holsey, 264 Ga. App. 344, 345 (1) (590 SE2d 742) (2003).

       We note that this Court is nevertheless required to affirm enumerations of error that challenge a trial court’s action in denying a prematurely filed motion for new trial. See, e.g., Dae v. Patterson, 295 Ga. App. 818, 819-820 (1) (673 SE2d 306) (2009) (“[W]e affirm as to all alleged errors that are premised on denial of the [premature and void] motion for new trial.”) (citations and punctuation omitted); see also Harrison, supra, 229 Ga. at 692 (1), (2) (“Error is enumerated on the denial of the motion for new trial. Since the motion was [premature and therefore] void, there was no error in denying it.”). Here, however, Gomez-Oliva does not enumerate as error the trial court’s denial of his motion for new trial.

       We note that the trial court failed to make any specific factual findings regarding the ineffective assistance claims that Gomez-Oliva raised in his amended motion for new trial. Under these circumstances, this Court would generally remand the case for the trial court’s determination of Gomez-Oliva’s ineffective assistance of counsel claims. Shelton v. State, 307 Ga. App. 599, 601 (2), n. 5 (705 SE2d 699) (2011). However, “[rjemand is not mandated if we can determine from the record that the defendant cannot establish ineffective assistance of counsel under the two-prong test set forth in Strickland [v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)].” (Citation and punctuation omitted.) Ruiz v. State, 286 Ga. 146, 149 (2) (b) (686 SE2d 253) (2009). As further detailed in Division 3, the record in this case is sufficient for this Court to determine that Gomez-Oliva’s ineffective assistance claims lack merifc Gomez-Oliva specifically raised his ineffectiveness claims in his amended motion for new trial and at the motion for new trial hearing.

       Cf. Clemons v. State, 288 Ga. 445, 446-447 (3) (704 SE2d 762) (2011) (refusing to consider ineffective assistance claims raised in untimely motion for new trial because after that motion “was denied, the subsequent grant of an out-of-time appeal could no longer render the motion merely premature”).

       “Under OCGA § 16-6-1 (a) (1), the crime of rape has three separate, essential elements: penetration of the female’s sex organ by the defendant’s penis, without the consent of the victim, and with the use of force.” Melton v. State, 282 Ga. App. 685, 692 (2) (c) (639 SE2d 411) (2006).
      “The elements of the crime of attempted rape are that the accused (1) intended to have forcible and non-consensual carnal knowledge of the victim; and (2) took a substantial step toward committing rape; but (3) failed to consummate the rape.” (Citations omitted.) Hollis v. State, 225 Ga. App. 370, 370 (1) (484 SE2d 54) (1997); see also OCGA § 16-4-1 (criminal attempt).

       Rather, in his amended motion for new trial, and at the hearing on the motion, Gomez-Oliva argued only that the trial court erred in failing to allow Gomez-Oliva to elicit testimony regarding alternate explanations of the victim’s injuries. As specifically stated by his counsel at the motion for new trial hearing, however, Gomez-Oliva’s claim was not raised in the context of ineffective assistance of counsel.


source: Caselaw Access Project

author: Blackwell, Judge.

license: Public Domain

text:
    A11A0971.
    ROBINSON v. THE STATE.
    (717 SE2d 694)
   Blackwell, Judge.

Arthur Robinson was tried by a Muscogee County jury and convicted of burglary. He appeals, contending that the court below erred when it denied his motion for mistrial and that he was deprived at trial of the effective assistance of counsel. We find no merit in these contentions and affirm.

Viewed in the light most favorable to the judgment below, the evidence adduced at trial shows that, on June 22, 2005, the owner of a closed laundry and dry-cleaning business went to the building in which her business was located and heard loud noises inside the building, which sounded like someone striking a metal object with a hammer. She called police, and a responding officer found Robinson and Pamela Johnson inside the building. Robinson was behind a machine, striking metal with a large plumbing wrench. According to the officer, Robinson explained that he was in the building to get “some iron and copper,” and Robinson pointed out three six-to-eight foot pieces of metal pipe he already had broken off. The officer testified that after he arrested Robinson, Robinson admitted that he had entered the same building on three prior occasions to procure iron and copper pipe. The president of a scrap metal recycling business testified at trial that Robinson tried several times to sell scrap metal to him in the spring of 2005. Robinson also testified, claiming that he and Johnson entered the building to engage in intimate relations and that he was not attempting to steal any metal pipe, but only to use it to bar the door and ensure their privacy.

1. Both Robinson and Johnson were charged with burglary for entering the building that housed the laundry and dry-cleaning business, and Johnson pled guilty to the burglary charge before trial. She did not testify against Robinson at trial, but the prosecuting attorney nevertheless elicited testimony about her guilty plea from the officer who had found Robinson and Johnson in the building:

Q: Are you aware that [Johnson] pled guilty to burglary last week?
A: Yes, sir, I’m aware.
Q: And are you aware that she pled guilty to theft by receiving stolen property?

Robinson’s lawyer objected and moved for a mistrial. The trial court correctly sustained the objection because Johnson did not testify and, as the State now concedes, evidence of her guilty plea was inadmissible. See Pinckney v. State, 236 Ga. App. 74, 74 (1) (510 SE2d 923) (1999) (“In general, a guilty plea of a joint offender is not admissible evidence at the trial of another joint offender.”); see also Sillah v. State, 291 Ga. App. 848, 851 (2) (663 SE2d 274) (2008); Spradley v. State, 276 Ga. App. 842, 842 (2) (625 SE2d 106) (2005). The trial court denied the motion for mistrial, however, and instead gave the following remedial instruction to the jury:

[W]hen the officer testified, he was asked a question about the co-defendant entering a plea of guilty to these charges. Under Georgia law, that should not be admissible at all, should not be considered by you at all concerning this defendant because anything the co-defendant pleads guilty to is just simply not admissible. . . .
[Y]ou shall not in any way infer any kind of guilt to the accused that’s on trial that the co-defendant entered a plea since that individual is not here to be cross-examined. ... So I’m asking you to please, when you do start discussing credibility of the witnesses and testimony of the witnesses and the evidence presented, that you clearly not consider in any way at all anything the co-defendant may have said to anyone or any statement that’s been admitted into evidence today from a co-defendant.

In light of this remedial instruction, we think the trial court did not abuse its considerable discretion when it denied the motion for mistrial.

The utterance of such inadmissible testimony does not always require a mistrial, so long as the trial court gives an adequate, corrective instruction that the jury cannot consider it as evidence of the guilt of the accused. See Pinckney, 236 Ga. App. at 75 (1); see also Hendrix v. State, 202 Ga. App. 54, 56 (4) (413 SE2d 232) (1991), overruled on other grounds, Duke v. State, 205 Ga. App. 689, 690 (423 SE2d 427) (1992). As we have explained before, “[t]he trial court has broad discretion in fashioning a remedy to alleviate a problem created by the utterance of inadmissible evidence, and its exercise [of this discretion] may not be reversed unless abused.” Whiteley v. State, 188 Ga. App. 129, 130 (1) (372 SE2d 296) (1988); see also Clay v. State, 216 Ga. App. 310, 312 (2) (454 SE2d 198) (1995). Likewise, “[wjhether to grant a motion for mistrial is within the trial court’s sound discretion, and the trial court’s exercise of that discretion will not be disturbed on appeal unless a mistrial is essential to preserve the defendant’s right to a fair trial.” Watson v. State, 289 Ga. 39, 42 (7) (709 SE2d 2) (2011) (citation and punctuation omitted). The remedial charge in this case, which repeatedly admonished the jury that Johnson’s guilty plea was not to be considered in any way with respect to the guilt of the accused, was sufficient to remedy the error and render a mistrial unnecessary. See Hendrix, 202 Ga. App. at 55-56 (curative instruction sufficient to remedy error). Accordingly, the trial court did not err when it denied the motion for mistrial.

2. We turn next to the contention that Robinson was denied the effective assistance of counsel at trial. To prevail on his claim of ineffective assistance, Robinson must prove both that the performance of his lawyer at trial was deficient and that he was prejudiced by this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984). To prove that the performance of his lawyer was deficient, Robinson must show that his lawyer performed his duties at trial in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. See id. at 687-688; see also Kimmelman v. Morrison, 477 U. S. 365, 381 (II) (C) (106 SC 2574, 91 LE2d 305) (1986). And to prove that he was prejudiced by the performance of his lawyer, Robinson must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U. S. at 694 (III) (B); see also Williams v. Taylor, 529 U. S. 362, 391 (III) (120 SC 1495, 146 LE2d 389) (2000). This burden, although not impossible to carry, is a heavy one. See Kimmelman, 477 U. S. at 382 (II) (C).

Robinson contends that his lawyer was ineffective because, when the prosecuting attorney offered certified copies of his four prior felony convictions to impeach his testimony under OCGA § 24-9-84.1 (a) (2), his lawyer failed to object that the probative value of these convictions did not substantially outweigh their prejudicial effect and that the convictions, therefore, should not be admitted. One of these convictions — an April 2000 conviction for possession of cocaine — was entered only about five years before Robinson was tried for burglary, and the trial court certainly could have concluded, if an objection had been made, that such a recent conviction for a serious crime was probative of his credibility as a testifying witness. Moreover, this prior conviction involved conduct dissimilar to the burglary for which Robinson was on trial, making it less likely that Robinson would be unfairly prejudiced by its admission. We think the trial court properly could have concluded that the probative value of this prior conviction substantially outweighed any prejudicial effect and exercised its discretion to admit evidence of this conviction under OCGA § 24-9-84.1 (a) (2) over objection, so the failure to object to the admission of a certified copy of this objection was not unreasonable.

Even assuming that Robinson has shown that the failure of his lawyer to object to the admission of the other three prior convictions was unreasonable, we do not think Robinson has carried his burden of proving a reasonable probability that the failure to object affected the outcome of his trial, mostly because two of the prior convictions, even if inadmissible under OCGA § 24-9-84.1, would have been admitted anyway, under OCGA § 24-9-82, to disprove facts to which Robinson testified. As part of an effort to portray himself as a naive innocent, to whom it never occurred that entering the building of another without permission and, while inside the building, dismantling pipe could lead to him being charged with a crime, Robinson claimed in his testimony that “I never had no charge like this before. . . . I’ve never been charged like this before.” “A witness may be impeached by disproving the facts testified to by him,” OCGA § 24-9-82, and where a criminal defendant testifies and volunteers a denial of prior criminal conduct of a certain nature, evidence that he previously committed crimes of that nature may be admissible to disprove his denial, even though the evidence incidentally reflects upon his character. See Williams v. State, 257 Ga. 761, 763 (4) (c) (363 SE2d 535) (1988). Two of the prior convictions that were admitted against Robinson without any objection from his lawyer — one for criminal trespass and the possession of tools for the commission of a crime, the other for felony theft by taking — tend to disprove his claim that he never before had been charged with anything like the crime for which he was on trial, and they properly would have been admitted under OCGA § 24-9-82. See Gaither v. State, 194 Ga. App. 213, 214 (1) (390 SE2d 113) (1990) (prior convictions for criminal trespass and theft by receiving admissible to disprove testimony of accused that he had never done anything like an armed robbery); see also Martinez v. State, 303 Ga. App. 166, 171 (3) (692 SE2d 766) (2010) (prior arrest for possession of marijuana admissible to disprove testimony of accused that his only prior marijuana charge involved “a couple of joints behind the seat” of which he was unaware); Leary v. State, 256 Ga. App. 639, 642 (2) (569 SE2d 593) (2002) (prior conviction for theft by taking admissible to disprove testimony of accused that created impression that accused was trustworthy and would not steal); Porter v. State, 240 Ga. App. 554, 555 (524 SE2d 259) (1999) (prior convictions for possession of cocaine admissible to disprove testimony of accused that “I don’t carry no drugs”).

Given that three prior convictions properly could have been admitted in any event, we do not think Robinson has shown a reasonable probability that the admission of the fourth — a 1994 conviction for possession of cocaine and attempted sale of cocaine — affected the outcome of this case. The trial court described the evidence in this case as “overwhelming.” Robinson was found inside the building of another, without permission, hammering on metal pipe with a large wrench. According to a police officer, Robinson admitted that he was “getting some iron and copper,” and according to the officer, he pointed to pieces of pipe he had already broken off. In addition, the officer testified that Robinson admitted that he had entered the same business on three other occasions for the same purpose, and this evidence was corroborated by the president of a scrap metal recycling business, who testified that Robinson had tried to sell him scrap metal in the months preceding the burglary. In his testimony, Robinson did not deny entering the building or breaking off the pipe, but he claimed that he only wanted to use it to bar the door, notwithstanding that he apparently had broken off three pieces of pipe and was in the process of breaking off a fourth when he was discovered, leaving the jury to wonder why Robinson needed so many pieces of pipe to bar the door. Robinson also claimed that the officer had fabricated the statements that had been attributed to Robinson and that the president of the scrap metal recycling business had fabricated his testimony about his dealings with Robinson. With evidence of three prior convictions properly admitted — two for crimes similar to the crime with which Robinson was charged — we doubt that the failure of his lawyer to object to the fourth prior conviction had any effect at all on the outcome of the trial. Robinson has failed to show us a reasonable probability that it did, and having so failed, he has not carried his burden to show prejudice under Strickland. See Everett v. State, 297 Ga. App. 351, 354 (677 SE2d 394) (2009). We, therefore, affirm the judgment of conviction entered below.

Decided October 18, 2011.

William J. Mason, for appellant.

Julia Fessenden Slater, District Attorney, Douglas L. Breault, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.

       See OCGA § 16-7-1 (a).

       “On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict . . . .” Jupiter v. State, 308 Ga. App. 386, 386 (707 SE2d 592) (2011).

       If a prior conviction involves conduct similar to the conduct for which the defendant is being tried, there is some risk that a jury will see it not merely as evidence of his credibility, but as evidence that he probably engaged in the conduct for which he is being tried. The potential for prejudice in such circumstances is greater. See Mueller & Kirkpatrick, Evidence § 6.46 at 625 (1995) (“When the accused is a witness, the closer the resemblance between the charged crime and the crime leading to the prior conviction offered, the greater the potential prejudice to the defendant.”).

       Robinson also complains that his trial lawyer divulged a privileged communication concerning this prior conviction when the lawyer said that Robinson had, in fact, signed the prior conviction. As we understand the record, the lawyer made this statement in the course of trying to explain Robinson’s own confusing testimony, to clarify that Robinson was the person who had been convicted, but that Robinson did not specifically remember the nature of the charges of which he had been convicted. In any event, Robinson offers no explanation for how this statement of his lawyer, even if it was improper, affected the outcome of the trial.


text:
    A11A1156.
    CULPEPPER v. THE STATE.
    (717 SE2d 698)
   Blackwell, Judge.

Following a bench trial in DeKalb County, Larry Culpepper was convicted of possession of cocaine and possession of a firearm by a convicted felon. Culpepper appeals, asserting that the trial court erred when it denied his motion to suppress evidence that was recovered from his rental car. Culpepper contends that the search of the car was unlawful because it was the fruit of an unreasonably prolonged investigative detention. We see no error and affirm the judgment of conviction.

When we review the denial of a motion to suppress, we view the evidence in the light most favorable to the findings and judgment of the trial court, Tanner v. State, 281 Ga. App. 101, 101 (635 SE2d 388) (2006), and we accept its findings on questions of fact and credibility unless they are clearly erroneous and there is no evidence to support them. Alex v. State, 220 Ga. App. 754 (1) (470 SE2d 305) (1996). So viewed, the record in this case shows that, late on the evening of August 5, 2009, a DeKalb County police officer, who was on patrol and accompanied by an officer trainee, observed a conversion van and a Nissan Altima, both parked outside a stereo store and next to a locked, fenced enclosure in which a number of other cars were parked. The rear of the van was adjacent to the fence, its back doors were open, and the officer saw two men standing near the rear of the van. The stereo store was closed at the time, as were the other businesses in the area, and the officer knew that there had been a number of burglaries and thefts in the area recently. Among other incidents, someone recently had broken into a fenced enclosure at a neighboring business, had broken into the vehicles that were parked inside, had stolen some vehicles, and had entered the store and stolen some equipment inside. The officer had been instructed to be on the lookout for possible burglars and thieves in the area.

Concerned that the two men at the rear of the van might be up to no good, the officer approached the two men, who later were identified as Culpepper and his friend, who is identified only as “Mr. Irby” in the record. Irby told the officer that his father operated the paint shop located behind the stereo store, that his father was working late in the shop, and that he and Culpepper were just waiting for his father. The officer then asked Irby to call his father, so that his father could verify his story. Irby claimed, however, that he could not contact his father, and both his story and demeanor then began to change.

As the officer continued to speak with Culpepper and Irby, the officer noticed that both men became increasingly nervous, seemed to be looking around to see if anyone else was in the area, and attempted to create distance between themselves and the officer and between one another. The officer obtained identifying information from Culpepper and Irby and learned that Irby, who said that he had driven the van to the scene, had a suspended license. The officer also learned that the Altima driven by Culpepper was a rental vehicle, a number of which, the officer knew, had been stolen in the area. The officer asked to see the rental agreement for the Altima, and when he followed Culpepper to retrieve the agreement from the car, he noted that Culpepper had to look for the agreement in several areas of the car, finally locating it in the center console. More important, when Culpepper opened the center console, the officer observed the handle of a firearm. After opening the center console, Culpepper “grabbed the rental agreement and slammed the center console real fast,” according to the officer.

The officer then called for other police officers to come to the scene. He also asked Culpepper if there were any weapons in the Altima. At first, Culpepper said “no,” but when the officer asked again later, Culpepper looked nervously at the officer and never answered. Turning to the rental agreement, the officer noticed that the Altima was supposed to have been returned six days earlier, so he contacted the rental company and verified that the rental agreement had expired.

Additional police officers then arrived on the scene, and the first officer secured the firearm that he had observed in the Altima. While removing the firearm from the console, the officer noticed a digital scale with substantial white residue, which a field test indicated was cocaine. Culpepper admitted that the scale with the white residue was his and that he used cocaine. And a check of the firearm revealed that it had been stolen in Henry County. The officers arrested Culpepper, and after placing him in a patrol vehicle, conducted an inventory search of the Altima, which revealed large amounts of bundled currency, including $100 bills, $50 bills, and $20 bills.

Culpepper moved to suppress the evidence recovered from the Altima — the firearm, the digital scale with cocaine residue, and the large amounts of currency — and following an evidentiary hearing, the trial court denied the motion. The trial court summarized its findings of fact and explained its denial of the motion as follows:

Based on the evidence, the officer had a reasonable[,] articulable suspicion that Culpepper was, or was about to be, involved in criminal activity. Each step of the investigation reasonably led to the next. At 10:00 at night, an officer, who was patrolling the area businesses due to recent thefts, saw a van and car backed up to a locked gate of a business that was closed. When the officer stopped to inquire of the vehicles’ occupants, he received a series of inconsistent stories. A criminal check showed that the van’s owner had a suspended license, and that the car was a rental. Upon asking for the rental agreement, the officer saw a gun. The rental agreement that Culpepper gave to the officefr] had expired. The officer legally retrieved the gun, which was stolen, and also found a digital scale with cocaine residue. Culpepper admitted that the scale was his, and that he used cocaine. The detention was not unreasonably prolonged because the officer’s initial reason for stopping never dissipated, and other grounds for detaining Culpepper arose.

Culpepper subsequently agreed to a bench trial, at which he stipulated to the facts found by the trial court at the hearing on the motion, that he had previously been convicted of a felony, and that the residue found on the scale was, in fact, cocaine. The trial court found Culpepper guilty of unlawfully possessing cocaine and, being a convicted felon, a firearm. Culpepper now appeals from the judgment of conviction.

On appeal, Culpepper says that the trial court should have granted his motion to suppress because the officer lacked a reasonable, articulable suspicion that Culpepper was engaged in criminal wrongdoing, and for this reason, his prolonged detention prior to his arrest was unlawful. We disagree.

The principles drawn from the Fourth Amendment that govern encounters between police officers and citizens are well settled and familiar:

As this Court and our Supreme Court have explained many times before, encounters between police officers and citizens come in three varieties, at least as far as the Fourth Amendment is concerned: encounters involving no coercion or detention, which are outside the purview of the Fourth Amendment altogether; brief seizures, which require an officer to have a reasonable suspicion of criminal wrongdoing; and custodial arrests, which require probable cause.

White v. State, 310 Ga. App. 386, 387 (1) (714 SE2d 31) (2011) (citations omitted).

With respect to the first kind of encounter, one involving no coercion or detention, “police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave.”

Id. (citation omitted). So long as a reasonable person, in light of all the circumstances, would believe that he is free to leave, an encounter does not amount to a seizure of the person and does not, therefore, implicate the Fourth Amendment at all. See Bacallao v. State, 307 Ga. App. 539, 541 (705 SE2d 307) (2011). Culpepper concedes that his encounter with the officer in this case was, at first, just such a consensual encounter, and we, therefore, need not scrutinize the undisputed, consensual portion of the encounter. Culpepper contends, however, that the encounter evolved into an investigative detention — an encounter of the second kind — when the officer detained Culpepper after obtaining his identifying information and confirming that no warrants for his arrest were outstanding. Even accepting the contention that the encounter at that point evolved into a seizure of Culpepper, we conclude that the trial court was authorized to find the officer had reasonable grounds for detaining him and, for this reason, properly denied the motion to suppress.

The Fourth Amendment permits an officer to seize a person if the seizure is reasonable. See Johnson v. State, 299 Ga. App. 474, 478 (682 SE2d 601) (2009) (“[T]he touchstone of any Fourth Amendment analysis is a determination of whether an officer’s conduct is reasonable based upon all of the objective facts.”). And a temporary, investigative detention is reasonable if the officer is aware of “specific and articulable facts which, taken together with rational inferences from those facts, provided a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Rolfe v. State, 278 Ga. App. 605, 606 (630 SE2d 438) (2006) (citation and punctuation omitted); see also Hughes v. State, 269 Ga. 258, 259-260 (497 SE2d 790) (1998); Jupiter v. State, 308 Ga. App. 386, 389 (1), n. 15 (707 SE2d 592) (2011). While a mere hunch is not enough to render an investigative detention reasonable, law enforcement officers are permitted to draw upon their own experience and training in assessing the circumstances in which they find themselves, and when courts are considering the reasonableness of an investigative detention, they properly defer to reasonable inferences and deductions drawn by officers in light of their experience and training. See Esposito v. State, 293 Ga. App. 573, 576 (667 SE2d 425) (2008) (officers properly may “draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person”) (citation and punctuation omitted); see also Bishop v. State, 299 Ga. App. 241, 243 (682 SE2d 201) (2009); Rolfe, 278 Ga. App. at 606-607.

Here, by the time Culpepper contends the encounter had evolved into an investigative detention, the officer had found Culpepper and Irby in the parking lot of a closed business late at night, he had seen that the van that Irby was driving was parked with its back doors open to a locked, fenced enclosure in which several other cars were parked, he knew that several burglaries and thefts had occurred in the area recently, including an incident in which someone broke into and stole cars in a fenced enclosure at the business next door, he had been told that Irby had been unable to summon his father to the scene to confirm his account of why they were in the parking lot, and he knew Irby had given conflicting explanations of their presence in the parking lot. Moreover, the officer had observed that Culpepper and Irby appeared to be nervous when the officer spoke with them, that they seemed to be trying to create a distance between themselves and the officer, and that they appeared to be visually scanning the area to determine if anyone else was around. That was enough reason for the officer to detain Culpepper, even after he ascertained that no warrants were outstanding, to further investigate what Culpepper and Irby were doing in the parking lot of a closed business late in the night. See Andrews v. State, 289 Ga. App. 679, 682 (658 SE2d 126) (2008) (occupants of vehicle giving conflicting accounts of their activities “is a basis for reasonable suspicion”); Rolfe, 278 Ga. App. at 607 (officer had reasonable grounds to stop and detain individuals who drove away from a closed business in the early morning hours when the officer was aware of recent thefts at the business and the individuals appeared to evade the officer by driving an unusually circuitous route when he approached); Almond v. State, 242 Ga. App. 650, 652-653 (1) (530 SE2d 750) (2000) (officer had reasonable grounds to detain individual who had stopped in area known for drug trafficking, was speaking with a man who police had reason to believe was a drug dealer, seemed nervous, and gave inconsistent accounts of her activities to the officer).

Having concluded that the officer was entitled to detain Culpep-per even after the officer ascertained that no warrants were outstanding, we have little difficulty in concluding that the officer was entitled to continue to detain Culpepper for the balance of their encounter. When the officer asked to see the rental agreement for the car that Culpepper was driving, Culpepper produced a rental agreement that had expired, which gave the officer an independent and additional reason to detain Culpepper, so that the officer could investigate the status of the rental car. See Tanner, 281 Ga. App. at 103 (1) (“[G]iven that the rental agreement had, in fact, expired, the deputy had an objective reason for believing that Tanner may have been engaged in criminal conduct.”) (citation and punctuation omitted); see also Langston v. State, 302 Ga. App. 541, 544 (691 SE2d 349) (2010) (upon discovering that a rental agreement reflected that a car should have been returned eight days earlier, an officer is authorized to detain the driver and investigate whether he is in lawful possession of the car). Moreover, at the time Culpepper produced the rental agreement, the officer saw a firearm in the center console of the rental car, which Culpepper apparently tried to conceal by quickly closing the console, and when he asked Culpepper whether any weapons were in the car, Culpepper denied it. That too was a reason for the officer to detain Culpepper and to secure the firearm for his own safety. And in the course of securing the firearm, the officer saw in plain view the digital scale with white residue, which a field test indicated was cocaine and which Culpepper admitted was his, affording the officer probable cause to effect a custodial arrest of Culpepper, which the officer did. See State v. Webb, 193 Ga. App. 2, 5 (2) (386 SE2d 891) (1989) (the plain view doctrine supports a warrantless search and seizure if the officers are lawfully in position to obtain the view, the discovery is inadvertent, and the object viewed is immediately seen to be incriminating); Griffin v. State, 180 Ga. App. 189, 190 (348 SE2d 577) (1986) (arrest and search are predicated on probable cause where officer relies on his senses to “see” contraband in plain view).

Decided October 18, 2011.

Daniel B. Kane, for appellant.

Robert D. James, Jr., District Attorney, Jennifer L. Little, Deborah D. Wellborn, Assistant District Attorneys, for appellee.

Culpepper points to the duration of the investigative detention — he says it lasted nearly an hour — as evidence that it was unnecessarily prolonged. Even assuming that the detention lasted for that long, we cannot say that the officer unreasonably prolonged the detention. The officer’s initial reason for stopping Culpepper never dissipated, and other grounds for detaining Culpepper arose as the officer continued his investigation. See Langston, 302 Ga. App. at 544. There is no evidence that the officer at any point discontinued his investigation of the circumstances that formed a basis for his reasonable suspicion. Cf. Dominguez v. State, 310 Ga. App. 370 (714 SE2d 25) (2011). The facts, taken together with rational inferences from those facts, reasonably warranted the detention, and the trial court was authorized to deny the motion to suppress.

Judgment affirmed.

Barnes, B J., and Adams, J., concur.

       See OCGA § 16-13-30 (a).

       See OCGA § 16-11-131.

       Culpepper is right to concede as much. As we have said before, an officer merely approaching an already-stopped vehicle and making inquiry of its occupants does not, without more, amount to a stop or seizure for which Fourth Amendment scrutiny is required. See Baker v. State, 300 Ga. App. 307, 309 (684 SE2d 427) (2009).

       The precedents on which Culpepper relies are distinguishable. In Thomas v. State, 301 Ga. App. 198 (687 SE2d 203) (2009), an officer detained an individual based solely on the individual having had some interactions with the driver of a car in a parking lot in which drug transactions frequently occurred. In Brown v. State, 301 Ga. App. 82 (686 SE2d 793) (2009), an officer detained an individual based on the facts that he was not a resident of the apartment complex through which he was walking, one that was known for drug and criminal activity, that he attempted to walk away from the officer and, at first, ignored the officer, and that he was wearing a hooded sweatshirt and jacket. In Walker v. State, 299 Ga. App. 788 (683 SE2d 867) (2009), an officer detained three men, one of whom seemed to be nervous, because they were standing in the roadway in an area known for drug trafficking and started to walk away when the officer first approached. In the Interest of M. J. H., 239 Ga. App. 894 (522 SE2d 491) (1999), involved an officer who detained a juvenile simply because his truck was parked across several spaces in the parking lot of a public park late in the evening. McKinley v. State, 213 Ga. App. 738 (445 SE2d 828) (1994), involved an officer who relied exclusively on an insufficiently corroborated anonymous tip as a basis for stopping the defendants. Among other distinctions, none of these cases involved individuals who gave inconsistent accounts of their activities to an officer prior to the detention, which, when combined with the other suspicious conduct in this case, is enough to warrant a conclusion that the officer was entitled to detain Culpepper.

       At that point, the officer had probable cause to believe that, by lying about whether weapons were in the vehicle, Culpepper had violated OCGA § 16-10-20, which provides, in pertinent part, that a person who makes a false statement or representation in any matter within the jurisdiction of any department or agency of a county government commits the offense of uttering false statements, a felony. In any event, that Culpepper actively tried to conceal the firearm from the officer is suggestive of other criminal activity and sufficiently suspicious to warrant an investigative detention. See State v. Turntime, 170 Ga. App. 740, 742-743 (1) (318 SE2d 157) (1984) (an officer is constitutionally authorized to investigate the circumstances which provoke a reasonable and found suspicion on his part).

       We have said before that, when an officer becomes aware of a weapon in a vehicle during an investigative stop, the officer may secure the weapon for his own safety. See Megesi v. State, 277 Ga. App. 855, 857-859 (2) (627 SE2d 814) (2006) (physical precedent only). And in this case, the officer not only knew that a firearm was in the rental car, but also that Culpepper was trying to conceal its existence from the officer. In these circumstances, we think the officer was entitled to enter the vehicle for the purpose of retrieving and securing the firearm. See Silva v. State, 278 Ga. 506, 508 (604 SE2d 171) (2004) (officer who has detained an occupant of a vehicle may conduct a search founded on the reasonable belief, based on articulable facts and rational inferences, that the occupant may gain immediate control of a weapon when he re-enters his car after the detention); Kennedy v. State, 298 Ga. App. 372, 373-374 (1) (680 SE2d 478) (2009) (movements by detained individuals outside vehicle to conceal bag inside vehicle justified officer’s search of the vehicle for a weapon); Bell v. State, 295 Ga. App. 607, 611 (2) (672 SE2d 675) (2009) (furtive movements or other indications of danger to an officer justify a search for weapons in a limited area in which a weapon may be placed or hidden).

         The State disputes that the encounter lasted for that long, and we find no evidence in the record that establishes that it did. We note that, although the trial court apparently was shown a video of portions of the encounter, no video recording appears in the record on appeal.


author: Mikell, Judge.

text:
    A11A1176.
    FERRELL v. THE STATE.
    (717 SE2d 705)
   Mikell, Judge.

Sonya Ferrell, Michael Clark, and Elizabeth K. Durante were jointly indicted for trafficking in cocaine and possession of a controlled substance, MDMA. Clark and Durante were also indicted for several misdemeanors. Following a jury trial, all defendants were found guilty on all charges. Ferrell appeals the denial of her motion for new trial. Finding no reversible error, we affirm.

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. We neither weigh the evidence nor judge the credibility of the witnesses, but determine only the sufficiency of the evidence in accordance with the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

“As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.”

So viewed, the trial evidence shows that Deputy Billy Jones initiated a traffic stop because the driver and passenger of a car were not wearing seatbelts. The vehicle delayed pulling over but finally stopped. Clark was driving, Durante was in the front passenger seat, and Ferrell was in the back seat. Upon speaking with the driver, the deputy smelled a strong odor of marijuana. After questioning, Clark admitted that his driver’s license was suspended, and Durante admitted that she had some marijuana in her purse, which was in the center console of the car. The deputy found a plastic bag with six grams of marijuana in Durante’s purse, as well as a cell phone. The phone showed a picture of Clark and Durante with the phrase “Mike and Liz” on the top of the photo. The phone contained text messages referencing drugs and drug sales.

A search of the car revealed a Crown Royal bag on the front floorboard at the edge of the seat. Inside this bag were empty baggies, cocaine, and a digital scale commonly used for weighing drugs. The cocaine was packaged in one large bag, weighing 30.7 grams, and 17 individual baggies, weighing 6.4 grams total. The large bag of cocaine was 80.9 percent pure, and the smaller bags were about 60.7 percent pure. Also inside the Crown Royal bag was a pharmacy pill bottle labeled with Ferrell’s anti-depressant prescription. The bottle contained two baggies, one holding five pills and the other holding one pill. GBI crime lab tests subsequently confirmed that the pills were MDMA.

1. Ferrell contends that the evidence summarized above was insufficient to sustain her convictions of trafficking in cocaine and possession of MDMA, and that the circumstantial evidence failed to exclude every other reasonable hypothesis save that of her guilt. We disagree.

Ferrell was not in actual possession of the contraband, nor was she driving or in control of the car. Therefore, no presumption of control over the contraband attaches. “The issue before us is whether [Ferrell] was in joint constructive possession of the drug[s], and the question turns on whether [she] and the other defendants knowingly shared the power and intention to exercise dominion or control over them.” A defendant’s joint constructive possession of contraband with another will sustain a conviction. Ferrell argues that there was no evidence to show that she possessed the cocaine and MDMA, other than that she was a passenger in the vehicle at the time the drugs were found. Although it is true that “[a] finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity,” the MDMA pills were found in a prescription pill bottle belonging to Ferrell; and the pill bottle was found in the Crown Royal bag with the cocaine. “As long as there is slight evidence of access, power, and intention to exercise control or dominion over [the contraband], the question of fact regarding constructive possession remains within the domain of the trier of fact.” Because the state presented evidence beyond Ferrell’s mere presence in the car, the issue of her guilt was properly within the jury’s discretion.

Ferrell contends that the circumstantial evidence failed to exclude every other reasonable hypothesis save that of her guilt, as required by OCGA § 24-4-6. Her contentions are unavailing. When a constructive possession case “is based wholly on circumstantial evidence, the law requires that 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.”

As stated above, the evidence at trial showed that some of the contraband found in the Crown Royal bag was inside a prescription pill bottle bearing Ferrell’s name. Ferrell testified at trial that the last time she saw the pill bottle was on the television stand in her home, and she had called the pharmacy to refill her prescription. She testified that although she had asked Clark to pick up the prescription refill from the pharmacy for her, she had not given him the prescription bottle found at the scene and that he would not have needed it to pick up the prescription for her.

“It is the jury’s role to resolve evidentiary conflicts, determine witness credibility, and decide the reasonableness of hypotheses based upon the circumstantial evidence.”

Questions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.

We conclude that the jury was authorized to find that Ferrell had joint constructive possession of cocaine and MDMA under the standard set forth in Jackson v. Virginia.

2. Ferrell next argues that pursuant to Arizona v. Gant, the search of the vehicle that resulted in the discovery of the cocaine and MDMA was unlawful. However, Ferrell did not file a written motion to suppress, as required by OCGA § 17-5-30 (b), which provides that a motion to suppress illegally seized evidence “shall be in writing and state facts showing that the search and seizure were unlawful.” Moreover, Ferrell did not object either to the admission of the cocaine and MDMA at trial or to the deputy’s testimony thereon. Therefore, this issue is waived.

Pretermitting whether this issue is properly before this Court, we find that, contrary to Ferrell’s contentions, Gant did not invalidate the search at issue here, because the officer had reason “to believe the vehicle contained] evidence of the offense of arrest.” Thus, the search was authorized under the automobile exception to the warrant requirement. “The automobile exception provides that a police officer may search a car without a warrant if he has probable cause to believe that the car contains contraband, even if there is no exigency preventing the officer from getting a search warrant.” Probable cause exists when

the facts and circumstances before the officer are such as would lead a reasonably discreet and prudent man to believe that the contents of the vehicle offend the law. Probable cause need not be defined in relation to any one particular element, but may exist because of the totality of circumstances surrounding a transaction.

Additionally, the officer can search the entire vehicle, “including all containers and packages that may contain such contraband.”

In the case sub judice, the objective facts known to Deputy Jones after he lawfully stopped the car gave him probable cause to believe that the car contained contraband. These facts included the fact that the driver did not slow down immediately after the officer initiated the traffic stop; the smell of marijuana in the car; and the fact that Durante admitted to having marijuana in her purse. Thus, it was reasonable for the police officer to believe that there was evidence of contraband in the vehicle, and the warrantless search of the vehicle was therefore lawful.

3. Ferrell next argues that she was denied her Sixth Amendment right to confrontation when text messages from Durante’s cell phone were admitted into evidence. However, Ferrell did not object on confrontation grounds to the admission of the evidence. Accordingly, this issue is waived.

4. During cross-examination, Ferrell’s counsel asked Investigator Shannon Ryals if he had interviewed any of the defendants himself on the evening of the arrests. He responded, “Yes ma’am. . . . I tried to interview each one. First I Mirandized them. As soon as I Mirandized them, they invoked their right to remain silent.” Ferrell claims that this testimony improperly commented on her Fifth Amendment right to remain silent. However, Ferrell cannot complain about this testimony because the comment was elicited by defense counsel.

5. Ferrell contends that her right of confrontation was violated by inadmissible hearsay testimony by Lawrence Sullivan, the testifying GBI chemist, regarding another chemist’s testing of the drugs. We disagree.

Sullivan testified at trial because Shelly Davis, the analyst who tested the drugs, was no longer with the GBI. Ferrell argues that this testimony was inadmissible hearsay, but the record does not support this argument. Rather than being a mere conduit for Davis’s findings, Sullivan testified that he reviewed the examination, notes, and materials created by Davis during her analysis of the substances, and based on that, his expert opinion was that the solid material was positive for cocaine and the tablets were positive for MDMA. “An expert may base [his] opinions on data gathered by others.” Accordingly, Sullivan’s testimony was properly admitted into evidence.

6. Ferrell contends that the trial court issued a jury instruction on impeachment that was not authorized by the evidence presented at trial. We disagree.

Initially, the trial court charged the jury:

A witness may be impeached, in the case, by . . . disproving the facts to which the witness testified; secondly, by proof that the witness has been convicted of a felony in this state, and you can also impeach a witness by proof of contradictory statements previously made by that witness about matters that are relevant to the witness’s testimony in this case.

After the jury left the courtroom, the trial court asked for exceptions to the charge. Co-defendant Clark objected to the inclusion of the portion regarding a felony conviction, and it was revealed that the impeachment charge was requested by Durante. The trial court agreed to recharge on impeachment. When the trial court asked Ferrell for any exceptions, she stated:

If the Court is inclined to give the full charge again on impeachment, Judge, I will say that the impeachment involving a felony [does] not apply, neither does proof of the crime involving dishonesty or making false statements, neither does that of proof of reputation for untruthfulness. None of those apply.

When the court asked if disproving the facts about which the witness testified and proof of contradictory statements previously made by a witness applied, Ferrell agreed that they did. The trial court re-charged the jury on impeachment and limited it to those two methods. After all the jury charges were issued, Ferrell objected that “recharging [the jury] puts undue burdensome [sic] on that charge.”

Ferrell argues that because she was the only defendant to testify at trial, the jury charge intimated that her testimony regarding how the prescription pill bottle containing MDMA could have gotten into the cloth bag holding the other contraband was susceptible to impeachment. However, Ferrell agreed that the content of the re-charge given by the trial court was appropriate. Therefore, this issue is not preserved for our appellate review.

We also note that, contrary to Ferrell’s assertions, the charge was tailored to the following evidence presented at trial: during cross-examination, Deputy Jones was confronted with discrepancies between his trial testimony and the report he prepared at the time of the incident; Investigator Ryals was confronted with what he categorized as a typographical error in chain of custody paperwork; and Ferrell testified that she left her pill bottle on the television stand, but it was found in the car. Thus, the trial court did not err in giving the jury the instruction at issue.

7. The cellular phone containing text messages was admitted to show that the phone was used to facilitate drug trafficking. The trial court declined to allow the cell phone to go out with the jury during deliberations. When the jury asked to have the cell phone while they deliberated, the trial court informed them that “[t]here are other things on that cell phone which are not admitted into evidence. They have no relevancy to this case to that extent — and to some extent may be prejudicial to the parties involved.” Ferrell contends that the trial court expressed an impermissible opinion, in violation of OCGA § 17-8-57. We disagree.

The state argues that, because Ferrell failed to object to this comment during trial, she has waived any error. However, our Supreme Court has “clarified that a violation of OCGA § 17-8-57 will always constitute ‘plain error,’ meaning that the failure to object at trial will not waive the issue on appeal. On appeal, the issue is simply whether there was such a violation.” Therefore, we address Ferrell’s contention, and we find that there has been no violation of OCGA § 17-8-57 in this case. In denying the jurors’ request, the trial court was merely instructing jurors that only the admitted portions of the cell phone’s contents were available for their consideration. Because the court’s comment was “limited to a clarification of procedures and did not address the credibility of witnesses or any fact at issue in the trial,” it does not constitute a basis for reversal.

8. In her final enumeration, Ferrell claims that the trial court erred in finding that she received effective assistance of counsel in several respects: (a) by eliciting testimony from a narcotics investigator that Ferrell invoked her right to remain silent; (b) by failing to object to the admission of text messages; (c) by failing to file a motion to suppress the evidence of drug contraband; (d) by failing to object to the GBI chemist’s testimony; and (e) by failing to object to the trial court’s jury charge on impeachment. We disagree.

In order to prevail on a claim of ineffective assistance, Ferrell must show “both that counsel was deficient and that, but for the unprofessional errors, there is a reasonable probability that the trial’s outcome would have been different.” In reviewing a trial court’s ruling on a claim of ineffective assistance of counsel, we give deference to the trial court’s factual findings, which are upheld on appeal unless clearly erroneous; and we review de novo the trial court’s legal conclusions.

(a) Ferrell first argues that her trial counsel rendered ineffective assistance by eliciting testimony from a narcotics investigator that Ferrell had invoked her right to remain silent. During cross-examination, Ferrell’s counsel asked the investigator if he interviewed any of the defendants on the evening of the arrest, and the investigator replied that he could not interview the defendants because they had invoked their Miranda rights. However, the transcript of the hearing on appellant’s motion for new trial reveals that counsel’s questioning was tactical in nature. Counsel testified that she hoped this question would elicit inconsistent testimony from the investigator. Whether this tactic was “wise or unwise has no bearing on appellant’s claim of ineffectiveness, as counsel’s tactical decisions will not be judged in hindsight.”

Decided October 18, 2011.

Peter D. Johnson, for appellant.

R. Ashley Wright, District Attorney, Madonna M. Little, Assistant District Attorney, for appellee.

(b) Ferrell argues that her trial counsel rendered ineffective assistance by failing to object to the admission of text messages on the cell phone owned by co-defendant Durante. At the motion for new trial hearing, Ferrell’s trial counsel testified that she did not object to the admission of these text messages as a matter of trial strategy because she believed they supported Ferrell’s defense. Counsel reasoned that because there was no evidence connecting Ferrell to the cell phone, it would be beneficial for Ferrell’s defense to allow the text messages into evidence. A failure to object to the introduction of evidence that does not significantly prejudice the defendant does not constitute ineffective assistance of counsel, particularly if there is a tactical reason not to object.

(c) Ferrell also contends that her trial counsel rendered ineffective assistance by failing to file a motion to suppress the evidence of drug contraband; by failing to object to the GBI chemist’s testimony; and by failing to object to the trial court’s jury charge on impeachment. However, these claims of error depend on enumerations of error unsuccessfully asserted in this opinion, and “failure to make a meritless objection cannot be evidence of ineffective assistance.”

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

       MDMA, commonly known as “Ecstasy,” is an abbreviation for 3, 4-Methylene-dioxymethamphetamine and is a Schedule I controlled substance. See OCGA § 16-13-25 (3) (Z).

       (Citation omitted.) Martinez v. State, 303 Ga. App. 71 (1) (692 SE2d 737) (2010).

       (Citation and punctuation omitted.) Navarro v. State, 293 Ga. App. 329-330 (667 SE2d 125) (2008).

       OCGA § 16-13-31 (a) (1) provides that “[ajny person who knowingly sells, manufactures, delivers, or brings into this state or who is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine . . . commits the felony offense of trafficking in cocaine.”

       OCGA § 16-13-30 (a) makes it “unlawful for any person to purchase, possess, or have under his control any controlled substance.” Ferrell’s brief mistakenly argues that she was charged with possession of MDMA with intent to distribute. See OCGA § 16-13-30 (b).

        Vines v. State, 296 Ga. App. 543, 545 (1) (675 SE2d 260) (2009).

       Id. Accord Edwards v. State, 306 Ga. App. 713, 716 (703 SE2d 130) (2010).

       (Punctuation and footnote omitted.) Jackson v. State, 306 Ga. App. 33, 35 (1) (b) (701 SE2d 481) (2010). Accord Cooper v. State, 237 Ga. App. 837, 838 (2) (517 SE2d 85) (1999).

       (Punctuation and footnote omitted.) Wright v. State, 279 Ga. App. 299 (1) (630 SE2d 774) (2006).

       See Cooper, supra at 838-839 (2) (affirming conviction based on joint constructive possession where small bags of cocaine were found in same container as defendant’s prescription pill bottle).

       (Citation and punctuation omitted.) Hodges v. State, 277 Ga. App. 174 (626 SE2d 133) (2006). See OCGA § 24-4-6.

       (Citation omitted.) Martinez, supra at 74 (1).

       (Citation and punctuation omitted.) Wright v. State, 302 Ga. App. 332, 333 (690 SE2d 654) (2010).

       Supra.

       556 U. S. 332 (129 SC 1710, 173 LE2d 485) (2009).

        Nelson v. State, 305 Ga. App. 65, 66 (1) (699 SE2d 66) (2010).

        Gant, supra, 129 SC at 1723 (VI).

       See id. at 1719 (III).

       (Citations and punctuation omitted.) Martinez v. State, 303 Ga. App. 166, 170 (2) (692 SE2d 766) (2010).

       (Citation omitted.) Id. at 170-171 (2).

       (Punctuation and footnote omitted.) Brown v. State, 311 Ga. App. 405, 408 (2) (715 SE2d 802) (2011).

       See Higdon v. State, 261 Ga. App. 729, 733 (a) (583 SE2d 556) (2003) (“a police officer may draw inferences based on his own experience in deciding whether probable cause exists”) (footnote omitted).

        Higginbotham, v. State, 287 Ga. 187, 189 (3) (695 SE2d 210) (2010).

        Heath v. State, 291 Ga. App. 594, 595 (2) (662 SE2d 362) (2008).

       (Citation omitted.) Watkins v. State, 285 Ga. 355, 358 (2) (676 SE2d 196) (2009).

       See Carolina v. State, 302 Ga. App. 40, 41-42 (690 SE2d 435) (2010).

       One cannot invite error and then seek to have a conviction reversed on that basis. Thompson v. State, 286 Ga. 891, 892 (2) (692 SE2d 384) (2010).

       See Brogdon v. State, 270 Ga. App. 568, 569 (2) (607 SE2d 199) (2004) (“The instructions in a criminal trial should be tailored to the indictment and adjusted to the evidence admitted in court”) (citation and punctuation omitted).

       OCGA § 17-8-57 provides that “[i]t is error for any judge in any criminal case ... to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.”

       (Citation omitted.) Linson v. State, 287 Ga. 881, 883 (2) (700 SE2d 394) (2010).

       (Citations omitted.) Id. at 884.

       (Footnote omitted.) Lewis v. State, 279 Ga. 69, 75 (9) (608 SE2d 602) (2005).

        Williams v. State, 277 Ga. 853, 857 (6) (596 SE2d 597) (2004).

       (Footnote omitted.) Lewis, supra at 76 (9).

        Slade v. State, 270 Ga. 305, 307 (2) (509 SE2d 618) (1998).

       See Divisions 2, 5 and 6 above.

       (Footnote omitted.) Scott v. State, 254 Ga. App. 728, 731 (4) (a) (563 SE2d 554) (2002).


author: Miller, Presiding Judge.

text:
    A11A1253.
    JAMES v. THE STATE.
    (717 SE2d 713)
   Miller, Presiding Judge.

Following a bench trial, Ronald Malcus James was convicted of 26 counts of sexual exploitation of children (OCGA § 16-12-100). On appeal, James contends that the trial court erred in denying his motion to suppress evidence seized as a result of a search warrant authorizing entry into his home and the seizure of his computer therein. We find that under the totality of circumstances the magistrate had a substantial basis for concluding that probable cause existed to issue the warrant, and we affirm.

A special agent with the Georgia Bureau of Investigation (GBI) applied for a warrant to search James’s residence for evidence of the crime of sexual exploitation of children. The agent’s affidavit in support of the warrant application showed that on January 8, 2007, the National Center for Missing and Exploited Children (the “NCMEC”) contacted the GBI with information that an Athens, Clarke County suspect had posted images of child pornography on a specified internet website. According to the NCMEC, its information was provided by a named internet security specialist employed by the host of the website, Google, Inc. (the “Google Employee”). In her referral to the NCMEC, the Google Employee “identifies the subject operating the website ... to have an address in Athens, Clarke County, Georgia.”

According to the agent’s affidavit, the NCMEC’s referral to the GBI identified the internet protocol (IP) address associated with the subject website, and using the WHOIS internet database, it was determined that Charter Communications was the internet service provider for this IP address. The agent subsequently obtained a court order to require Charter Communications to provide the subscriber information pertaining to the IP address. Charter Communications identified James, at a physical address in Athens, Clarke County, as the registered user of the IP address at the time the alleged illegal activity occurred.

The agent further averred that he contacted a GBI analyst with the information provided by Charter Communications, and the analyst provided James’s address, date of birth, social security number, driver’s license number, and employment information. The agent also

reviewed the information that was provided to the [GBI] by [the NCMEC] Cybertip line and was informed that [the IP address] uploaded and posted six images depicting child pictures onto a Google webpage. On Thursday, December 28, 2006[,] at approximately 5:58:19 a.m. PST, seven files were received from [a specified website] from [the identified IP address]. These files contained images that depicted children engaging in or posing in sexually explicit scenes.

The agent conducted an additional investigation into James’s employment and educational background, and he also conducted drive-by surveillance of James’s residence.

Following receipt of the affidavit, a superior court judge signed a search warrant for James’s residence, and the warrant was executed on February 12, 2007. Following James’s indictment on 26 counts of sexual exploitation of children, James moved to suppress evidence seized as a result of the execution of the search warrant.

At the hearing on the motion to suppress, the agent testified that the NCMEC forwarded the information to the GBI on a compact disc. The agent reviewed the information, including images showing what appeared to be children engaging in sexual activity.

On cross-examination of the agent, James introduced the first page of the document transmitted to the GBI by the NCMEC. That document showed the contact information for the Google Employee. The agent testified that he did not directly contact the Google Employee, either by telephone, e-mail, or in person. The documentation transmitted to the GBI by the NCMEC also included a statement that the “NCMEC neither investigates nor vouches for the accuracy of the information reported to [NCMEC].” The agent admitted that he did not know whether the NCMEC or the Google Employee performed the WHOIS database search, and further testimony indicated that the database search was part of the report provided by the Google Employee to the NCMEC.

Following the hearing, the trial court denied James’s motion to suppress. James claims that the trial court erred because the affidavit on which the warrant was issued was insufficient to provide the issuing magistrate with relevant and material facts needed to form an independent judgment regarding the existence of probable cause, and because the hearsay information contained within the affidavit was insufficient to authorize the issuance of the warrant. We disagree.

“A search warrant will only issue upon facts sufficient to show probable cause that a crime is being committed or has been committed.” State v. Palmer, 285 Ga. 75, 77 (673 SE2d 237) (2009) (citing OCGA § 17-5-21 (a)). In determining probable cause, the magistrate’s task is

to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

(Citations omitted.) Id. The trial court should afford substantial deference to the issuance of the search warrant upon a judicial finding of probable cause, with resolution of doubtful or marginal cases “largely determined by the preference to be accorded to warrants.” (Citation and punctuation omitted.) Id. at 77-78. As the appellate court, our duty is to determine whether the magistrate “had a substantial basis for concluding that probable cause existed to issue the search warrant.” (Citation and punctuation omitted.) Id. at 78. “[Ajppellate courts will review the search warrant to determine the existence of probable cause using the totality of the circumstances analysis set forth in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983).” (Citation and punctuation omitted.) Id.

(a) James contends that the affidavit was insufficient because the agent did not contact anyone at Google to confirm the identity of the Google Employee, corroborate that a person from Google had made the report to the Center, or verify the contents of that report. Nevertheless, “[hjearsay can be the basis for issuance of a warrant so long as there is a substantial basis for crediting the hearsay. In determining the credibility of hearsay, the declarant’s veracity and basis of knowledge are still major considerations.” (Citations and punctuation omitted.) Banks v. State of Ga., 277 Ga. 543, 545 (2) (592 SE2d 668) (2004). Here, the NCMEC forwarded the information it received from the Google Employee to the GBI, and there is no reason to doubt that it did so accurately. The NCMEC is a “national resource center and clearinghouse” and operates a national network which allows it to “transmit images and information regarding missing and exploited children to law enforcement across the United States and around the world instantly.” 42 USC § 5771 (9) (A), (C). Electronic communication service providers and remote computing service providers, who have knowledge of certain crimes involving child pornography, are required to report the facts or circumstances of the apparent crime to the NCMEC’s Cyber Tip Line. See former 42 USC § 13032 (b) (l).

The affidavit also sets forth facts which show both the reliability and basis of knowledge of the Google Employee. See State v. Hall, 276 Ga. App. 769, 774 (624 SE2d 298) (2005) (probable cause shown by totality of circumstances surrounding informant’s basis of knowledge and reliability). The affidavit contains the name of the Google Employee and explains the source of her knowledge — that Google hosts the website on which the child pornography appeared. Further, in making the disclosure to the NCMEC, the Google Employee was a witness to a possible crime and acting in the role of a concerned citizen, who is afforded “a preferred status insofar as testing the credibility of [her] information.” (Citations omitted.) Whitten v. State, 174 Ga. App. 867, 868 (331 SE2d 912) (1985). See State v. Woldridge, 958 S2d 455, 460 (Fla. App. 2007) (internet service provider was in same position as a citizen informant in forwarding suspected pornographic images along with suspect’s screen name to the NCMEC); State v. Sisson, 883 A2d 868, 880 (V) (B) (Del. Super. Ct. 2005) (in passing along child pornography information to the NCMEC, internet service provider “was essentially a citizen witness to a crime”).

James nevertheless theorizes that anyone could submit images to the NCMEC’s Cyber Tip Line under an alias, and that, in such a case, the NCMEC would then forward the tip to law enforcement whether or not the tip was fraudulent or incorrect. Notwithstanding that the agent failed to independently confirm the identity of the Google Employee, it could be reasonably inferred from the totality of circumstances that the person reporting the information to the NCMEC was an employee of Google, and not a hypothetical imposter in possession of child pornography. The disclosure to the NCMEC was consistent with that of an electronic service provider honoring its mandatory reporting obligation. The individual reporter did not attempt to remain anonymous, but provided her name and employer. Consistent with the representation that she was employed by Google, she gave technical and precise information related to “google.com” websites. She also provided the evidence of the crime — data images showing child pornography. Further, according to the agent, the Google Employee “identifies the subject operating the website ... to have an address in Athens, Clarke County, Georgia.” The agent contacted a third party, Charter Communications, from whom he obtained information connecting the suspect IP address to a residence in Athens, Clarke County, Georgia. Under the totality of circumstances, the “pieces fit neatly together.” Massachusetts v. Upton, 466 U. S. 727, 733 (104 SC 2085, 80 LE2d 721) (1984).

Even if the agent could have done a more thorough job in investigating the information received by the GBI, his inference that the reporting individual was actually a Google employee was a reasonable one and “stronger than a mere uninformed and unconfirmed guess.” Upton, supra, 466 U. S. at 734 (assessing affiant’s identification of informant). Compare Eaton v. State, 210 Ga. App. 273, 274 (435 SE2d 756) (1993) (affiant did not present any facts upon which the magistrate could have determined the veracity of any of the informants), with Dearing v. State, 233 Ga. App. 630, 632 (505 SE2d 485) (1998) (totality of the circumstances included evidence that the informant could be considered a concerned citizen). We conclude that the affidavit provided a sufficient basis for the issuing judge to make a practical, common sense decision that there was a fair probability that evidence of the crime of sexual exploitation of children would be found at James’s residence.

(b) James further contends that the affidavit contains misleading information and omits other material information. Specifically, he points out that the agent avers that the NCMEC “confirms” the existence of child pornography on the website, which James argues is a misrepresentation. He also argues that the agent misrepresents that the NCMEC, rather than the Google Employee, performed the WHOIS database search. James points out that the affidavit failed to include the NCMEC’s disclaimer that it does not investigate or vouch for the accuracy of the information it receives. Finally, James asserts that, although there was a difference between the e-mail address identified by Charter Communications and the e-mail address included in the Google Employee’s report to the NCMEC, such difference was not disclosed in the affidavit.

If a court determines that an affidavit submitted contains material misrepresentations or omissions, the false statements must be deleted, the omitted truthful material must be included, and the affidavit must be reexamined to determine whether probable cause exists to issue a warrant.

(Citation and punctuation omitted.) Sullivan v. State, 284 Ga. 358, 361 (2) (667 SE2d 32) (2008). Even if we assume that the affidavit contains the misrepresentations and omissions identified by James, and the affidavit is re-examined with the alleged false statements omitted and the truthful material included, the information conveyed to the judge issuing the warrant is substantially the same. The agent reviewed the information transmitted to the GBI by the NCMEC and averred that it contained images of children engaging in sexually explicit poses or scenes, and thereby independently confirmed the likelihood that a crime had been committed. Additionally, the IP address associated with the subject website was discovered through an independent internet database (WHOIS). Further, the affidavit shows that the NCMEC received its information in a referral from the Google Employee and consistently couched the information in the context of that referral. The inclusion of the NCMEC disclaimer in the text of the affidavit would not have significantly clarified the role of the NCMEC in passing the information received from the Google Employee on to the GBI. Finally, the agent’s testimony at the suppression hearing indicates that the differences in the e-mail addresses were not significant because a person can have a variety of e-mail addresses, and that “the imperative thing [was having] the IP address.” Accordingly, James’s arguments as to the alleged misrepresentations and omissions do not alter our conclusion that the affidavit presented the magistrate with a substantial basis for finding probable cause to issue the warrant. See Carter v. State, 283 Ga. 76, 78 (2) (656 SE2d 524) (2008) (probable cause to issue warrant remained even if additional facts had been included along with the other facts considered by the magistrate).

Decided October 18, 2011

James D. Crowe, for appellant.

Kenneth W. Mauldin, District Attorney, Jon R. Forwood, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       The full statement provides:
      The [NCMEC] is a national clearinghouse that gathers information about missing and sexually exploited children for law enforcement use. NCMEC neither investigates nor vouches for the accuracy of the information reported to itself. NCMEC forwards all information unedited to law enforcement agencies for investigation and disposition pursuant to its congressional mandate to operate as a clearinghouse.

       This provision, applicable at the time of the referral to the NCMEC at issue here, was repealed in 2008, and the reporting requirements are now codified at 18 USC § 2258A. See United States v. Baker, 538 F3d 324, 330 (III), n. 8 (5th Cir. 2008) (setting forth requirements of former 42 USC § 13032 (b) (1) regarding reports to the Cyber Tip Line).

       The affidavit evidence presented at the hearing on James’s motion to suppress shows that the Google Employee not only provided her name and employment information but also her physical business address, Goggle.com e-mail address, and IP address.


text:
    A11A1338.
    ROIS-MENDEZ v. STAMPS et al.
    (717 SE2d 718)
   Blackwell, Judge.

John and Kathleen Stamps sued Armando Rois-Mendez, seeking a declaratory judgment as to a disputed easement, and after the case was tried in September 2008 by a Fulton County jury, the trial court entered judgment for the Stampses. Rois-Mendez appealed from this judgment in 2009, but we remanded the case to the trial court because the record was incomplete. On remand, the trial court determined that Rois-Mendez had unreasonably and inexcusably failed to cause a complete transcript of the trial proceedings to be filed, even after learning of substantial omissions from the record, and pursuant to its authority under OCGA § 5-6-48, the trial court ordered that the appeal be dismissed. Rois-Mendez now appeals from the order dismissing his earlier appeal, and we affirm.

Rois-Mendez initiated his first appeal on May 26, 2009 by filing a timely notice of appeal, and he filed an amended notice of appeal on June 12, 2009. In these notices of appeal, Rois-Mendez designated the whole record, including trial transcripts and exhibits but excluding the transcript of voir dire proceedings, as the record on appeal. After a transcript of the trial was filed below, the record was transmitted to our Court, and we docketed the first appeal on July 22, 2009. The Stampses soon learned, however, that all of the trial exhibits had been omitted from the record, and they moved our Court to remand the case for the completion of the record. We granted their motion and remanded the case to the trial court on September 2, 2009.

On remand, the Stampses filed a motion to dismiss the appeal, alleging that Rois-Mendez had instructed the court reporter to copy none of the trial exhibits because he did not want to pay the associated costs. The trial court set the motion for hearing on November 12, 2009, and the hearing apparently occurred, although no transcript of it appears in the record. It also appears that Rois-Mendez did not cause the omitted trial exhibits to be filed until after the November 12, 2009 hearing, more than a year after the trial of this case, more than five months after Rois-Mendez initiated his first appeal, and more than two months after our Court remanded the case because the record was incomplete. In any event, on November 18, 2010, the trial court entered an order granting the motion and dismissing the appeal. In its order, the trial court found that when Rois-Mendez became aware of the omission of the trial exhibits from the record, “he took no steps to correct the record,” and instead “he chose to do nothing.” Rois-Mendez now appeals from the dismissal of his first appeal.

A trial court properly may dismiss an appeal for unreasonable delay in the filing of a transcript or a delay in the transmission of the record to the appellate court that is attributable to the inexcusable failure of the appellant to cause a transcript to be filed:

No appeal shall be dismissed by the appellate court nor consideration of any error therein refused because of failure of any party to cause the transcript of evidence and proceedings to be filed within the time allowed by law or order of court; but the trial court may, after notice and opportunity for hearing, order that the appeal be dismissed where there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by such party. . . .

OCGA § 5-6-48 (c) (emphasis supplied). Whether to dismiss an appeal for unreasonable delay in the preparation or transmission of the record is committed to the sound discretion of the trial court, and we will reverse a decision to dismiss an appeal under OCGA § 5-6-48 (c) only upon a showing that the trial court abused its discretion. Propst v. Morgan, 288 Ga. 862, 863-864 (708 SE2d 291) (2011). We see no abuse of discretion here.

In appeals from civil proceedings in which the transcript of the evidence and proceedings is drawn into question, “it shall be the duty of the appellant to have the transcript prepared at the appellant’s expense,” OCGA § 5-6-41 (c), and unless the appellant designates a particular transcript to be omitted from the record, “the appellant shall cause the transcript to be prepared and filed” within 30 days of filing the notice of appeal. OCGA § 5-6-42. Rois-Mendez failed to ensure that a complete record was prepared and sent to this Court in his first appeal. Even by his own account, he became aware of the omission of the trial exhibits on August 4, 2009, but he apparently did not cause the trial exhibits to be filed until sometime after November 12, 2009. In the meantime, the Stampses moved this Court to remand the case, we remanded it, the Stampses moved to dismiss the appeal, the trial court set the motion for a hearing, and the trial court conducted a hearing, but Rois-Mendez, as the trial court put it, “chose to do nothing.”

Rois-Mendez now contends that the omission of the trial exhibits from the record on the first appeal and the delay in correcting the omission following remand were not his fault, but instead were the fault of the clerk of the trial court. But the trial court evidently rejected this contention, and Rois-Mendez has failed to include a transcript of the November 12, 2009 hearing in the record on his second appeal. Consequently, we must accept the factual findings of the trial court, see Scott Brothers, Inc. v. Warren, 261 Ga. App. 285, 286 (1) (582 SE2d 224) (2003), and in light of these factual findings, the dismissal of the appeal was no abuse of discretion. See Atlanta Orthopedic Surgeons v. Adams, 254 Ga. App. 532, 535-536 (562 SE2d 818) (2002) (reversing denial of motion to dismiss appeal where appellant failed to ensure completion of record even after notice of omissions and remand by this Court for purpose of completing record); see also In the Interest of T. H., 311 Ga. App. 641 (716 SE2d 724) (2011); Coptic Constr. Co. v. Rolle, 279 Ga. App. 454, 456 (631 SE2d 475) (2006). Because the trial court did not abuse its discretion when it dismissed the first appeal, we will not address the merits of the issues raised in the first appeal. See Propst, 288 Ga. at 863-864.

Decided October 18, 2011.

Armando F. Rois-Mendez, pro se.

Greer, Stansfield & Turner, Robert H. Stansfield, Frank B. Turner, Jr., for appellees.

Judgment affirmed.

Barnes, E J., and Adams, J., concur.

       Rois-Mendez does not contend that the court below lacked jurisdiction to dismiss his appeal. Our remand of the first appeal returned jurisdiction of this case to the trial court, and we think our remand permitted the court to exercise its authority under OCGA § 5-6-48 to dismiss the appeal. Compare Noorani v. Sugarloaf Mills &c. of Ga., 308 Ga. App. 168 (706 SE2d 750) (2011).