text:
    A13A0795.
    MADDOX v. THE STATE.
    (746 SE2d 280)
   ANDREWS, Presiding Judge.

Marquis Rashad Maddox was found guilty by a jury of possession of cocaine and marijuana found hidden in a car in which he was a passenger. He was also found guilty of giving false information to a police officer. Maddox appeals claiming: (1) that the evidence was insufficient to support his conviction for constructive possession of the cocaine and marijuana, and (2) that the trial court erred by denying his request to instruct the jury that, where there is evidence that another occupant of the car had equal access to and jointly possessed the contraband, but the State did not charge the other occupant, the State had the burden to prove that he was in sole constructive possession of the contraband. For the following reasons, we find no error and affirm.

The State presented the following evidence in support of the charges. A uniformed police officer investigated a car backed into the driveway of an abandoned house at midnight. As he approached, the officer saw four occupants in the car, one in the front passenger seat, and three in the back seat. The man in the front passenger seat, later identified as Maddox, exhibited a shocked expression when he saw the officer and quickly exited the car. The officer instructed Maddox to get back in the car and told the other occupants to stay in the car and show their hands. The officer asked all the occupants for identification for the purpose of checking for outstanding warrants. At that point, the officer could smell the odor of marijuana coming from the interior of the car. Maddox and at least one of the other occupants provided the officer with false identification information. After other officers arrived, all of the occupants were told to get out of the car and a search of Maddox revealed that he was carrying two separate bundles of cash — a $181 bundle (consisting of five $20 bills, two $10 bills, nine $5 bills, and sixteen $1 bills), and a $500 bundle (consisting of nineteen $20 bills, nine $10 bills, three $5 bills, and fifteen $1 bills). Maddox was also carrying two cell phones. In the center console, located between the front passenger seat and the driver’s seat, police found a bag of suspected crack cocaine, a bag of suspected marijuana, and an electronic weighing device. The investigating officer, who was trained and experienced in narcotics investigations, testified that the amount of cash, the denominations of the bills, and the multiple cell phones found on Maddox’s person, were items commonly associated with persons possessing and selling narcotics. The officer testified that the electronic weighing device was commonly used in the sale of narcotics. One of the rear seat occupants was carrying a loaded handgun, which the officer testified was also commonly associated with illegal drugs. According to the investigating officer, the center console, which opened from the front to the back of the car, was easily accessible from the front passenger and driver seats, but was not easily accessible from the car’s back seat. Police observed no one in the driver’s seat of the car, but evidence showed that a woman at the scene owned the car and that her boyfriend had driven the car. Tests conducted at the State Crime Lab showed that the substance in the bag of suspected cocaine tested positive for cocaine. Tests conducted by a police officer trained in marijuana testing and identification showed that the substance in the bag of suspected marijuana tested positive for marijuana. As proof of similar transactions, the State presented evidence that Maddox had one prior conviction for possession of marijuana and two prior convictions for possession of cocaine.

The State’s contention was that Maddox, who was seated in the front passenger seat of the car, had constructive possession of the cocaine and marijuana found in the console located between the driver’s seat and the front passenger seat. No possession charges were brought against the driver of the car, or against its owner, or against the rear seat passengers. Maddox contends that the circumstantial evidence presented by the State failed to prove beyond a reasonable doubt that he had constructive possession of the contraband, and failed to exclude the reasonable hypothesis that either the driver or the owner of the car had sole constructive possession of the contraband.

[T]he law recognizes that possession can be actual or constructive, sole or joint.... A person has actual possession of a thing if he knowingly has direct physical control of it at a given time. A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. If one person alone has actual or constructive possession of a thing, possession is sole, but if two or more persons share actual or constructive possession of a thing, possession is joint.

Holiman v. State, 313 Ga. App. 76, 78 (720 SE2d 363) (2011). The trial court instructed the jury on the above principles. Based on evidence that the owner of the car was present at the scene and that there were three other passengers in the rear seat of the car, the trial court gave additional instructions requested by Maddox in support of his defense that he was merely present in the car as a passenger; that he did not know about or possess the hidden contraband; and that the owner of the car had exclusive constructive possession of the contraband. Accordingly, at Maddox’s request, the court instructed the jury: (1) that a rebuttable presumption existed that the owner of the car was in exclusive control and possession of the contraband found in the car; (2) that the presumption may be overcome by operation of the equal access rule providing that evidence showing a person or persons other than the car owner had equal access to contraband found in the car “may or will, depending upon the strength of the evidence, overcome the presumption that the contraband was in the exclusive possession of the owner . . .” and (3) that the mere presence of an accused as a passenger in a car in which hidden contraband is found is insufficient to support a conviction in the absence of other evidence sufficient to show that the accused had constructive possession of the contraband. State v. Johnson, 280 Ga. 511, 512-513 (630 SE2d 377) (2006) (citation, punctuation and emphasis omitted); Wilkerson v. State, 269 Ga. App. 190, 191-192 (603 SE2d 728) (2004); compare Thompson v. State, 234 Ga. App. 74, 77 (506 SE2d 201) (1998) (no error in refusing passenger’s request to instruct jury on rebuttable presumption that driver had exclusive possession of contraband, and on equal access, where instructions not supported by the evidence).

1. We find that the State presented evidence sufficient for the jury to reject Maddox’s defenses and to find beyond a reasonable doubt that, because he knowingly had both the power and intention to exercise dominion or control over the cocaine and marijuana found next to him in the car’s console, he had constructive possession of the contraband. Allen v. State, 191 Ga. App. 623, 624 (382 SE2d 690) (1989).

“A finding of constructive possession of contraband cannot rest upon mere spatial proximity to the contraband, especially where, as here, the contraband is hidden.” Mitchell v. State, 268 Ga. 592, 593 (492 SE2d 204) (1997). And “[e]vidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction.” Whipple v. State, 207 Ga. App. 131, 132 (427 SE2d 101) (1993) (citation and punctuation omitted). The State’s evidence showed more than Maddox’s mere presence in the car and spatial proximity to the contraband. The evidence showed not only that Maddox had easy access to the contraband located next to him in the console “and thus the power to exercise control over it” (Allen, 191 Ga. App. at 625), but also that he had the intent to exercise control over the contraband. Intent to exercise control may be inferred from the circumstances. Strozier v. State, 313 Ga.App. 804, 808 (723 SE2d 39) (2012). The State produced evidence that the amount and denominations of the bills possessed by Maddox, and the two cell phones he carried, linked him to the possession and sale of the contraband. Id. The odor of marijuana coming from the car occupied by Maddox, combined with other circumstantial evidence of intent, supported an inference that he was connected to the contraband. Vines v. State, 296 Ga. App. 543, 545-547 (675 SE2d 260) (2009). Maddox exhibited a shocked expression and immediately exited the car when he saw the officer approach, and he gave the officer a false name, circumstances from which intent to exercise control over the contraband may be inferred. Id. at 545-546. Similar transaction evidence showing that Maddox had two prior convictions for possession of cocaine and one prior conviction for possession of marijuana provided additional proof of intent. Taylor v. State, 305 Ga. App. 748, 751 (700 SE2d 841) (2010).

When the State’s constructive possession case is based wholly on circumstantial evidence, “the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” Former OCGA § 24-4-6. The circumstantial evidence produced by the State was consistent with the charge that Maddox had constructive possession of the contraband; was sufficient to exclude every reasonable hypothesis save that of his guilt; and was sufficient to allow the jury to find beyond a reasonable doubt that Maddox had constructive possession of the contraband. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). The evidence was also sufficient to prove beyond a reasonable doubt that Maddox was guilty of giving false information to the police officer. Id.

2. Maddox claims the trial court erred by refusing his request to instruct the jury that, where evidence shows another occupant of the car with equal access jointly possessed the contraband, but the State did not charge the other occupant, the State had the burden to prove that he was in sole constructive possession of the contraband. There was no error in refusing to give this instruction. Even assuming there was evidence that another uncharged occupant had equal access and jointly possessed the contraband, we conclude the State was not required to prove that Maddox had sole constructive possession.

The instruction requested by Maddox is based on a line of cases in this Court originating with Reid v. State, 212 Ga. App. 787 (442 SE2d 852) (1994). Like the present case, Reid dealt with contraband hidden in a car with multiple occupants. Citing to no authority, Reid held: When more than one occupant has equal access to hidden contraband, but only one occupant is prosecuted for possession of the contraband, the State has the burden of proving that the prosecuted occupant “was in sole constructive possession” of the contraband. Id. at 788, n. 1 (emphasis in original). For the reasons set forth below, we now conclude there is no reasonable basis for this holding, and overrule Reid in part to the extent it adopted this holding. To the extent this holding has been restated in subsequent cases, those cases are also overruled in part, including: Warren v. State, 254 Ga. App. 52, 54 (561 SE2d 190) (2002); Tamer a State, 276 Ga. App. 381, 383-384 (623 SE2d 216) (2005); Benitez v. State, 295 Ga. App. 658, 660 (673 SE2d 46) (2009); Xiong v. State, 295 Ga. App. 697, 699 (673 SE2d 86) (2009); Millsaps v. State, 300 Ga. App. 383, 385 (685 SE2d 371) (2009); Molina v. State, 300 Ga. App. 868, 871 (686 SE2d 802) (2009); Rogers v. State, 302 Ga. App. 65, 67 (690 SE2d 437) (2010); Fyfe v. State, 305 Ga. App. 322, 326-327 (699 SE2d 546) (2010); Bodiford v. State, 305 Ga. App. 655, 656 (700 SE2d 648) (2010); Wheeler v. State, 307 Ga. App. 585, 586-587 (705 SE2d 686) (2011); Jefferson v. State, 309 Ga. App. 861, 862-863 (711 SE2d 412) (2011); Holiman v. State, 313 Ga. App. at 78-79; Mercado v. State, 317 Ga. App. 403, 405 (731 SE2d 85) (2012); and Clark v. State, 319 Ga. App. 880 (738 SE2d 704) (2013).

Circumstantial evidence that multiple occupants of a car had equal access to hidden contraband may support the theory that all the occupants were guilty as parties to the crime and had joint constructive possession of the contraband. Castillo v. State, 166 Ga. App. 817, 822 (305 SE2d 629) (1983). Under these circumstances, the State may elect to prosecute the occupants jointly or separately (Kennemore v. State, 222 Ga. 252 (149 SE2d 471) (1966)), or may elect to prosecute only one of the occupants for directly committing the crime, but nevertheless prove the sole prosecuted occupant was guilty as a party to the crime. Trumpler v. State, 261 Ga. App. 499, 500-501 (583 SE2d 184) (2003); Brinson v. State, 261 Ga. 884 (413 SE2d 443) (1992). We find no basis for the holding in Reid that the State is required under these circumstances to prove that the prosecuted occupant had sole constructive possession of the contraband. We questioned the Reid holding in Holiman, supra, but found it unnecessary in that case to rule on whether to disavow it. As Holiman pointed out,

the settled rule [is] that the failure of the State to prosecute one party to a crime ordinarily offers no defense to other parties to the crime. See OCGA § 16-2-21 (party to a crime can be convicted even if the principal has not been prosecuted); Davis v. State, 163 Ga. 247, 248 (135 SE 916) (1926) (“Failure to prosecute the principal will in no wise relieve the accessory.”); see also Grimes v. State, 245 Ga. App. 277, 278 (2) (537 SE2d 720) (2000) (“A party to a crime may be prosecuted and convicted for the commission of the offense regardless of whether anyone else was prosecuted”).

Decided July 11, 2013.

H. Bradford Morris, Jr., Clinton W. Teston, for appiellant.

Lee Darragh, District Attorney, Wanda L. Vance, Assistant District Attorney, for appellee.

Holiman, 313 Ga. App. at 79. And as the dissent in Reid pointed out, whether another occupant of the car was also in constructive possession of the hidden contraband, so that the defendant’s constructive possession was joint instead of sole, was irrelevant to whether the evidence was sufficient to find the defendant guilty. Reid, 212 Ga. App. at 791 (Beasley, P. J., dissenting). The State was not required to prove that Maddox was in sole constructive possession of the contraband in order to obtain a conviction, but could produce evidence proving beyond a reasonable doubt that Maddox had sole or joint constructive possession of the contraband.

Judgment affirmed.

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

       An equal access jury instruction, where supported by some evidence of equal access, is appropriate only to counter an instruction given to the jury on the permissive presumption that the owner or driver of the car has exclusive possession of contraband hidden in the car. Johnson, 280 Ga. at 512-513.


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A13A0805.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. CROFT et al.
    (746 SE2d 285)
   Branch, Judge.

Vincent and Patricia Croft seek a declaration that their homeowner’s insurance carrier is liable for the full replacement cost to rebuild their house'even though it was only partially damaged by fire. The Crofts allege that because the house is located in a flood plain and was damaged by more than 50 percent of its value, a county ordinance requires that any repair to the house must conform to requirements for new construction, which will necessitate rebuilding the house. The carrier informed the Crofts that any damages subject to the “code upgrade exclusion” in the Crofts’ policy would not be covered. In response to motions from both sides, the trial court held that the exclusion was not enforceable, and it therefore granted judgment on the pleadings in favor of the Crofts and denied the carrier’s motion for summary judgment. The carrier appeals. We affirm the denial of the carrier’s motion but reverse the judgment in favor of the Crofts.

A plaintiff is entitled to a judgment on the pleadings under OCGA § 9-11-12 (c) only when there is a complete failure to state a defense to the plaintiff’s claims and, based on the undisputed facts found in the pleadings, the plaintiff is entitled to judgment as a matter of law. Pressley v. Maxwell, 242 Ga. 360 (249 SE2d 49) (1978); Perry Golf Course Dev. v. Housing Auth. of the City of Atlanta, 294 Ga. App. 387 (670 SE2d 171) (2008). For the purposes of the motion, all of the nonmovant’s well-pleaded material allegations are to be taken as true, and all of the movant’s (here, the Crofts) allegations that have been denied are taken as false. Id. See also Alexander v. Wachovia Bank, Nat. Assn., 305 Ga. App. 641 (700 SE2d 640) (2010) (same). And “the trial court is not required to adopt a party’s legal conclusions based on those facts.” (Citation omitted.) Novare Group v. Sarif, 290 Ga. 186, 191 (4) (718 SE2d 304) (2011). Also, a trial court may consider “exhibits that have been incorporated into the pleadings.” (Footnote omitted.) Printis v. Bankers Life Ins. Co., 256 Ga. App. 266 (568 SE2d 85) (2002), aff’d, 276 Ga. 697 (583 SE2d 22) (2003). Our review, in accordance with the above law, is de novo. Perry Golf, supra at 387.

So construed, the pleadings show that the Crofts’ Glynn County home was significantly damaged by fire on August 18, 2011. After the fire, the Crofts received an estimate that the cost of repair was $179,871.19. They also received an appraisal of their home “as of April 17, 2012” that shows the “depreciated cost of building improvements” on the property was $308,133.58. The Crofts applied to Glynn County for a building permit to make repairs based on the $179,871.19 estimate and the appraised value of the home. Glynn County found the permit application to be “noncompliant” because the structure is located in an “AE Special Flood Hazard Area and appears to he substantially damaged.” The County explained:

Buildings having sustained substantial damage must be brought into compliance with the requirements for new construction. Please note that substantial damage means damage of any origin sustained by a structure whereby the cost of restoring the structure to it’s [sic] before damaged condition would equal or exceed 50 percent of the market value of the structure before the damage occurred. Based on your submitted appraisal of $308,133.58, the maximum allowed scope of work would be limited to $154,066.79. Your total cost of $179,871.19 exceeds the allowed value.

The Crofts filed a claim with Georgia Farm Bureau Mutual Insurance Company (“GFB”), their homeowner’s insurance carrier, seeking coverage for their loss, and they eventually forwarded a copy of the Glynn County letter in support of their claim for total replacement of their home. GFB responded and informed the Crofts that GFB’s own appraisal of the damage showed the home could be repaired for $147,186.44, which was less than 50 percent of the appraised value of the home. GFB also stated that their policy contains an exclusion for “law or ordinance issues.”

The Crofts thereafter filed this action seeking a declaration that GFB was required to pay them “the full replacement costs to rebuild their home.” The Crofts incorporated a copy of the policy in their complaint. In addition to the request for declaratory relief, the Crofts alleged that GFB engaged in bad faith and fraudulent conduct, such as by giving them assurances that GFB would “fulfill its obligations pursuant to the Homeowners Policy with the Plaintiffs.” The Crofts also seek punitive damages, litigation expenses, and interest. The Crofts later moved for judgment on the pleadings on the grounds that the policy provides coverage for the full replacement cost to rebuild their home.

GFB moved for summary judgment on the grounds that the Ordinance or Law exclusion is valid and enforceable and that even if the exclusion is not enforceable, issues of fact remain as to whether the actual cost of repairing the Croft home is sufficient to trigger Glynn County’s code upgrade ordinance. The Crofts did not reply to GFB’s motion. In October 2012, the superior court entered an order, which it later amended, in which it held that the Crofts “reasonably expected that if their residence was destroyed their insurance policy would cover the cost to build a replacement building”; that the Crofts suffered a “constructive total loss” as a result of the fire; that the Ordinance or Law exclusion is ambiguous; that the exclusion can reasonably be construed not to preclude coverage; and that as a result, the exclusion “is not applicable and is unenforceable.” The trial court therefore granted the Crofts’ motion for judgment on the pleadings and denied GFB’s motion for summary judgment. GFB appeals both rulings.

1. The trial court erred by granting judgment on the pleadings in favor of the Crofts because the applicable ordinance is not in the record and because, even if we accept the Crofts’ allegations regarding the ordinance, there remain issues of fact on their claim that a county ordinance requires them to rebuild their house.

Both the Crofts’ arguments and the trial court’s decision are based on an ordinance that is not in the record. The Crofts argue that a Glynn County ordinance or building restriction prohibits them from repairing their home without rebuilding it, and the trial court found that “bringing the home into compliance with the current code requirements for new construction in a flood area . . . would require that the house be razed.” But no such ordinance or code can be found in the pleadings or in the record, let alone a certified copy of the ordinance, which is required to properly prove an ordinance; and GFB has not admitted to the wording of any such ordinance. Accordingly, the trial court erred by concluding that the Crofts were required to raze or rebuild their home as a result of a county code or ordinance.

Even if we were to accept the provisions of an ordinance as alleged by the Crofts (or as explained in the Glynn County letter), the pleadings, when construed as set forth above, show that there are issues of material fact regarding whether the ordinance would require the Crofts to rebuild their home. First, there is a material issue regarding the cost to repair the Crofts’ home. GFB’s appraisal of the damage to the property is $147,186.44, which is less than half the appraised value of the house, whereas the Crofts’ appraisal amounts to more than 50 percent of the appraised value of the house. This factual issue is material because under GFB’s appraisal, Glynn County presumably would approve the repairs to the house without requiring the Crofts to conform to new building requirements. Moreover, the policy provides a mechanism for resolving disputes between the insured and the insurer over the appraised amount of a loss; and the parties have yet to resolve the dispute of the amount of loss under that provision. Second, there is a material issue regarding the appraised value of the house. According to the letter from the Glynn County official, the determination of whether a structure has been substantially damaged depends in part on the “market value of the structure before the damage occurred.” (Emphasis supplied.) Whereas the Crofts rely on an appraisal of the property made “as of April 17, 2012,” which is eight months after the fire. Third, the appraisal of the house offered by the Crofts states that $308,133.58 is the “depreciated cost of building improvements.” The Crofts have not shown that this figure is equivalent to the “market value of the structure before the damage occurred,” the standard stated in the Glynn County official’s letter.

In sum, there are issues of fact and law as to whether the Crofts are required to raze and rebuild their home as a result of a Glynn County ordinance, which is an essential part of their claim that GFB should be required to compensate them for the replacement cost of the entire structure. The trial court therefore erred by granting judgment on the pleadings in the Crofts’ favor.

2. GFB also contends the trial court erred by denying its motion for summary judgment because the Ordinance or Law exclusion is unambiguous, valid and enforceable. But summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). As already shown, and as GFB admits, there are genuine issues of material fact as to whether the Ordinance or Law exclusion is triggered with regard to the Crofts’ insurance claim.

In its brief in the trial court, GFB impliedly acknowledges that the Crofts’ case turns on an issue of fact and that the question of whether the Ordinance or Law exclusion applies to the Crofts’ insurance claim depends on resolution of the issue of fact:

This declaratory judgment case arises out of a dispute over whether the cost to repair the damage to the plaintiffs’ home exceeds fifty percent of the value of the home and, if so, whether a code upgrade exclusion in GFB’s homeowner’s policy is valid.

GFB further acknowledges that if the Crofts had utilized GFB’s lower appraisal of the damage to the house in their application for a building permit from Glynn County, “Glynn County’s code upgrade ordinance would not apply.” Similarly, on appeal GFB argues that it was error for the trial court to conclude that the code upgrade ordinance “is necessarily triggered.”

Decided July 11, 2013.

James, Bates, Brannan & Grover, Duke R. Groover, Bradley J. Watkins, for appellant.

Alan D. Tucker, for appellees.

We agree, as shown in Division 1, that there are issues of fact as to whether the Crofts are impacted by any Glynn County ordinances with regard to repairing their house. And we conclude that it would be premature for this Court to determine in the abstract whether the Ordinance or Law exclusion in the Crofts’ policy is enforceable as a matter of law. See generally Cheeks u. Miller, 262 Ga. 687, 688 (425 SE2d 278) (1993) (“A controversy is justiciable when it is definite and concrete, rather than being hypothetical, abstract, academic, or moot.”) (citation omitted). See, e.g., Ga. Farm Bureau Mut. Ins. Co. v. Franks, 320 Ga. App. 131, 139 (3) (739 SE2d 427) (2013) (physical precedent only) (where insurer had not shown that the value of the dwelling on the date of loss triggered application of Georgia’s Valued Policy Statute, OCGA § 33-32-5, the insurer’s argument regarding application of the statute was not ripe for review in this Court).

Because GFB has not shown that it is entitled to summary judgment, we find no error in the trial court’s denial of its motion.

Judgment affirmed in part and reversed in part.

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

       The policy sets forth the “Ordinance or Law” exclusion, as follows:
      Section I - Exclusions
      1. We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss.
      a. Ordinance or Law, meaning enforcement of any ordinance or law regulating the construction, repair, or demolition of a building or other structure, unless specifically provided under the policy.
      For an additional premium, GFB offers a separate endorsement providing coverage for property loss caused by the enforcement of an ordinance or law. But the Crofts did not purchase such an endorsement for the subject property.

       In fact, the letter from Glynn County does not state that the house has to he razed; it only states that the Crofts must submit plans that bring the house into compliance with new building requirements.

        Police Benevolent Assn. of Savannah v. Brown, 268 Ga. 26, 27 (2) (486 SE2d 28) (1997) (prior to January 1, 2013, proper method of proving an ordinance is “by production of the original or of a properly certified copy”) (citation omitted). Prime Home Properties v. Rockdale County Bd. of Health, 290 Ga. App. 698, 700 (1) (660 SE2d 44) (2008). See also OCGA § 24-2-221 (effective January 1, 2013, judicial notice may be taken of a certified copy of any ordinance or resolution under specified circumstances).

       The Crofts’ brief contains wholly unsupported assertions that GFB’s repair estimate was an attempt “to defraud Glynn County into giving the Appellees a building permit.” “We will not consider on appellate review any assertions of fact unsupported by the trial record.” (Citation omitted.) Tarleton v. Griffin Fed. Sav. Bank, 202 Ga. App. 454, 455 (2) (a) (415 SE2d 4) (1992).


text:
    A13A0387.
    WALKER v. THE STATE.
    (744 SE2d 385)
   Branch, Judge.

Xavier Deval Walker was tried by an Oconee County jury and convicted of trafficking in cocaine, obstruction of a law enforcement officer, and a violation of Georgia’s window tint statute. He now appeals from the denial of his motion for a new trial, asserting that the court below erred in denying his motion to suppress evidence obtained during what Walker contends was an illegal traffic stop. We find no error and affirm.

At a hearing on a motion to suppress, the trial judge sits as the trier of fact. Gonzalez v. State, 299 Ga. App. 777, 778 (1) (683 SE2d 878) (2009). On appeal from the grant or denial of such a motion, therefore, this Court

must construe the evidence most favorably to uphold the findings and judgment of the trial court, and that court’s findings as to disputed facts and credibility must be adopted unless clearly erroneous. However, we owe no deference to the trial court’s conclusions of law and are instead free to apply anew the legal principles to the facts.

(Punctuation and footnotes omitted.) State v. Able, 321 Ga. App. 632 (742 SE2d 149) (2013).

Viewed in the light most favorable to the trial court’s ruling, the record shows that Georgia State Patrol Corporal Charles Chapeau is assigned to the GSP’s Criminal Interdiction Unit. On November 26, 2009, Chapeau was contacted by a DEA agent associated with a regional drug task force in the metropolitan Atlanta area. The DEA agent informed Chapeau that while conducting surveillance on a suspected drug trafficker, task force agents had observed the suspect meeting with an unknown man at a restaurant in Conyers. Agents ran the license plate of the Toyota Scion driven by the unknown man and learned that the car was registered to Walker at an Athens address. The DEA agent also told Chapeau that at some point the task force might need his assistance in stopping the car.

The following day, the DEA agent contacted Chapeau again and informed him that agents believed that Walker was driving the Scion from Athens to Atlanta. The DEA agent provided Chapeau with a complete description of the car and its license plate number. Chapeau was then in contact with other task force officers who stated that they would be stationed in Monroe and would be looking for the Scion as it traveled through that area. These officers subsequently contacted Chapeau and informed him Walker’s car had passed through Monroe, was traveling on Highway 78, and that the officers were following behind it. The officers also conveyed to Chapeau that the window tint on the Scion appeared to be darker than the legal limit.

In response to this information, Chapeau proceeded to Highway 78 in the Lawrenceville area, stationed his patrol car in the median, and began a look-out for Walker’s car. As the Scion passed in front of him, Chapeau could not see the driver through the car’s windows, even though the patrol car’s headlights shone directly on the Scion. Based on his training and experience, Chapeau concluded that the window tint on Walker’s car was darker than the legal limit, and he therefore initiated a traffic stop of the vehicle.

Chapeau directed Walker to exit his car and come to the side of the road, between the Scion and the patrol car. The officer then explained to Walker the reason for the traffic stop. According to Chapeau, Walker seemed to be “overly nervous,” so he began making small talk with Walker in an effort to get Walker to relax. During this initial conversation, Chapeau realized that he was wearing a portable radio that only worked in Atlanta, where he had been earlier that day. Chapeau therefore returned to his patrol car and retrieved a portable radio that worked in the Lawrenceville area. Chapeau testified that he paused his encounter with Walker and changed radios for personal safety reasons, as he was the only officer at the scene.

After changing radios, Chapeau returned to where Walker was standing and began to write out a warning ticket for the window tint violation. As he wrote the warning, Chapeau continued to question Walker about things that were unrelated to the tint of his car windows, and at one point asked if he could search Walker’s car. Walker declined the request, and Chapeau, who had not yet completed writing the warning, returned to his patrol car to retrieve the equipment he used to measure window tint. As Chapeau walked back toward his vehicle, Walker entered the Scion through the front passenger door, retrieved a package from underneath the driver’s seat, and fled through the driver’s door with the package. Chapeau attempted to stop Walker after he re-entered the Scion by firing taser darts at him, but was unsuccessful.

As Walker exited the Scion, the package broke and a substance that appeared to be cocaine spilled out. Walker fled down Highway 78 on foot and was apprehended by the drug task force officers who had followed his car from Monroe. A total of ten minutes elapsed from the time Chapeau initiated the traffic stop and the time Chapeau informed dispatch that Walker had been taken into custody. A test performed on the Scion’s windows following Walker’s arrest showed that the window tint was illegal.

On appeal, Walker contends that the trial court erred in denying his motion to suppress the evidence obtained as a result of the traffic stop because Chapeau lacked a legal basis for the stop. He further asserts that even if the initial stop was legal, Chapeau illegally prolonged his detention. We find no merit in either of these assertions.

1. Walker first argues that the stop of his car was illegal, because Chapeau was using the alleged window tint violation as a pretext for the traffic stop in the hopes of finding drugs. This argument finds no support in the law.

In Whren v. United States, 517 U. S. 806 (116 SCt 1769, 135 LE2d 89) (1996), the United States Supreme Court held that when an officer witnesses a traffic offense, the resulting traffic stop does not violate the Fourth Amendment even if the officer has ulterior motives in initiating the stop. Thus, where a traffic stop is based on a police officer’s observation of “even a minor traffic violation, a suppression motion arguing that the stop was pretextual must fail.” (Punctuation andfootnote omitted). Quick v. State, 279 Ga. App. 835, 837 (632 SE2d 742) (2006). See also Somesso v. State, 288 Ga. App. 291, 294 (2) (b) (653 SE2d 855) (2007) (“the standard for measuring pretextual stops is” whether the officer had a valid basis for the stop, “not whether the officer’s primary motivation for stopping a car was to interdict drugs”) (footnote omitted).

Here, the evidence showed that Chapeau stopped Walker’s car because he believed (correctly) that the car’s window tint violated state law. And because the officer had a valid basis for the stopping of Walker’s car, that stop did not violate the Fourth Amendment. Quick, supra. See also Gonzalez, supra at 779 (1) (rejecting defendant’s argument that the stop of his car for a traffic violation was illegal “because officers followed him with the admitted intent of stopping him for a traffic violation so that they could conduct a drug investigation”).

2. Walker further argues that even if the initial stop of his car was legal, by the time police discovered the cocaine the stop had evolved into an illegal detention. Again, we disagree.

As a general rule, an officer who has initiated a valid traffic stop may detain the driver only so long as is necessary to accomplish the purpose of the stop. Young v. State, 310 Ga. App. 270, 272 (712 SE2d 652) (2011) (“[o]nce a valid traffic stop has been effected, the Fourth Amendment prohibits the officer from unreasonably prolonging the stop beyond the time required to fulfill the purpose of the stop”). Thus, “[a] seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.” Illinois v. Caballes, 543 U. S. 405, 407 (125 SCt 834, 160 LE2d 842) (2005).

In this case, Walker contends that Chapeau illegally prolonged the traffic stop by requiring him to exit the car; asking him a number of questions that were unrelated to the window tint violation; interrupting the writing of the warning to change his portable radio; and delaying the retrieval of his window tint testing equipment until several minutes into the stop. This evidence, however, does not demand a finding that Chapeau illegally prolonged Walker’s detention.

A police officer’s request that a driver exit his car to speak with the officer represents a legitimate “extension of the constitutionally valid detention resulting from [a] traffic stop.” Salmeron v. State, 280 Ga. 735, 737 (1) (632 SE2d 645) (2006). Additionally, “so long as the questioning does not unreasonably prolong the detention[,]” an officer may “question the vehicle’s driver... during the course of the stop, and even ... ask questions unrelated to the purpose of a valid traffic stop.” (Punctuation and footnote omitted.) Young, supra at 272-273. In determining whether such questioning impermissibly prolonged a traffic stop, “the dispositive factor ... is not the nature or subject of the officer’s questioning, but whether that questioning took place during [the driver’s] otherwise lawful detention for committing the traffic violations in the officer’s presence.” Salmeron, supra at 736 (1). Similarly, any other incidental conduct of the officer, such as retrieving necessary items from his patrol car, will not impermissibly prolong the stop and result in an illegal detention as long as the officer is working to accomplish the purpose of the traffic stop. Id. at 736. See also Young, supra at 272 (“a reasonable time to conduct a traffic stop includes the time necessary for the officer to run a computer check on the validity of the driver’s license and registration, and to check for outstanding warrants and/or criminal histories on the driver and other occupants”) (footnotes omitted).

Here, Chapeau testified that all of the “delaying” conduct that Walker complains of, including the questions unrelated to the window tint, the changing of his portable radio, and the attempted retrieval of his window tint testing equipment, occurred during the time Chapeau was obtaining the information necessary to complete the warning he planned to issue Walker. In its order denying the motion to suppress, the trial court specifically found Chapeau’s testimony on these issues credible, and we are bound by that finding. “It was for the trial court, sitting as finder of fact, to gauge the credibility of the officer’s testimony,” including his testimony that all of the conduct at issue occurred as a necessary part of citing Walker for a window tint violation. (Citation omitted.) Warren v. State, 314 Ga. App. 477, 482 (3) (724 SE2d 404) (2012). See also Hayes v. State, 292 Ga. App. 724, 724 (665 SE2d 422) (2008) (in reviewing a trial court’s order on a motion to suppress, this Court “cannot, and will not, usurp the authority of the trial judge to consider such factors as demeanor and other credibility-related evidence in reaching its decision”) (punctuation and footnote omitted). Given this evidence, the trial court did not err in finding that the traffic stop was not impermissibly prolonged and that therefore Walker was not illegally detained. See Salmeron, supra at 736 (1); Bell v. State, 295 Ga. App. 607, 610 (2) (672 SE2d 675) (2009) (an illegal detention occurs only where the “officer continues to detain the subject after the conclusion of the traffic stop without reasonable suspicion of criminal activity”) (punctuation and footnote omitted; emphasis in original).

Decided June 12, 2013

Reconsideration denied July 12, 2013

James D. Crowe, for appellant.

Kenneth W. Mauldin, District Attorney, Kristopher M. Bolden, James V. Chafin, Assistant District Attorneys, for appellee.

Judgment affirmed.

Ellington, C. J., concurs. Phipps, P. J., concurs in judgment only.

       OCGA § 16-13-31 (a) (1).

       OCGA § 16-10-24 (a).

       OCGA § 40-8-73.1 (b) (2).

       Chapeau’s experience included his 13 years as a state patrol officer, as well as time spent during his high school and college years working at a business that tinted car windows.

       There is no videotape of the traffic stop because the recorder in Chapeau’s patrol car had run out of tape before Chapeau initiated the stop. Chapeau did not realize this fact until after the traffic stop had been completed.

       Under OCGA § 40-8-73.1 (b) (2), it is illegal for window tint to “reduce light transmission through the windshield or window to less than 32 percent, plus or minus 3 percent.” The window tint on the Scion reduced the light transmission through the window to 4 percent.


author: Phipps, Chief Judge.

text:
    A13A0151.
    DAVIS v. THE STATE.
    (747 SE2d 19)
   Phipps, Chief Judge.

Charles Davis was convicted in the Superior Court of Morgan County of two counts of theft by deception, in connection with his receipt of funds sent by wire transfer. Davis appeals, contending, among other things, that the trial court erred by denying his motion for new trial, in which he complained that the state had failed to prove that venue was proper in Morgan County. Because there was no evidence that Davis had exercised control over the funds in Morgan County, we reverse. However, inasmuch as “[t]he failure to establish venue does not bar retrial in a court where venue is proper and proven,” the state is authorized to retry Davis in the proper venue.

1. “Venue is a jurisdictional fact[ ] and is an essential element in proving that one is guilty of the crime charged. Like every other material allegation in the indictment, venue must be proved by the prosecution beyond a reasonable doubt.” Venue is a matter to be decided by the jury, and the jury’s decision will not be set aside if there is any evidence to support it.

“A person commits the offense of theft by deception when he obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property.” In a theft by deception case, “the crime shall be considered as having been committed in any county in which the accused exercised control over the property which was the subject of the theft.” Consequently, the state bears the burden of proving that the defendant exercised control over the property taken in the county where the case was prosecuted.

In about April 2009, G. E. received a telephone call in her Morgan County home and was told that she had won a contest. G. E. did not know the identity of the caller (and it was stipulated that there was no evidence that Davis had ever telephoned G. E.). The caller told G. E. that to claim the prize she would have to pay fees and taxes, which funds she was told to send by wire transfer. The caller directed G. E. to wire the funds to several individuals in the “Atlanta area,” including Davis.

In September 2009, from drug stores in Morgan County, G. E. sent two wire transfers of funds to Davis. Davis, who resided in Marietta, picked up the funds in grocery and check cashing stores on Delk Road in Marietta and on Cobb Parkway in Smyrna. G. E. never received any prize.

When asked at trial by the prosecutor “what county and state did [G. E.] wire the money pursuant to the instructions she received on her telephone?”, an investigator with the sheriff’s department testified: “Cobb County, Georgia.” The prosecutor then clarified: “No. I mean what county and state did [G. E.] wire it from?” The officer replied, “Oh. Morgan County, Georgia. I’m sorry.” Having thus adduced no evidence that Davis controlled any of the funds in Morgan County, the state failed to prove that venue was proper in that county.

The state posits, however, that it had a choice of venue in either county — Morgan County because the funds were taken from or relinquished by G. E. in Morgan County, or Cobb County because Davis received the funds in Cobb County. But the state’s contention essentially disregards the applicable law: in a theft by deception case, “the crime shall be considered as having been committed in any county in which the accused exercised control over the property which was the subject of the theft.”

The cases upon which the state relies to support its position, Gautreaux v. State and Hawkins v. State, are inapposite. In those cases, unlike in the instant case, there was evidence that the accused had exercised control over the property at issue in the county in which he was being prosecuted. Because in this case the state failed to demonstrate the existence of venue in Morgan County beyond a reasonable doubt, Davis’s convictions of theft by deception must be reversed. As noted above, he may be retried in the proper venue.

2. In light of our holding in Division 1, supra, we do not reach Davis’s remaining claims of error.

Judgment reversed.

Ellington, P. J., and Branch, J., concur.

Decided July 12, 2013.

Green B. Moore III, for appellant.

FredricD. Bright, District Attorney, Alison T Burleson, Assistant District Attorney, for appellee.

       OCGA § 16-8-3.

        See Bradley v. State, 272 Ga. 740, 744 (3) (533 SE2d 727) (2000) (citation and punctuation omitted).

       Id.

        Bell v. State, 284 Ga. 790, 792 (1) (671 SE2d 815) (2009) (citation and punctuation omitted).

        Jones v. State, 245 Ga. 592, 596 (2) (266 SE2d 201) (1980).

       OCGA § 16-8-3 (a).

       OCGA§ 16-8-11 (applies to theft prosecutions under OCGA §§ 16-8-2 through 16-8-9 and 16-8-13 through 16-8-15); Moore v. State, 153 Ga. App. 49 (1) (264 SE2d 538) (1980).

        See Bearden v. State, 316 Ga. App. 721, 724 (2) (728 SE2d 874) (2012); Williams v. State, 297 Ga. App. 150, 151 (2) (676 SE2d 805) (2009).

       See Moore, supra (reversing theft by deception conviction where there was no evidence that the accused had exercised, in the county where he was being prosecuted, any control over the property which was the subject of the theft); see generally Naylor v. State, 257 Ga. App. 899 (572 SE2d 410) (2002) (reversing Fayette County theft by taking conviction where the victim wired funds from Fayette County to the accused in Florida, but the accused never possessed or exercised control over the funds in Fayette County). Compare Gould v. State, 273 Ga. App. 155, 157 (2) (614 SE2d 252) (2005) (in theft by taking case, venue was established in Floyd County because evidence showed that accused had exercised control over victim’s money in that county; although accused asserted that there was no evidence that he had received or spent the victim’s money in Floyd County, there was evidence that the accused resided in Floyd County, directed his agent to transfer the money while (his agent believed) the accused was residing in Floyd County, and directed said transfers using letterheads showing a Floyd County address and phone number).

       OCGA § 16-8-11 (emphasis supplied).

       314 Ga. App. 103 (722 SE2d 915) (2012).

       167 Ga. App. 143 (305 SE2d 797) (1983).

        Gautreaux, supra at 104-106 (1); Hawkins, supra at 147-148 (5).

       See Moore, supra; see generally Naylor, supra at 901.

       See Bradley, supra.


author: McFADDEN, Judge.

text:
    A13A0206.
    MURPHY v. MURPHY.
    (747 SE2d 21)
   McFADDEN, Judge.

Nancy Michelle Murphy appeals an interlocutory order denying her motion to recuse the trial court judge in this change-of-custody case. Because we lack jurisdiction, we dismiss the appeal.

Nancy Murphy and John Murphy were divorced in 2006. In 2012, John Murphy filed this action, seeking to modify the child custody provisions of the parties’ divorce decree. The case was assigned to Judge A. Quillian Baldwin, Jr. Nancy Murphy moved to disqualify Judge Baldwin. Judge Baldwin denied the motion, and Nancy Murphy filed a notice of appeal. The case remains pending below.

“This [c]ourt has a duty to inquire into its jurisdiction to entertain each appeal.” (Citation omitted.) Hammonds v. Parks, 319 Ga. App. 792, 793 (2) (735 SE2d 801) (2012). Under the version of OCGA § 5-6-34 (a) (11) in effect when Nancy Murphy filed her notice of appeal, a party could file a direct appeal from “[a]ll judgments or orders in child custody cases including, but not limited to, awarding or refusing to change child custody....” See generally Collins v. Davis, 318 Ga. App. 265, 268-269 (1) & n. 17 (733 SE2d 798) (2012) (holding that clear and unambiguous language of former OCGA § 5-6-34 (a) (11) authorized direct appeal of any order in proceeding in which child’s legal custody, physical custody or visitation was an issue, and noting that it was for legislature to narrow scope of this right of direct appeal). Such orders were no longer subject to the interlocutory appeal procedures of OCGA § 5-6-34 (b) or the discretionary appeal procedures of OCGA § 5-6-35 (a) (2). See Taylor v. Curl, 298 Ga. App. 45 (679 SE2d 80) (2009).

Effective May 6, 2013, however, the legislature amended OCGA § 5-6-34 (a) (11) to provide that a party can file a direct appeal from “[a]ll judgments or orders in child custody cases awarding, refusing to change, or modifying child custody. . . .” Ga. L. 2013, p. 735, § 1/SB 204. The uncodified preamble to the amendment states that its purpose is “to limit the scope of judgments or orders in child custody cases which are subject to direct appeal.” And although laws that affect substantive rights apply prospectively only, procedural laws, which prescribe the methods of enforcement of rights, duties, and obligations, apply retroactively. Nathans v. Diamond, 282 Ga. 804, 808-809 (2) (654 SE2d 121) (2007). “[W]here a statute governs only procedure of the courts... it is to be given retroactive effect absent an expressed contrary intention.” Polito v. Holland, 258 Ga. 54, 55 (2) (365 SE2d 273) (1988).

Nancy Murphy filed her notice of appeal from the order denying her motion to recuse. That order does not award, refuse to change, or modify child custody. Consequently, the order is not appealable under OCGA § 5-6-34 (a) (11), we lack jurisdiction, and the appeal must be dismissed. See Stevens v. State, 292 Ga. 218 (734 SE2d 743) (2012) (dismissing direct appeals from trial court’s denial of the defendants’ motions to dismiss the indictment due to an alleged constitutional speedy trial violation because eight days before, the Supreme Court had determined that such orders were no longer directly appealable but had to follow the interlocutory application procedures).

To the extent that Nancy Murphy argues that we have jurisdiction over her appeal because orders denying motions to recuse are directly appealable under the collateral order doctrine, we disagree. The Supreme Court of Georgia has held that a party who wants to appeal a pretrial ruling on a recusal motion has the option to seek an interlocutory appeal or to appeal directly after an adverse final judgment. See White v. Lumpkin, 272 Ga. 398 (529 SE2d 879) (2000); Chandler v. Davis, 269 Ga. 727, 728 (504 SE2d 440) (1998). We, too, have held that the appeal of an interlocutory order denying a motion to recuse “requires compliance with the interlocutory appeal provisions of OCGA § 5-6-34 (b).” (Citation omitted.) Ellis v. Stanford, 256 Ga. App. 294, 295 (2) (568 SE2d 157) (2002). See also Rolleston v. Glynn County Bd. of Tax Assessors, 213 Ga. App. 552, 553 (445 SE2d 345) (1994); In re Booker, 186 Ga. App. 614 (367 SE2d 850) (1988).

In fact, the interlocutory appeal provision of OCGA § 5-6-34 (b) explicitly provides:

Where the trial judge in rendering an order, decision, or judgment, not otherwise subject to direct appeal, including but not limited to the denial of a defendant’s motion to recuse in a criminal case, certifies within ten days of entry thereof that the order, decision, or judgment is of such importance to the case that immediate review should be had, the Supreme Court or the Court of Appeals may thereupon, in their respective discretions, permit an appeal to be taken from the order, decision, or judgment if application is made thereto within ten days after such certificate is granted. . . .

(Emphasis supplied.)

Nonetheless, in Braddy v. State, 316 Ga. App. 292 (729 SE2d 461) (2012), without acknowledging the prior cases or the language of OCGA § 5-6-34 (b), we held that an order denying a motion to recuse met the requirements for application of the collateral order doctrine because the ruling

concerned] a matter wholly unrelated to the basic issues to be decided in the [underlying] case. Whether the trial judge could properly preside over the case would be unresolved if review had to await final judgment. Finally, the order resolve [d] the matter completely and nothing remain[ed] in the underlying case to affect it.

Id. at 293 (1). This holding misapplied the collateral order doctrine and directly conflicted with OCGA § 5-6-34 (b)’s explicit inclusion of “the denial of a defendant’s motion to recuse in a criminal case” in the category of orders needing a certificate of immediate review, thereby rendering the provision meaningless.

In Scroggins v. Edmondson, 250 Ga. 430, 431-432 (1) (c) (297 SE2d 469) (1982), our Supreme Court adopted the test from Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (69 SCt 1221, 93 LE 1528) (1949), for determining whether an order falls within the collateral order doctrine. Under that test, the collateral order doctrine applies if the order (1) completely and conclusively decides the issue on appeal such that nothing in the underlying action can affect it; (2) resolves an issue that is substantially separate from the basic issues in the complaint; and (3) might result in the loss of an important right if review had to await final judgment, making the order effectively unreviewable on appeal. See Scroggins, 250 Ga. at 432 (1) (c). Braddy misapplied the “effectively unreviewable” prong of the test.

In Firestone Tire & Rubber Co. v. Risjord, 449 U. S. 368 (101 SCt 669, 66 LE2d 571) (1981), the United States Supreme Court stressed the stringency of the “effectively unreviewable” prong of the Cohen test: “To be appealable as a final collateral order, the challenged order must constitute a complete, formal, and, in the trial court, final rejection, of a claimed right where denial of immediate review would render impossible any review whatsoever.” (Citations and punctuation omitted; emphasis supplied.) Id. at 376. In Braddy, we held that this prong was satisfied because “[w]hether the trial judge could properly preside over the case would be unresolved if review had to await final judgment.” Braddy, 316 Ga. App. at 293 (1). But orders denying motions to recuse may be reviewed and relief afforded after the entry of final judgment. In Johnson v. State, 278 Ga. 344, 349 (3) (602 SE2d 623) (2004), for example, the Supreme Court reversed a defendant’s convictions for felony murder and related crimes because the trial court should have granted her motion to recuse. In Gillis v. City of Waycross, 247 Ga. App. 119, 122 (543 SE2d 423) (2000), an appeal of a final judgment entered after a three-day trial, we remanded the case so that a different judge could consider the plaintiffs’ motion to recuse. Because review after entry of final judgment of orders denying motions to recuse can protect parties’ interests adequately, such orders are not appealable as collateral orders. And to hold otherwise ignores the explicit language of OCGA § 5-6-34 (b). We therefore overrule Braddy, 316 Ga. App. at 292.

Decided July 12, 2013

Millard C. Farmer, Jr., Alfred L. King, Jr., for appellant.

Glover & Davis, Peter A. Durham, Clifton M. Sandlin, Taylor B. Drake, for appellee.

Other courts that have considered the issue generally have held that the collateral order exception to the final judgment rule does not encompass an order denying a motion to recuse because the parties’ interests can be protected adequately in an appeal from a final judgment. See, e.g., In re Martinez-Catala, 129 F3d 213, 217 (II) (1st Cir. 1997); In re Corrugated Container Antitrust Litigation, 614 F2d 958, 960-961 (I) (5th Cir. 1980); State of Florida v. Countrywide Truck Ins. Agency, 703 NW2d 905 (Neb. 2005); State v. Forte, 553 A2d 564, 565 (Vt. 1988); Kreig v. Krieg, 743 A2d 509, 511 & n. 4 (Pa. Super. 1999). In other words, because recusal questions are fully reviewable on appeal from a final judgment, the collateral order doctrine does not apply.

Appeal dismissed.

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


author: McFadden, Judge.

text:
    A13A0236.
    THE STATE v. TAKYI.
    (747 SE2d 24)
   McFadden, Judge.

The State appeals the trial court’s grant of Elizabeth Takyi’s motion to dismiss the indictment against her for violation of her constitutional right to a speedy trial. This is the second appearance of this case before this Court. See State v. Takyi, 314 Ga. App. 444 (724 SE2d 459) (2012). In the prior appeal, we vacated the trial court’s order and remanded the case for reconsideration based on our finding that the trial court had made factual and legal errors. Id. On remand, the trial court again granted Takyi’s motion to dismiss. Because we conclude that the trial court correctly followed the roadmap we set out in our earlier opinion and did not abuse its discretion in weighing the relevant factors for determining whether there has been a constitutional speedy trial violation, we affirm.

On October 3, 2008, Takyi was arrested for driving under the influence of alcohol and ordered to appear in municipal court on November 19,2008. The matter was continued until January 5,2009, when Takyi appeared at an arraignment in municipal court and demanded a jury trial. As a result, the case was bound over to the State Court of Fulton County. The relevant facts, as set out in our earlier opinion, are:

On January 22, 2010, just over a year later, Robert Chestney of the Chestney Law Firm sent a letter to the Fulton County Solicitor-General inquiring about the status of the case and stating that his client requested “that the charges against her be brought to trial at the earliest possible opportunity, asserting her right to a speedy trial under the constitution.” Chestney raised a concern about how the case was affecting his client’s immigration status, and he concluded with the following request: “please try to locate this case and accuse it as quickly as possible, so we can get it to trial before it results in her losing everything she has worked so hard for.” The solicitor-general responded three days later and explained that there was nothing in the county computer system to indicate that the county had received the paperwork; she asked for the traffic ticket to facilitate locating the file.
On February 4, 2010, 13 days later, the solicitor-general filed formal charges against Takyi in the state court. On February 22, Takyi, through attorney Rebecca Kozycki of the Chestney Law Firm, filed a demand for speedy trial pursuant to the United States and Georgia Constitutions and pursuant to OCGA § 17-7-170.

Takyi, 314 Ga. App. at 444.

On March 15, 2010, Takyi filed a motion to dismiss on the ground that her constitutional right to a speedy trial had been violated. On April 27, 2010, the court held a hearing to address the motion, where Takyi and three of her attorneys testified. Two days later, and approximately 18 months from the date of Takyi’s arrest, the trial court entered an order granting her motion to dismiss on speedy trial grounds. The State appealed, and we reversed.

In evaluating constitutional speedy trial claims, the trial court must first determine whether the pretrial delay is long enough to be considered presumptively prejudicial. Doggett v. United States, 505 U. S. 647, 651-652 (2) (112 SCt 2686, 120 LE2d 520) (1992). If so, the court must conduct a four-factor balancing test evaluating the length of the pretrial delay, the reason for the delay, the defendant’s assertion of her right to a speedy trial, and the prejudice to the defendant. Barker v. Wmgo, 407 U. S. 514, 530 (92 SCt 2182, 33 LE2d 101) (1972).

In our earlier opinion we found that: (1) the trial court conflated the threshold inquiry of presumptive prejudice with the first factor regarding the length of the pretrial delay; (2) the trial court failed to consider evidence that Takyi knew her decision to seek a jury trial would cause some delay; (3) the trial court’s finding as to Takyi’s assertion of her right appeared to be based in part on an error of law as to when she could assert that right and on improper hearsay evidence; and (4) the trial court considered inadmissible hearsay in making its finding of prejudice to the defendant. Takyi, 314 Ga. App. at 446-448 (1).

On remand, the trial court held a second hearing on June 28, 2012, where it solicited argument but heard no additional testimony or evidence from the parties. Following the hearing, the trial court entered an order again granting Takyi’s motion to dismiss. The state filed the current appeal challenging this ruling.

Constitutional speedy trial claims are analyzed according to the framework laid out in Barker v. Wingo, 407 U. S. 514, and Doggett v. United States, 505 U. S. 647. The analysis has two stages.

In the first stage of the analysis, the court must determine whether the pretrial delay is sufficiently long to be considered presumptively prejudicial. The pretrial delay is measured from the accused’s arrest, indictment, or other formal accusation[,] whichever comes first[,] to the trial or, if the accused files a motion to dismiss the indictment, until the trial court denies the motion. If the delay has passed the point of presumptive prejudice, the court must proceed to the second step of the Barker-Doggett analysis, which requires the application of a delicate, context-sensitive, four-factor balancing test to determine whether the accused has been deprived of the right to a speedy trial. The four factors to be considered in the case of presumptively prejudicial delay are (a) the length of the delay, (b) the reason for the delay, (c) the defendant’s assertion of his right, and (d) the prejudice to the defendant.

Moore v. State, 314 Ga. App. 219, 220-221 (723 SE2d 508) (2012) (citations and punctuation omitted). See also State v. Porter, 288 Ga. 524, 525-526 (2) (705 SE2d 636) (2011); Ruffin v. State, 284 Ga. 52, 55 (2) (663 SE2d 189) (2008). We review the trial court’s ruling on a motion to dismiss on speedy trial grounds for abuse of discretion. Ruffin, 284 Ga. at 65. We defer to the trial court’s findings of fact and its weighing of disputed facts. Williams v. State, 277 Ga. 598, 599 (1) (592 SE2d 848) (2004). We turn then to the first stage of the analysis.

1. Presumptive prejudice.

Pretrial delay is presumptively prejudicial if it approaches one year. Doggett, 505 U. S. at 652, n. 1. “Where a trial has not occurred, the delay should be calculated from the date of arrest or other formal accusation to the date on which a defendant’s speedy trial motion was granted or denied.” Porter, 288 Ga. at 526 (2). Additionally,

if the trial court enters a new order [granting or] denying a motion to dismiss on speedy trial grounds, the length of the pretrial delay runs to the entry of the new order rather than the original order, where an appellate court vacated the original order and remanded for the entry of a new order expressly applying the Barker-Doggett framework.

Richardson v. State, 318 Ga. App. 155, 158 (1) (733 SE2d 444) (2012); see also Goddard v. State, 315 Ga. App. 868, 870-871 (729 SE2d 397) (2012).

Here, the trial court found that the 18-month pretrial delay was presumptively prejudicial. We agree that the pretrial delay was presumptively prejudicial. Indeed, the trial court’s calculations understated the length of the delay. Because the trial court entered a second order subsequent to our decision to vacate and remand, the trial court erred in calculating the length of the delay as only the initial 18-month delay. The length of the delay should have been calculated from Takyi’s October 3, 2008 arrest to the trial court’s August 22, 2012 order again granting her motion to dismiss after remand, which would have added 28 months to the length of the delay, for a total delay of 46 months. Having resolved the threshold question, the trial court correctly proceeded to the Barker-Doggett four-factor balancing test.

2. The Barker-Doggett factors.

In this stage of the analysis, a court should consider “whether delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay’s result.” Doggett, 505 U. S. at 651.

(a) Whether the pretrial delay was uncommonly long.

To determine whether a pretrial delay is uncommonly long, the court must analyze “the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.” Ward v. State, 311 Ga. App. 425, 428 (2) (715 SE2d 818) (2011).

In the prior appeal, we held that, although the trial court failed to clearly separate the threshold inquiry of length of the delay from the question of whether the 18-month delay was uncommonly long, the trial court properly found that the pretrial delay was uncommonly long. The trial court corrected this error in its second order and explicitly found that the 46-month delay was uncommonly long, “especially for misdemeanor traffic offenses with one witness and no follow up investigation.” See State v. Buckner, 292 Ga. 390, 393 (3) (a) (738 SE2d 65) (2013) (the complexity and seriousness of the charges at issue are relevant in weighing the length of the delay); Barker, 407 U. S. at 530-533. Because there was some evidence of an uncommonly long delay, the trial court did not abuse its discretion in weighing this factor in Takyi’s favor.

(b) Whether the government or the defendant is more to blame for the delay.

As to the second Barker-Doggett factor, courts must consider “both the reason for the delay and whether this is attributable to the defendant or the State.” Richardson, 318 Ga. App. at 159 (citation and punctuation omitted); Sechler v. State, 316 Ga. App. 675, 679 (2) (b) (730 SE2d 142) (2012). “Where no reason appears for a delay, we must treat the delay as caused by the negligence of the State in bringing the case to trial.” Boseman v. State, 263 Ga. 730, 733 (1) (438 SE2d 626) (1994). See Kemp v. State, 314 Ga. App. 327, 331 (724 SE2d 41) (2012).

In the prior appeal, we found that “the definitive nature of the trial court’s conclusion show[ed] that the court did not consider the evidence that Takyi knew there would be some delay” when it decided that this factor weighed in favor of Takyi. Takyi, 314 Ga. App. at 446. To correct this error, in its new order the trial court expressly found that Takyi did seek a jury trial knowing this could cause additional delay in her case. Nonetheless, when weighing the reason for the delay, the trial court, in its discretion, did not weigh Takyi’s exercise of her right to a jury trial against her. Even if the trial court had done so, this minor delay would have been overcome by the State’s lengthy, unexplained delay in formally accusing Takyi. See State v. Bazemore, 249 Ga. App. 584, 585-586 (1) (549 SE2d 426) (2001).

The record does not explain the initial 18-month delay between Takyi’s arrest and the filing of the accusation. There is no evidence that the State intentionally caused the delay or sought to undermine Takyi’s defense. Rather, the State admitted that it could not locate Takyi’s case, citing budget cuts and limited staffing. However, “unreasonable delay in run of the mill criminal cases cannot be justified by simply asserting that the public resources provided by the State’s criminal justice system are limited and that each case must await its turn.” Hayes v. State, 298 Ga. App. 338, 345 (2) (680 SE2d 182) (2009) (citation and punctuation omitted). Where the State gives no reason for the delay, other than its own negligence, this factor is weighed lightly against the State. See Sweatman v. State, 287 Ga. 872, 875 (700 SE2d 579) (2010); Ruffin, 284 Ga. at 61.

Moreover, the trial court properly attributed to the State the additional 28-month delay between its original grant of Takyi’s motion to dismiss and its second grant of the same. See Richardson, 318 Ga. App. at 160. The defendant is not charged with the delay resulting from the State’s appeal. “[I]n determining whether the government or the defendant is more to blame for the pretrial delay, the government includes all state actors, even trial and appellate court judges.” Goddard, 315 Ga. App. at 874 (citation and punctuation omitted). This additional delay then must also be weighed against the State.

Consequently, when weighing any short delay resulting from Takyi’s demand for a jury trial with the longer delay attributed to the State, the trial court properly exercised its discretion in weighing the reason for the delay against the State.

(c) Whether the defendant asserted her right to a speedy trial in due course.

Although the State has the burden to ensure that accused individuals are brought to trial promptly, “the accused bears some responsibility to invoke the speedy trial right and put the government on notice that he or she... would prefer to be tried as soon as possible.” Ruffin, 284 Ga. at 62. Delay in invoking this right will be weighed against the defendant. “That said, the accused is not required to demand a speedy trial at the first available opportunity, only to demand it in due course.” Buckner, 292 Ga. at 396-397 (citations and punctuation omitted); see also Doggett, 505 U. S. at 651.

In our earlier opinion, we held that the trial court’s finding as to Takyi’s assertion of her right appeared to be based in part on an error of law as to whether she could assert her constitutional speedy trial demand in municipal court and on improper hearsay from conversations Takyi had with people in municipal court and in the Solicitor-General’s office. Takyi, 314 Ga. App. at 447.

Following our roadmap, on remand the trial court properly recognized that Takyi could have asserted her right to a speedy trial in municipal court. See State v. Lessing, 302 Ga. App. 196 (690 SE2d 501) (2010). She did not do so. Nonetheless, the trial court found that she asserted her right “in due course.” In making this finding, the court expressly disregarded consideration of any hearsay and relied upon uncontradicted testimony that Takyi and her attorneys diligently sought a speedy resolution to her case during the 18 months prior to her accusation, and the short period of time between when Takyi was formally accused on February 4, 2010 and when she made a formal speedy trial demand on February 22, 2010.

Although the State challenges the adequacy of the nonhearsay evidence to support this finding, we previously held that there was significant evidence that Takyi attempted to obtain a speedy trial and this remains the law of the case. Takyi, 314 Ga. App. at 447. See OCGA § 9-11-60 (d); Sheppard v. State, 300 Ga. App. 261, 263 (684 SE2d 397) (2009). Consequently, the trial court properly exercised its discretion in weighing this factor against the State.

(d) Prejudice to the defendant.

In evaluating the final Barker-Doggett factor, courts must consider three types of prejudice associated with an unreasonable pretrial delay: oppressive pretrial incarceration, anxiety and concern of the accused, and the possibility that the accused’s defense will be impaired. Porter, 288 Ga. at 529; see Barker, 407 U. S. at 532. Notably, “the presumption of prejudice addressed in Barker strengthens with the passage of time and, as the delay increases, less specific harm need be demonstrated to conclude that the delay is prejudicial.” State v. Redding, 274 Ga. 831, 833 (561 SE2d 79) (2002); Goddard, 315 Ga. App. at 876.

Regarding anxiety and concern, the trial court found that Takyi suffered unusual and extreme anxiety and emotional pain due to her uncertain immigration status, such that she was “frightened that at any time her unresolved immigration status could force her to leave the U.S.” The trial court heard testimony from Takyi and her attorneys about the actions they took regarding her pending citizenship application and the emotional impact the attorneys understood the situation to have on Takyi.

We held in the first appeal that the trial court erred in making its finding of prejudice to the defendant by considering impermissible hearsay. Takyi, 314 Ga. App. at 448 (1). On remand, the trial court, explicitly disregarding hearsay and relying exclusively on the uncontradicted testimony of Takyi and her attorneys, found that Takyi suffered an unusual amount of stress and anxiety due to the delayed resolution of her case. Because it ignored the hearsay identified in the prior appeal to reach its decision, the trial court properly exercised its discretion in weighing the final factor slightly in Takyi’s favor.

Decided July 12, 2013.

Carmen D. Smith, Solicitor-General, R. Leon Benham, Assistant Solicitor-General, for appellant.

Rebecca T. Kozycki, for appellee.

“A trial court exercises a substantial discretion in applying the Barker balancing test, and its ultimate judgment is reviewed on appeal only for abuse of that discretion.” Porter, 288 Ga. at 533 (2) (e) (citation omitted); see also Sweatman v. State, 287 Ga. 872, 874-875 (700 SE2d 579) (2010). Weighing all the Barker factors, the trial court acted within its discretion in granting Takyi’s motion to dismiss.

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.