text:
    A11A0031.
    SEGARS et al. v. STATE OF GEORGIA.
    (710 SE2d 916)
   SMITH, Presiding Judge.

In this child custody dispute, Donna Segars and Richard Segars (“the Segars”) appeal from the order of the Morgan County Superior Court granting summary judgment in favor of the Georgia Department of Human Services, acting by and through the Morgan County Department of Family and Children Services (“DFACS”). Because the trial court correctly determined that the issue of custody had already been decided in the juvenile court and thus could not be re-litigated in superior court, we affirm.

The Segars are the paternal grandparents of A. S., the minor child whose custody is at issue here. On July 20, 2009, the Segars filed a petition for temporary letters of guardianship in the Probate Court of Baldwin County, where they reside. On July 22, 2009, by order of the Juvenile Court of Morgan County, two-month-old A. S. was taken from the hospital, where she was born prematurely, and placed into shelter care. At the 72-hour hearing, on July 27, 2009, the Segars were present and represented by counsel. The juvenile court entered an order consented to by the parents, finding that A. S. was deprived due to their history of drug use and domestic violence and awarding temporary custody to DFACS.

On July 31, 2009, the Segars filed a motion to intervene in the deprivation proceedings before the juvenile court. That motion was denied on August 19, nunc pro tunc August 11, 2009. The record contains no appeal of that order, and it appears that the Segars did not seek to appeal the denial of their motion to intervene.

On December 11, 2009, DFACS filed a separate action in the juvenile court to terminate the parental rights of the mother and father of A. S. The Segars were aware of the termination action at the latest by January 19, 2010, when they filed this action and alleged that the termination action was pending. They did not, however, move to intervene in the termination action. When the superior court asked counsel why they failed to do so, she responded, “To be honest, Your Honor, I think they believed that if they attempted to intervene again, they would not be allowed to one more time.”

Instead, on January 19, 2010, the Segars filed a “Complaint for Custody” in the Superior Court of Morgan County, beginning the action which forms the subject of this appeal. In that complaint, they noted that A. S. had been taken into shelter care, that the child was found to be deprived, that they filed a motion to intervene which was denied, that a final order of temporary custody was entered, and that DFACS had filed a petition for termination of parental rights. The Segars sought temporary and permanent custody of A. S., and prayed that the juvenile court action be stayed until their superior court action could be heard.

Eight days later, on January 27, 2010, the juvenile court held a hearing in the termination proceeding, taking evidence and hearing testimony from witnesses, including Dr. Priscilla Faulkner, a licensed psychologist. After finding extensive substance abuse, severe domestic violence, incarceration, probation violations, and mental deficiencies on the part of both parents, the juvenile court terminated their parental rights on February 5, 2010, nunc pro tunc January 27, 2010. As part of that order, the juvenile court held:

The Court finds that the Department conducted a thorough and exhaustive search for relatives in this matter. The Court specifically finds that the paternal grandparents, Richard and Donna Segars, are not suitable relative placements for this child because, based on the testimony by Dr. Faulkner and the evidence adduced at the termination hearing, the paternal grandparents will not be able to protect this child from the father because there is a long history of the paternal grandparents minimizing the father’s antisocial behavior and enabling the father’s behavior.

Concluding that none of the relatives identified in DFACS’s search were suitable placements for the child under OCGA § 15-11-103, the juvenile court placed physical and legal custody with DFACS for purposes of adoption.

A month later, on February 25, 2010, the Segars moved for a permanent injunction in the superior court action, seeking an order prohibiting DFACS from placing A. S. for adoption until the custody action was heard on the merits. Thereafter, DFACS responded to the motion for injunction and moved for judgment on the pleadings. On May 4, 2010, the superior court held a hearing on the pending motions, and on May 28, 2010, it entered an order treating DFACS’s motion for judgment on the pleadings as a motion for summary judgment and granting summary judgment in favor of DFACS. This appeal followed.

The superior court correctly held that it could have had jurisdiction over an original petition for custody, but the juvenile court had already taken jurisdiction and decided the Segars’s contentions adversely to them. Therefore, nothing remained to be decided in the superior court.

It is true that both the superior and juvenile courts may have jurisdiction over custody cases in particular circumstances. In a divorce action, the superior court has jurisdiction to determine custody “until the final judgment in the case.” OCGA § 19-6-14. A “juvenile court shall have concurrent jurisdiction to hear and determine the issue of custody and support when the issue is transferred by proper order of the superior court.” OCGA § 15-11-28 (c) (1). In certain cases, as when a deprivation petition is in reality “a disguised custody matter,” the juvenile court has no jurisdiction. In re M. C. J., 271 Ga. 546, 548 (523 SE2d 6) (1999). But the juvenile court “shall have exclusive original jurisdiction over juvenile matters and shall be the sole court for initiating action . . . [concerning any child . . . [w]ho is alleged to be deprived,” OCGA § 15-11-28 (a) (1) (C), or “[ijnvolving any proceedings . . . [f]or the termination of the legal parent-child relationship . . . other than that in connection with adoption proceedings.” OCGA § 15-11-28 (a) (2) (C).

In determining the issue of competing jurisdictions, we have repeatedly applied the principle that “where common law courts have concurrent jurisdiction, the first court taking jurisdiction will retain it.” Lincoln v. State, 138 Ga. App. 234, 235 (2) (225 SE2d 708) (1976). See also State v. Henderson, 281 Ga. 623, 624 (1) (641 SE2d 515) (2007) (“Where courts have concurrent jurisdiction, the first court taking jurisdiction will retain it.”).

In our recent decision of Long v. Long, 303 Ga. App. 215 (692 SE2d 811) (2010), concurrent jurisdiction over custody clearly existed in the superior and juvenile courts because a divorce action was pending in superior court simultaneously with a deprivation action in juvenile court. But even in that case, once the juvenile court had exercised its jurisdiction over the issue of custody, we applied the principle that “whichever [court] first takes jurisdiction will retain it.” (Citation, punctuation and footnote omitted.) Id. at 218 (2). We held that, because “the juvenile court had already exercised its jurisdiction over the temporary custody of [appellant’s] children in light of the deprivation action,... we cannot conclude that the superior court had good reason to interfere.” Id. at 219 (2). Because the juvenile court had prior jurisdiction, we reversed the superior court’s injunction forbidding DFACS, the temporary custodian of appellant’s children, from allowing appellant custody or unsupervised visitation. Id.

Long controls the outcome in the case before us. Once the juvenile court took jurisdiction of the deprivation action and, later, the termination action, it took jurisdiction of the entire case of the minor child A. S., including the issues of disposition and custody under OCGA §§ 15-11-58 and 15-11-103. The superior court correctly found that it had no good reason to interfere with the valid jurisdiction of the juvenile court.

In their brief, the Segars raise four related enumerations of error, none of which have merit because they ignore the central issue of jurisdiction. First, they seize on language in the superior court’s order that notes that they “did not exhaust their remedies at law in the Juvenile Court of Morgan County.” From this, they argue that the trial court improperly applied the rule regarding the exhaustion of administrative remedies. In support of their argument, they cite to the dissent in Patterson v. Ellerbee, 268 Ga. App. 826 (603 SE2d 308) (2004). But the majority in that case, while not directly on point, is significant here because it reaffirms the principles allocating jurisdiction between the juvenile and superior courts.

In Patterson, after the juvenile court refused to appoint counsel for a parent in a deprivation proceeding, the parent filed a class action in superior court on behalf of all parents who had been denied counsel in deprivation proceedings. Id. at 827. The superior court dismissed, and we affirmed, holding that the superior court lacked subject matter jurisdiction because the parent had failed to exhaust her legal remedies before the juvenile court and thus was not entitled to invoke the equitable jurisdiction of the superior court. Id. at 827-828. Here, as in Patterson, the superior court lacked jurisdiction, but in this case because the juvenile court had already exercised its concurrent jurisdiction.

The Segars also contend that the superior court, having found that an original petition for custody is proper in that court, should have entertained their petition. They further contend that their petition was timely. But these contentions ignore the fact that the superior court lacked jurisdiction.

Decided June 2, 2011.

Jeffrey A. Miller, for appellants.

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Elizabeth M. Williamson, Assistant Attorney General, Prior, Daniel & Wiltshire, Lee R. Moss, for appel-lee.

The Segars incorrectly assert that they were without a remedy. As the superior court observed, however, they could have appealed the denial of their motion to intervene in the deprivation action, but failed to do so. Furthermore, they could have moved to intervene in the termination action, but failed to do so. See J. M. T., supra, 275 Ga. App. at 528 (holding juvenile court erred in denying motion to intervene in termination action by paternal relatives).

The superior court correctly determined that it could not hear a custody matter as to which the juvenile court had already taken jurisdiction and had exercised that jurisdiction by terminating parental rights and placing physical and legal custody of the child in DFACS. We therefore affirm.

Judgment affirmed.

Mikell and Dillard, JJ., concur.

       “A denial of intervention is appealable.” (Citation and footnote omitted.) In the Interest of J. M. T., 275 Ga. App. 526, 527 (621 SE2d 535) (2005) (reversing denial of aunt and uncle’s motion to intervene to seek custody in termination action).

       Intervention must be timely, and
      whether a motion to intervene is timely is a decision entrusted to the sound discretion of the trial court. But where intervention appears before final judgment, where the rights of the intervening parties have not been protected, and where the denial of intervention would dispose of the intervening parties’ cause of action, intervention should be allowed and the failure to do so amounts to an abuse of discretion.
      (Citations and punctuation omitted.) Payne v. Dundee Mills, 235 Ga. App. 514, 515 (1) (510 SE2d 67) (1998).

       The transcript and exhibits from the termination hearing in the juvenile court are not included in the record before us. We note that in the absence of a transcript, and in accordance with the presumption of regularity of proceedings, we cannot address the Segars’ complaints regarding alleged irregularities or errors in the termination action and must conclude that the juvenile court discharged its duties properly. Westmoreland v. State, 287 Ga. 688, 696-697 (10) (699 SE2d 13) (2010). “This court will not presume the trial court committed error where that fact does not affirmatively appear.” (Citations and punctuation omitted.) Green v. SunTrust Banks, 197 Ga. App. 804, 807 (3) (b) (399 SE2d 712) (1990).

       Compare such cases as In the Interest of C. C., 193 Ga. App. 120, 121 (387 SE2d 46) (1989), in which a deprivation action in juvenile court had concluded with an award of temporary custody to the grandparents. We held that the legal custodians’ petition seeking a modification of that custody must be brought in superior court. Id. In contrast, here the termination petition was pending at the time the Segars filed their complaint in superior court.


source: Caselaw Access Project

author: SMITH, Presiding Judge.

license: Public Domain

text:
    A11A0076.
    THOMAS v. THE STATE.
    (710 SE2d 920)
   SMITH, Presiding Judge.

Chiquita Monique Thomas appeals from her convictions for voluntary manslaughter and aggravated assault and contends in her sole enumeration of error that insufficient evidence supports her voluntary manslaughter conviction. For the reasons set forth below, we affirm.

Viewed in the light most favorable to the verdict, the record shows that Thomas and the victim had been dating for approximately eight months at the time of his death. The victim was 5'7" tall and weighed 381 pounds. The State introduced evidence of the following prior difficulties between Thomas and the victim: Thomas bit the victim on the chest three or four months before his death leaving a scar that was visible after his death; Thomas hit and slapped the victim and threatened to kill him during the time they dated; Thomas stabbed the victim in the hand and chest with a fork during an argument while they were dating; and Thomas broke the windshield of the victim’s car with a beer bottle during an argument. Witnesses presented by the State testified that they never saw the victim hit or threaten Thomas during these incidents. Thomas’s mother and grandmother, on the other hand, testified that they witnessed the victim hitting, grabbing, and choking Thomas during previous arguments.

The medical examiner testified that the victim bled to death after being stabbed in the right side of the neck to a depth of four inches with a blow that penetrated his right lung and severed two major blood vessels on the way down. The victim also had a superficial defensive wound on the outside of his right upper arm midway between the shoulder and the elbow that came from a separate blow.

In her initial interview with police, Thomas claimed in a written statement that she stabbed the victim as a result of the following events:

Chiquit went to the bathroom took a Bath put on my red bra & panty set and watched tv and [the victim] come and ask me why am I holding the cell phone he said oh some[one] must going to call you and then I put the celluar [sic] phone back in the other room and then got in the bed and [the victim] said give me my keys I said No because I want you to stay a little longer then later on I gave him his keys then he left and I locked the door and got back in the bed and laid down I heard his car pull up and I heard the door knob move and I ran and got a knife and stood by the stove and I said I thought you were going home so walk to the door he graped [sic] my arm and started pulling me out the door and then he graped [sic] the side of my neck and I was holding on to the side of back door and then he pulling me down the step and then I got a lose [sic] and ran in the front door and got the knife of [sic] the floor the he pushed me to the chair I swung the knife he said monique sabed [sic] me he got the knife and went to the bathroom and took of [sic] his shirt. I ran in the living room and waited until he went out the door I went out the back door look at his car and then the door and saw the keys and I put my jeans and purple sweat shirt on and when out the front door and ran to his [sic] he was on the ground I had another knife because I didn’t know what he had done with the other one I throw the knife in the bushes and put my sweat shirt on his neck when I sat him up. So I ran to my aunt helen house and told her to call for help.

At trial, Thomas elaborated upon her written statement and explained that earlier in the evening, she took the victim’s keys and refused to give them to him because she was afraid to be alone and did not want him to leave.

She claimed that during the subsequent altercation after the victim returned, he accused her of cheating on him and told her, “I’m going to stop this today.” He also grabbed her by the neck and “pushed me down by my . . . neck to the floor.” She testified that he was then “on my back holding me down” with his body and his right arm was above her neck. She could not get him off and demonstrated to the jury with a ruler how she went back with the knife and hit him on the shoulder. She denied knowing that she stabbed him until he told her that he had been stabbed, denied trying to stab him, denied stabbing him more than once, and claimed that she was simply trying to get him off her.

During closing argument, the district attorney argued, “And you could see that the ruler was going no further, no matter how hard she tried. It was going no further than here (demonstrating). There was no way she could get her arm around and over and stab him in the neck laying in that position. That . . . was a physical impossibility.”

Photographs of Thomas’s neck and back taken by the police after the victim’s death do not show any injuries, and the investigating officer did not see any at the time he observed Thomas in jail.

On appeal, Thomas asserts that “[t]he evidence in this case did not eliminate the reasonable hypothesis that the appellant was acting in defense against the immensely larger attacker inside her home.” We disagree.

A person commits voluntary manslaughter when he causes another person’s death under circumstances which would otherwise be murder and acts solely as a result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person. OCGA § 16-5-2 (a). A person’s intent and whether she acted in the heat of passion with adequate provocation or with justification depend largely on the credibility of witnesses. This was for the jury to assess. See Brown v. State, 225 Ga. App. 218, 219 (483 SE2d 633) (1997).

Johnson v. State, 236 Ga. App. 61, 63 (1) (510 SE2d 918) (1999), disapproved on other grounds, Schofield v. Holsey, 281 Ga. 809, 811-812, n. 1 (642 SE2d 56) (2007). “A jury has unlimited discretion to accept or reject a defendant’s testimony as a whole, or to accept it in part and reject it in part. [Cit.]” Johnson, supra, 236 Ga. App. at 63 (1). As in Johnson, it was for the jury to determine how and why Thomas stabbed the victim and whether she did so in the heat of passion or with justification. Id. See also O’Connor v. State, 255 Ga. App. 893, 895 (1) (567 SE2d 29) (2002) (refusing “to reweigh evidence to place greater credence in [appellant’s] justification defense than did jury”).

Decided June 2, 2011.

William J. Mason, for appellant.

PlezH. Hardin, District Attorney, Cecilia Cooper, Daniel P. Bibler, Assistant District Attorneys, for appellee.

Judgment affirmed.

Mikell and Dillard, JJ., concur.

       The jury acquitted Thomas of malice murder.

       Although Thomas asserts in her enumeration of error that insufficient evidence supports her aggravated assault conviction, she makes no argument and cites no authority with regard to her aggravated assault conviction. We will therefore treat this portion of her enumeration as abandoned. Mathis v. State, 299 Ga. App. 831, 839 (2) (c), n. 29 (684 SE2d 6) (2009) (unsupported enumeration of error abandoned under Court of Appeals Rule 25 (c) (2)).


author: PHIPPS, Presiding Judge.

text:
    A11A0178.
    MORGAN v. THE STATE.
    (710 SE2d 922)
   PHIPPS, Presiding Judge.

Maurice Morgan appeals his convictions for possessing controlled substances with the intent to distribute and possessing a firearm during the commission of a crime. He contends that the trial court erred by denying his motion to suppress the drug and weapon evidence, confiscated during a search of the vehicle in which he had been traveling as a passenger. Morgan maintains that the search stemmed from an unconstitutional traffic stop and therefore the cited evidence constituted fruit of the poisonous tree. Because the record authorized the trial court’s conclusion that the traffic stop was supported by probable cause that the driver had committed the traffic offense of failure to use a turn signal, we affirm.

This appeal concerns whether the traffic stop was lawful at its inception. Evidence on that issue was presented solely through the law enforcement officer who initiated the traffic stop. He testified to the following. Shortly after noon on December 14, 2008, during his patrol of an area of a recent rash of residential burglaries, the officer, dressed in uniform and driving a marked patrol car, turned into a subdivision. His attention was soon drawn to a Hyundai sedan ahead, because it quickly backed out of a residential driveway. The Hyundai traveled toward the subdivision’s entrance/exit and thus passed the officer. There were three men occupying the Hyundai; Morgan was the front seat passenger. The officer perceived stares given him by the driver and the backseat passenger, and also noted that the Hyundai had an out-of-state tag. He decided to turn around to follow the car and run its tag.

As he was turning around his patrol car, the officer saw the Hyundai stop at the subdivision’s entrance/exit and then make a right turn out of the subdivision without any turn signal being given. Within about four seconds, the officer had “gunned the patrol car” to the subdivision’s entrance/exit. Looking to his right, he spotted the Hyundai in the middle of a line of vehicles stopped at a stop sign at the next intersection. The Hyundai continued its course of travel, until the officer caught up with it and activated his patrol car’s blue lights. The officer testified that he stopped the Hyundai because he suspected that the car’s occupants were involved in the neighborhood’s recent burglaries and because he believed that he had observed a traffic offense with respect to the Hyundai turning out of the subdivision without a signal being given.

The Hyundai stopped, and the officer walked to the driver’s window, which was open. The driver was spraying air freshener. Immediately, the officer detected a strong odor of raw marijuana. All three occupants were ordered out of the Hyundai and handcuffed. The ensuing search of the car yielded raw marijuana, other controlled substances, and firearms.

In this appeal, Morgan maintains that the stop of the Hyundai was unconstitutional, rendering inadmissible the drug and weapon evidence found as a result of the stop. The state, which had the burden to prove the lawfulness of the stop upon Morgan’s challenge, argued that the stop was valid on two independent grounds: (i) the officer had probable cause to believe that the driver of the Hyundai had violated a traffic code; and (ii) the officer had acted in good faith in concluding that a traffic offense had been committed. The trial court accepted both grounds and denied Morgan’s motion. Given our conclusion that the traffic stop was justified by probable cause, we do not reach the alternative ground asserted by the state.

The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a seizure of persons within the meaning of this provision. An automobile stop is thus subject to the constitutional imperative that it not be unreasonable under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.

The traffic code at issue in this appeal is OCGA § 40-6-123:

No person shall . . . turn a vehicle to enter a private road or driveway or otherwise turn a vehicle from a direct course . . . unless and until such movement can be made with reasonable safety. No person shall so turn any vehicle without giving an appropriate and timely signal. ... A signal of intention to turn right or left or change lanes when required shall be given continuously for a time sufficient to alert the driver of a vehicle proceeding from the rear in the same direction or a driver of a vehicle approaching from the opposite direction.

Pertinently, “[t]he statute’s language indicates that a turn signal is not required if changing lanes [or making a turn] without a signal is reasonably safe.” “Although failing to utilize a turn signal does not automatically provide a basis for stopping a motorist, an officer may pull over a motorist for failing to signal when traffic conditions require the use of such signal.”

Morgan maintains that the trial court erred in concluding that the officer had probable cause to believe that the driver of the Hyundai had violated that Code section. Asserting that the evidence failed to show any vehicle in proximity to the Hyundai about the time it turned out of the subdivision, Morgan points out that the officer testified that, when he saw the Hyundai stopped at the subdivision’s entrance/exit (just before the Hyundai turned out of the subdivision): (i) his patrol car was “maybe 250 — 250 yards, maybe 300 yards” behind the Hyundai; and (ii) he saw no vehicle travel in front of the Hyundai. Relying on Bowers v. State and Clark v. State, Morgan argues that no turn signal was required before the Hyundai turned out of the subdivision.

As decisions not concurred in by all panel members, Bowers and Clark do not constitute binding precedent. What is more, they are inapposite. In each case, the driver was not required to signal an intent to turn or change lanes because the evidence affirmatively and undisputedly showed that there was no other vehicle nearby. That is not the case here.

Although the officer’s observations at the moment the Hyundai was stopped at the subdivision’s entrance/exit (and just before the Hyundai turned out of the subdivision) are certainly relevant, the dispositive inquiry remains: whether the seizure itself (the traffic stop) was lawful, and that inquiry “depends in turn upon whether, at the moment the [seizure] was made, the officer[ ] had probable cause to make it.”

A warrantless [seizure] is constitutionally valid if at the time of the [seizure] the arresting officer has probable cause to believe the accused has committed or is committing an offense, and probable cause exists if the arresting officer has knowledge and reasonably trustworthy information about facts and circumstances sufficient for a prudent person to believe the accused has committed an offense.

The principal components of a determination of probable cause are “the events which occurred leading up to the stop or search, and then the decision whether these historical facts” amounted to probable cause. In this case, the officer testified about additional facts and circumstances from which he concluded that other vehicles were in close spatial and temporal proximity of the Hyundai stopped at the subdivision’s entrance/exit such that a turn signal was required.

The officer recounted that, when he reached the subdivision’s entrance/exit within about four seconds of the Hyundai’s right turn therefrom, he saw one or two cars stopped in front of the Hyundai and one or two cars already stopped behind it. The officer acknowledged that he had not seen from where those other vehicles had come. However, he testified, during those few seconds that he had been “gunning” his patrol car through the subdivision to catch up with the Hyundai, he kept a “clear view” of the subdivision’s entrance/exit and not a single vehicle passed in front of it.

In addition, the officer testified, there was only one ingress onto that stretch of road between the subdivision’s entrance/exit and the intersection at which the Hyundai and those other cars had stopped — a distance of “probably 80 yards — 90 yards.” Across the street from the subdivision’s entrance/exit was a driveway for an apartment complex. That driveway was offset from the subdivision’s entrance/exit by only ten to fifteen feet, thus creating essentially an “intersection.” Due to multiple signs posted at the subdivision’s entrance/exit, however, the officer’s view of that driveway had been obstructed during the time he was turning around his patrol car to follow the Hyundai and until he made his way back to the subdivision’s entrance/exit.

We agree with Morgan that the state failed to adduce direct evidence showing, at the moment the Hyundai was at the subdivision’s entrance/exit, the precise location of those vehicles that were later observed stopped either in front of or behind the Hyundai at the next intersection. Notwithstanding, “circumstantial evidence may give rise to probable cause as long as it is sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense.”

Furthermore, the quantum of evidence necessary to establish probable cause is much less than that level required to prove guilt beyond a reasonable doubt. ‘“[B]eyond a reasonable doubt’ is more than ‘clear and convincing evidence,’ which is more than ‘preponderance of the evidence,’ which, in turn, is more than mere ‘probable cause.’ ” “The test of probable cause requires merely a probability — less than a certainty but more than a mere suspicion or possibility.”

In denying Morgan’s motion to suppress, the trial court determined that the traffic stop was supported by the officer’s probable cause to believe that a turn signal violation had occurred. This determination rested upon the trial court’s express finding that a reasonable inference arose that vehicles stopped at the stop sign along with the Hyundai had exited the apartment complex driveway at a time such that the driver of the Hyundai was required to signal his intent to turn.

When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them]. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

An appellate court reviews the legal conclusions underpinning a denial of a motion to suppress de novo.

Construing the evidence most favorably to the trial court’s findings and judgment, we cannot conclude that the trial court’s factual findings were clearly erroneous; rather, the trial court was authorized to find that the evidence placed vehicles in close spatial and temporal proximity to the Hyundai when it made its turn such that the officer had probable cause to believe that the driver of the Hyundai had violated OCGA § 40-6-123 by turning without signaling. Bound by the applicable standard of review, we must reject Morgan’s challenge to the denial of his motion to suppress the drug and weapon evidence; consequently, Morgan has demonstrated no basis to overturn his convictions.

Decided June 2, 2011.

Mumford & Myers, Albert A. Myers III, for appellant.

Richard R. Read, District Attorney, Roberta A. Earnhardt, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

        See Brendlin v. California, 551 U. S. 249 (127 SC 2400, 168 LE2d 132) (2007) (because a traffic stop subjects a passenger, as well as the driver, to Fourth Amendment seizure, a passenger may move to exclude evidence seized during an unconstitutional stop).

       See OCGA § 17-5-30 (b) (pertinently providing that “the burden of proving that the search and seizure were lawful shall be on the state”); State v. Massa, 273 Ga. App. 596, 597 (615 SE2d 652) (2005) (state has burden to establish existence of circumstances constituting exception to general prohibition against warrantless searches and seizures), citing OCGA § 17-5-30 (b).

        Whren v. United States, 517 U. S. 806, 809-810 (II) (116 SC 1769, 135 LE2d 89) (1996) (citations and punctuation omitted).

       OCGA § 40-6-123 (a), (b).

        Huynh v. State, 239 Ga. App. 62, 63 (1) (518 SE2d 920) (1999).

        Barrow v. State, 269 Ga. App. 635, 637 (2) (605 SE2d 67) (2004) (footnotes omitted).

       After the officer gave this distance estimate, he was immediately asked, “[H]ow many football fields behind the [Hyundai] was it when you observed them take the turn?” The officer answered, “One, if not less than one. I wasn’t that far behind.” When the topic was revisited, the officer estimated the distance as “probably 80 yards — 90 yards.” This court is bound to construe the evidence most favorably to the upholding of the trial court’s findings and judgment. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

       221 Ga. App. 886 (473 SE2d 201) (1996) (physical precedent only).

       208 Ga. App. 896 (432 SE2d 220) (1993) (physical precedent only).

       See Jacobs v. State, 299 Ga. App. 368, 375 (2) (e), n. 6 (683 SE2d 64) (2009), citing Court of Appeals Rule 33 (a).

       See Bowers, supra at 888 (no basis for initiating a traffic stop for violation of OCGA § 40-6-123, where the nearest following car was approximately 100 yards away and there was no evidence to suggest that the road or traffic conditions were such that it was unsafe for the defendants to change lanes without using a turn signal); Clark, supra at 897-898 (1) (no basis for initiating a traffic stop for violation of OCGA § 40-6-123, where the officer’s car was approximately 300 feet behind the defendant’s vehicle, the defendant simply continued straight in his lane to exit, and it was undisputed that no other vehicles were in the vicinity of the defendant’s vehicle).

        Beck v. Ohio, 379 U. S. 89, 91 (85 SC 223, 13 LE2d 142) (1964) (emphasis supplied).

        Patterson v. State, 274 Ga. 713, 715-716 (2) (559 SE2d 472) (2002) (citation omitted); see Harvey v. State, 266 Ga. 671, 672-673 (469 SE2d 176) (1996) (probable cause determination concerns the facts and circumstances known to the arresting officer at the time the arrest was made).

        Ornelas v. United States, 517 U. S. 690, 696 (116 SC 1657, 134 LE2d 911) (1996); Murphy v. State, 286 Ga. App. 447, 449 (649 SE2d 565) (2007) (in determining whether probable cause existed, the totality of the circumstances must be considered).

        McKenzie v. State, 208 Ga. App. 683, 685 (1) (431 SE2d 715) (1993) (citation and punctuation omitted); see Murphy, supra (probable cause may be supported by circumstantial evidence).

       See Murphy, supra at 448.

        Monroe v. Sigler, 256 Ga. 759, 761 (6) (353 SE2d 23) (1987).

        Brown v. State, 269 Ga. 830, 831 (2) (504 SE2d 443) (1998) (citation and punctuation omitted).

       See Miller v. State, 288 Ga. 286, 287 (1) (702 SE2d 888) (2010) (instructing that a court reviewing ruling on motion to suppress must focus on facts found by the trial court in its order, because the trial court sits as the trier of fact).

        Tate, supra (citations, punctuation and emphasis omitted), reiterated in Miller, supra at 286-287 (1); see Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

        Vansant, supra; accord Ornelas, supra (as a general matter, determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal, while findings of historical fact are reviewed only for clear error).

       See Salinas-Valdez v. State, 276 Ga. App. 732-733 (1) (624 SE2d 278) (2005) (probable cause that OCGA § 40-6-123 was violated, where driver changed lanes without signaling and then drove in front of patrol car, while traffic was “medium heavy to heavy” with approximately 20 vehicles “nearby traveling the same direction,” and where officer opined that the lane change was unsafe); Johnson v. State, 249 Ga. App. 29, 30 (1) (546 SE2d 922) (2001) (probable cause that OCGA § 40-6-123 was violated, where driver changed lanes three times without signaling and there were “three or four cars on the roadway”); McBride v. State, 246 Ga. App. 151-152 (539 SE2d 201) (2000) (probable cause that OCGA § 40-6-123 was violated, where driver turned at an intersection onto a roadway about 25 yards away from where officer was attempting to exit a parking lot and travel upon the same roadway; inter alia, vehicles were in “close proximity to each other”); Tukes v. State, 236 Ga. App. 77 (1) (511 SE2d 534) (1999) (probable cause that OCGA § 40-6-123 was violated, where there was evidence that the subject vehicle “drifted from — turned from the slow lane to the middle lane in traffic, vehicles coming up from the rear traveling to his left and then went back into the slow lane without signaling”); Daniels v. State, 222 Ga. App. 29, 31 (3) (473 SE2d 239) (1996) (traffic stop for failure to signal turn was lawful, considering the unrefuted testimony by an officer that the turn was “improper,” together with the deference to be given trial court’s ruling on suppression motion) (whole court).

       See Tate, supra; Vansant, supra. See generally Tennille v. State, 279 Ga. 884, 885 (2) (622 SE2d 346) (2005) (whether evidence was sufficient to rebut any inference that arose was a question for the trier of fact).

       See Whren, supra at 819.


text:
    A11A0494.
    CROSS v. THE STATE.
    (710 SE2d 928)
   SMITH, Presiding Judge.

Marcus Cross appeals from his convictions for two counts of burglary, asserting that insufficient evidence supports them and that the trial court erred by overruling his objection to an in-court identification. For the reasons set forth below, we affirm.

Viewed in the light most favorable to the verdict, the record shows that Samantha Garcia saw “three young African Americans . . . walking up into the cul-de-sac” when she went outside to check the mail. She noticed that they went up and down the street “casing back and forth,” and that when she saw them the third time, they had game controllers in their hands. The witness testified that they walked to what “looked like a purple Ford Expedition” and placed the game controllers in the back seat. One of them drove the vehicle to a neighbor’s house and backed into the driveway. After the other two men went through her backyard and broke into the back porch of her neighbor’s house, she called the police. When she went to the front of her home “to see what they were doing,” she saw them loading her neighbor’s flat screen television into the back seat of the SUV After it was loaded, “they took off” and turned left out of the cul-de-sac. In a written statement provided to police, Garcia listed a portion of the tag number as 772.

Garcia described the men at trial as follows:

The first one was about 5 foot, a short African-American. He had a white shirt on with black sweatpants and black Jordans. There were two other ones, a lighter African-American with dreadlocks, he had a white T-shirt on with black writing, black pants, and black shoes. And the third one was a darker African-American with dreads, a white shirt, blue jeans, and white shoes on.

She explained that “the darker African-American with the dreadlocks” was the driver of the SUV

The police officer who responded to the burglary in progress dispatch testified that he was asked to look for a purple SUV with a partial tag number. Two to four minutes after receiving the dispatch and less than one mile away from the location of the burglaries, he stopped a purple Toyota 4Runner with a tag that was similar to the partial tag number he had been provided. The SUV was driven by Christopher Byrd, the front seat was occupied by Prentice Kimble, and Cross was in the back seat sitting beside a large television.

During an inventory search of the SUy police located a plasma tv that belonged to one of the burglary victims who lived in the subdivision, as well as a jewelry box, jewelry, and a console and controllers for a PlayStation 2 belonging to other burglary victims who lived on the same street.

The State recalled Garcia after the police officer authenticated a videotape recording of his encounter with the occupants of the purple SUV When the State asked if Garcia recognized “this guy over to the right of the screen” during the playing of the videotape, Cross’s counsel objected to “this one-person show-up.” The trial court overruled the objection, and Garcia identified the person in the video as one of the men “who went in the back of the neighbor’s house and broke in and helped take the plasma tv out of the house and back in the car.” She also testified that this person was wearing the same t-shirt with black lettering that she saw during the burglary. Only after re-cross, in which defense counsel established that Garcia first had a good look at Cross when she came into the courtroom, did the State ask Garcia during re-direct to identify Cross as the man she saw during the burglary.

1. We find no merit in Cross’s assertion that discrepancies between Garcia’s description of the burglars’ stature and their actual heights render the State’s evidence insufficient to support his convictions.

The resolution of any inconsistencies in the evidence was for the jury as it resolves conflicts in the evidence, not this [c]ourt. The jury obviously resolved the inconsistencies and the resulting credibility issues, in favor of finding [defendant] guilty. We are not authorized to revisit such issues on appeal.

(Citation, punctuation and footnotes omitted.) Cosby v. State, 289 Ga. App. 36, 37-38 (656 SE2d 186) (2007). See also Holmes v. State, 269 Ga. 124, 125 (1) (498 SE2d 732) (1998).

2. Cross contends the trial court erred by overruling his “objection to a prejudicial in-court identification.” Specifically, he asserts the trial court erred by allowing Garcia to identify him at trial after having had an opportunity to see him sitting at the defense table during her earlier testimony. Even if we assume that this contention was not waived as asserted by the State, “the test for determining whether a due process violation occurred in cases such as this is whether the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” (Citation and punctuation omitted.) Isaacs v. State, 213 Ga. App. 379, 380 (2) (444 SE2d 409) (1994).

Based on our evaluation of the considerations outlined by the United States Supreme Court in Neil v. Biggers, 409 U. S. 188, 199-200 (II) (93 SC 375, 34 LE2d 401) (1972), we conclude that the procedure used in this case was not so impermissibly suggestive as to cause a very substantial likelihood of irreparable misidentification. The eyewitness focused on the three men before and after the burglary from the comfort of her own home and yard without stressful or distracting circumstances; she testified that she had a good look at them and their clothing; her description of the SUV used by the burglars matched the SUV stopped by the police less than a mile from the location of the burglaries; her description of the items stolen matched items found in the SUV; these items were later identified by the burglary victims as the ones that had been taken; and her description of the three men and their clothing generally matched the three men found in the SUy other than a discrepancy between her estimate of their heights and their actual heights. We therefore affirm the trial court’s evidentiary ruling with regard to the eyewitness’s in-court identification.

Decided June 2, 2011.

Mary Erickson, for appellant.

David McDade, District Attorney, James A. Dooley, Assistant District Attorney, for appellee.

Judgment affirmed.

Mikell and Dillard, JJ., concur.

       The court reporter recorded defense counsel’s objection immediately after the witness identified Cross in court for the first time.


author: Adams, Judge.

text:
    A11A0643.
    CLARK v. THE STATE.
    (711 SE2d 339)
   Adams, Judge.

Timothy Clark was tried and convicted of aggravated child molestation, child molestation, and cruelty to children on charges involving three children, ages twelve, ten and four at the time. Clark does not contest the sufficiency of the evidence as presented, which included his confession and testimony from the children, investigators who interviewed them, and family members, all of which was consistent with his confession. On appeal, he asserts that five reversible errors occurred at trial.

1. Clark first contends the trial court erred by attempting to rehabilitate several jurors who responded in the affirmative to the following question:

Now, you know, as Judge Smith has told you, what the charges are . . . and we’re going to talk about some delicate subject matter. You know why you’re here. How many of you just can’t do it? You can’t be fair one way or the other because of the subject matter that we’re talking about? Anybody?

One juror responded, “I don’t know if I could.” Clark’s counsel continued, “Fair enough. That’s what I’m saying, and if you’re not sure, raise your hand.” (Emphasis supplied.) Five prospective jurors responded in the affirmative, and Clark’s counsel moved to strike them for cause without asking any follow-up questions.

The court then spoke to the jurors at length about the difficulty of being fair given the subject matter; about how they were not being asked to say whether child molestation is bad or whether someone likes it; about the duty of a juror to sit in judgment of the State’s evidence and to determine whether it proves a person guilty beyond a reasonable doubt; about the duty to acquit if the evidence does not meet that standard; about the duty of citizens to protect each other from being wrongly accused; and, ultimately, about how the real issue is whether the person could “sit in this box as a citizen, as a juror, and listen to the evidence in this case and to determine whether or not the State can prove these charges beyond a reasonable doubt. That is your duty.” The court added that “you have to be able ... to put [your personal feelings] aside in light of the overriding duty to be fair and impartial and to listen to this evidence and to make a determination based upon the evidence presented in this courtroom.” The court then asked each of the five whether they could fulfill that duty, and each replied that they could. The court therefore declined to strike them for cause.

We review the court’s decision for abuse of discretion keeping in mind the broad general principle that “each juror shall be so free from either prejudice or bias as to guarantee the inviolability of an impartial trial.” Park v. State, 260 Ga. App. 879, 880-881 (1) (581 SE2d 393) (2003).

Given that the voir dire does not show that the jurors “formed an opinion on the guilt or innocence of appellant that was so fixed and definite that [they] would be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence,” Clark has not shown any abuse of discretion in the court’s rehabilitation or in the manner in which the voir dire was conducted. Ros v. State, 279 Ga. 604, 606 (4) (619 SE2d 644) (2005).

2. Clark contends the court erred by closing the courtroom during the testimony of the child victims. The Sixth Amendment and the Constitution of Georgia guarantee the right to a public trial:

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” The Sixth Amendment rights are applicable to the states. Kesler v. State, 249 Ga. 462, 471 fn. 5 (291 SE2d 497) (1982). The Constitution of Georgia also provides for a public trial for criminal defendants. Const, of Ga. 1983, Art. I, Sec. I, Par. XI (a).

Purvis v. State, 288 Ga. 865, 866 (708 SE2d 283) (2011). That right “ ‘may give way in certain cases to other rights or interests, such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information. (Cit.)’ (Punctuation omitted.) Presley v. Georgia, [558 U. S. _, _ (130 SC 721, 175 LE2d 675) (2010)].” Id. at 869 (1). In this State, because “there is a compelling state interest in protecting children while they are testifying concerning a sex offense,” Delgado v. State, 287 Ga. App. 273, 279 (651 SE2d 201) (2007), when a child under age 16 testifies concerning any sex offense, the court may clear the court “of all persons except parties to the cause and their immediate families or guardians, attorneys and their secretaries, officers of the court, jurors, newspaper reporters or broadcasters, and court reporters.” OCGA § 17-8-54.

Here, before the youngest sexual abuse victim testified, the State requested that the court clear the courtroom “of nonessential personnel for [the child’s] testimony.” The court then announced that persons “who are not associated with this case or who are not otherwise an officer of this court will need to step out of the courtroom . . the court also said, “if you are not an officer of the court or a bailiff, you will need to step out. ...” The record states that “the spectators exited the courtroom.” Clark’s counsel objected on the ground that “[Clark] is entitled to an open and public trial. I object to the Court closing the courtroom”; he later renewed the same objection. The court explained its ruling: “[T]he Court finds that public policy outweighs the previous concern weighed by you on the protection of the identity of the juvenile witness. ...” After the two sexual abuse victims testified, the court opened the courtroom.

Neither at trial nor on appeal, has Clark identified any specific people or category of people who he contends were wrongly excluded. Therefore, Clark has not shown that the trial court violated OCGA § 17-8-54 in any specific manner. And because “the partial closure permitted under [that] statute does not violate a defendant’s Sixth Amendment right to a public trial,” Delgado v. State, 287 Ga. App. at 279 (2), citing Hunt v. State, 268 Ga. App. 568, 571 (1) (602 SE2d 312) (2004), Clark has not shown that the trial court violated his constitutional rights.

3. Clark contends the court erred by admitting his in-custody statement. At a Jackson-Denno hearing, the trial court examines the totality of the circumstances to determine whether a preponderance of the evidence shows that the confession was voluntary. Bell v. State, 280 Ga. 562, 564 (629 SE2d 213) (2006). “Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal.” Id.

(a) Clark first contends the State violated the rule that “[a]n interrogating officer cannot induce a confession by offering hope of a lighter sentence.” Burdette v. State, 251 Ga. App. 30, 31 (1) (553 SE2d 340) (2001). See also Caffo v. State, 247 Ga. 751, 757 (279 SE2d 678) (1981). He argues that the officer’s testimony that she offered “help in the court proceedings” showed that she made improper promises of a benefit in exchange for Clark’s confession.

The hearing transcript shows that Clark, who was one day shy of his 18th birthday at the time of his arrest, was read Miranda warnings twice; he then signed a waiver of those rights. When asked if he knew why he was being questioned, Clark began speaking so quickly that the officer had to stop him in order to turn on the recording equipment. On tape, the officer again reviewed Clark’s rights and the waiver form.

It was Clark who first raised the topic of getting help. Right after the Miranda warnings and before the tape was turned on, he commented “that he needed help for what he had done.” Clark then told about burning the oldest child and about a sexual encounter with the ten-year-old. Clark initially denied anything improper with the four-year-old, even after questioning. The officer said, “there is a problem ... [if] you think that is normal behavior[;] obviously due to the fact that is not normal behavior you obviously need some sort of help. ...” Later, Clark asked “Any way I can get help[?]” The officer replied,

Yeah I am sure there is, Timothy I am sure there is. Like I said you are going to need a lot of help, but there is no denying, you are going to need help. But the best thing to do right now . . . have you told me the truth about everything?

(Punctuation supplied.)

Eventually, when Clark appeared to have nothing more to say, the tape was turned off; it was at that point that Clark began to sob at length. The officers let Clark sit there and sob, and eventually Clark again said that he wanted help. He then began to tell what happened with the youngest child. Again, the officer had to stop him while she turned on the recorder. Also, at one point the officer testified, “Now, he had advised me before that he wanted help and I had told him while the tape was on that the only way to get help is you have to tell the truth, you have to admit what you’ve done wrong. ...”

During the Jackson-Denno hearing, when asked “now, when we’re talking about help, what kind of help are we talking about?”, the officer replied:

Well, apparently any kind of help that he would be able to get in, you know, in the court system, whether it be some kind of counseling. I mean, I don’t know. There was nothing in my mind. I couldn’t help him, of course. . . . Just help for his problem basically ... he had mentioned he had urges and these are things he needed help with.

On cross-examination, when again asked about the nature of the help being discussed, the officer said, “Well, it was obvious it was help in the court proceedings.” And that to get that help, Clark needed to tell the truth about what he needed help with. On further cross, the officer clarified, “[m]ental health is what he meant through the court system.” And she also denied that the help meant incentives or leniency in sentencing. The officer also testified that she did not threaten Clark, make promises to him, or comment about any kind of lesser sentence.

“The promise of a [hope or] benefit that will render a confession involuntary under OCGA § 24-3-50 must relate to the charge or sentence facing the suspect.” White v. State, 266 Ga. 134 (3) (465 SE2d 277) (1996). Here, the evidence presented at the Jackson-Denno hearing was certainly sufficient for the trial court to have concluded by a preponderance of the evidence that the officer did not make a promise or offer of a special benefit or a lighter sentence in exchange for his testimony, but rather only an offer for help addressing his psychological issues. Compare Askea v. State, 153 Ga. App. 849, 851 (3) (267 SE2d 279) (1980) (“interrogating officer’s remark that ‘it (i.e., telling the truth) would probably help him in court’ holds out at least some hope for reward by special consideration if the suspect cooperates”). Furthermore, like the defendant in Leigh v. State, 223 Ga. App. 726, 728 (478 SE2d 905) (1996), Clark “signed a form which acknowledged that he had not been promised anything. ... In light of the above, the trial court’s denial of [Clark’s] motion to suppress the statement was not clearly erroneous.”

(b) Clark next contends the court erred by admitting the portion of the confession related to aggravated child molestation because, before the questioning began, the officer only told him that she was investigating child molestation. The Miranda waiver form refers to cruelty to children in the first degree, child molestation, and contributing to the delinquency of a minor. Clark argues that he was therefore tricked into confessing to aggravated child molestation, which carries a 25-year, mandatory minimum sentence. Clark’s argument is without merit. See Bazansilva v. State, 251 Ga. App. 608, 610 (554 SE2d 794) (2001) (confession admissible even though officer did not inform suspect of charges against him so long as juvenile suspect had knowledge of the “substance of the charge”).

(c) Clark also contends that he invoked his right to remain silent. But the record shows otherwise. “If the [person in custody] indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Miranda v. Arizona, 384 U. S. 436, 473-474 (86 SC 1602, 16 LE2d 694) (1966).

The relevant portion of the interview went as follows:

Q: You realize that [the relationship with the youngest child] is over[?]
A: What with [the child]? Why? I didn’t do anything to him.
Q: Well he don’t see it that way.
A: Oh God.
Q: And ain’t no one else going to see it that way[,] you have anything else to add to the interview, anything else to help yourself.
A: No.
Q: Well if you do[,] speak[,] if not I am going to conclude the interview.
A: Any way I can get help[?]

In this dialogue, we fail to see how Clark’s statement that he did not have anything else to add to the interview constitutes an indication that he wishes to remain silent or that he was attempting to cut off questioning. At most, it was ambiguous, which is not enough. See Davis v. United States, 512 U. S. 452, 461-462 (II) (114 SC 2350, 129 LE2d 362) (1994) (“If the suspect’s statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.”). See also Perez v. State, 283 Ga. 196, 199 (657 SE2d 846) (2008) (“ ‘We see no reason to apply a different rule to equivocal invocations of the right to cut off questioning.’ [Cit.]”). Rather, it would appear that Clark simply indicated that he had nothing else to add on the topic of the youngest child victim. The officer then indicated that he might conclude the interview, and Clark asked another question which continued the interview.

4. Clark contends the trial court improperly restricted the scope of cross-examination of the investigating officer. Clark’s counsel wanted to ask the officer about why she failed to tell Clark before the interrogation began about the allegation of aggravated child molestation, which has a mandatory minimum sentence. Clark’s counsel explained to the court that he wanted to show that the officer intentionally omitted mention of aggravated child molestation in order to attempt to get Clark to confess to a crime that had a 25-year, mandatory minimum sentence. He claimed that it was misleading to tell Clark only that he was being investigated for the other lesser crimes, and that therefore, he did not know what rights he was waiving and his confession was not voluntary.

But counsel admitted the officer did not have a duty to go over the potential punishments prior to questioning Clark. And counsel did not show that Clark would have known that aggravated child molestation carried a mandatory minimum sentence. The court added that, accordingly, had the officer mentioned she was investigating aggravated child molestation, Clark could not show he would have chosen not to speak. The court did allow Clark to argue to the jury that the higher charge was not included on the Miranda waiver form. But the court would not allow the jury to hear about the mandatory minimum sentencing because evidence of punishment is not proper for the jury. Accordingly, the trial court disallowed this line of questioning.

We find no error. Possible punishment evidence is not admissible because it may “divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury’s verdict.” (Citations and punctuation omitted.) Rivers v. State, 265 Ga. 694, 697 (6) (461 SE2d 205) (1995).

5. Finally, Clark contends the trial court erred by refusing to admit defense exhibit 3 in unredacted form. The exhibit was a report prepared by an officer who had been assigned to the case but who was subsequently killed in Iraq during military service; consequently the exhibit was admitted under the necessity exception. Upon an objection by the State, the court required that one paragraph of the report be redacted. The paragraph in question stated the following:

This family had made four allegations of child molestation all with different offenders in the past four years. The subject children have been examined several times without any evidence of sexual abuse (see attachments).

The trial court determined that this portion of the officer’s report was double hearsay.

Documents are admissible under the necessity exception if two requirements are met: “the unavailability of the declarant and a circumstantial guaranty of trustworthiness.” Herrera v. State, 288 Ga. 231, 235 (5) (702 SE2d 854) (2010). “In determining whether an out-of-court statement bears sufficient indicia of trustworthiness, we look at the totality of the circumstances. [Cit.] Whether a statement is trustworthy is a matter for the trial court’s discretion. [Cit.]” Id.

Decided June 2, 2011.

Scott J. Forster, for appellant.

T. Joseph Campbell, District Attorney, Elizabeth M. York, Assistant District Attorney, for appellee.

Here, we cannot say the trial court abused its discretion in determining the statement was not admissible. The statement was made by the deceased officer and it was based on statements made by “the family” and whoever performed the sexual abuse examinations. Thus, it was double hearsay, which, in general, is inadmissible. See Harper v. State, 152 Ga. App. 689, 690 (1) (263 SE2d 547) (1979). Moreover, the redacted material shows that there were “attachments” that might shed further light on the trustworthiness of the statement about the examinations. But those documents were not tendered and are therefore not available to show any possible trustworthiness. And no other evidence was presented to show that these statements had a sufficient indicia of trustworthiness.

Judgment affirmed.

Barnes, P. J., and Blackwell, J., concur.

       The transcript states that Clark responded “Hugh Ugh”; after listening to the recording of the statement, the trial judge determined that Clark said “no.”


author: BARNES, Presiding Judge.

text:
    A11A0676.
    LOPEZ v. THE STATE.
    (711 SE2d 345)
   BARNES, Presiding Judge.

Silverio Lopez appeals the trial court’s denial of his motion to withdraw his guilty plea, contending his trial counsel was ineffective in advising him regarding the effect of the plea on his immigration status. For the reasons that follow, we affirm.

In August 2010, Lopez entered into a negotiated guilty plea to driving under the influence, endangering a child by driving under the influence, driving without a license, giving a false name, and felony cruelty to children. He was sentenced to ten years, the first one to be served in confinement. During the plea hearing, trial counsel noted that Lopez had recently pled guilty and been sentenced for two previous DUI charges, and asked that he be required to undergo only one series of evaluation and risk reduction classes. Counsel also noted that Lopez had an “immigration hold on him,” and that once this case was adjudicated “he would be subject to being deported and returned back to Mexico.” The State presented the factual basis for the plea, which was that officers saw Lopez run two stop signs, drive 60 mph in a 40-mph zone, make an erratic turn, and stop in a parking lot. When the officers approached the car, they found Lopez’s eight-month-old daughter face-down on the front passenger-side floorboard, screaming and apparently in pain. The tag on Lopez’s truck was registered to another vehicle, he had no drivers’ license, and he told the officers his name was Juan Carlos Cruz. Lopez had a strong odor of alcohol on his breath and admitted he had drunk 12 beers. A subsequent breath test revealed a blood-alcohol level of 0.182.

In response to the State’s questioning during the plea hearing, Lopez admitted he was in fact guilty of the charged offenses, that he was a citizen of Mexico, and that he knew that if he pled guilty he would likely be deported from this country. When the trial court asked if he had anything to say, he responded, “Just that you please forgive me for what I did.” The trial court found a factual basis for the guilty plea and that it had been freely, voluntarily, knowingly, and intelligently tendered, and accepted the plea and sentence recommendation of ten years to serve one in custody. The court noted that if Lopez was released from custody and not deported, he had to report to his probation officer and follow all the rules and conditions of his probation.

The next month, within the same term of court, Lopez moved to withdraw his plea, arguing that it was involuntary because he entered it in reliance on incorrect advice from his trial counsel, who allegedly told him that if he pled guilty he would be deported immediately without serving any more time in jail.

During the hearing on his motion to withdraw the plea, Lopez’s trial counsel testified that Lopez had admitted he was in the United States illegally. Lopez had a federal government immigration offense pending against him as well as these Gwinnett County charges, and was “under an INS hold.” Therefore, trial counsel testified, he knew Lopez would be deported eventually if he were convicted of a crime in Gwinnett, whether a felony or a misdemeanor, but denied telling him he would be deported immediately if he pled guilty to the charges against him. Rather, trial counsel testified, he told Lopez more than once, “I have no idea as to how long of any sentence you may serve before INS receives you. That is up to the Immigration [and] Naturalization Service. ...”

Lopez testified that he first learned the specifics of the plea deal from the trial court, because beforehand his trial counsel simply told him to “go with guilty,” and [counsel] had everything arranged.” He said he was told immigration would pick him up about 15 days after he pled guilty. Lopez said he thought he would be sentenced to time served and then allowed to leave. He said he did not understand he would have to serve a prison sentence, and that if he had known, he would not have pled guilty. When asked what he would have done other than plead guilty, Lopez said he would have waited longer and given his attorney time to explain things to him. On cross-examination, Lopez admitted that the prosecutor informed him at the plea hearing that entering a guilty plea would affect his immigration status, and that he knew an immigration hold had been placed on him.

The trial court found that Lopez was not a credible witness. For one thing, Lopez testified at the motion hearing that his real name was Cinforiano Ramirez, and that he had told the court at the plea hearing that his “real, .true, correct name” was Cinforiano Ramirez, but at the plea hearing he said his real name was Silverio Lopez. The trial court did not believe that Lopez’s trial counsel told him he would be deported within 15 days of entering his plea, noting that it would be reckless for a lawyer to tell his client when the federal government would deport him, because immigration officials changed their policy on a month-to-month basis; the court said that people were deported sometimes pre-trial, sometimes post-trial, sometimes within a week, sometimes years after they go into the State prison system, and sometimes never and they just get out of jail. The trial court denied the motion to withdraw the plea, finding that Lopez had been adequately informed of the possible deportation consequences of entering a guilty plea, and that his plea had been “entered freely and voluntarily with an intelligent understanding of the rights he was waiving.”

1. The decision regarding whether a guilty plea may be withdrawn lies within the sound discretion of the trial court. Franklin v. State, 291 Ga. App. 267, 268 (661 SE2d 870) (2008). When the request to withdraw a plea is based on ineffective assistance of counsel, the defendant must show both that trial counsel’s performance fell below an objective standard of reasonableness, and that a reasonable probability exists that, but for counsel’s errors, he would not have pled guilty but insisted on going to trial. Tarwater v. State, 259 Ga. 516, 517-518 (383 SE2d 883) (1989). The trial court is authorized to determine the credibility of witnesses at the hearing on the motion to withdraw, and the court’s factual findings will be upheld unless they are clearly erroneous. Johnson v. State, 260 Ga. App. 897, 900 (2) (581 SE2d 407) (2003).

On appeal, Lopez argues that his trial counsel was per se ineffective in failing “to specifically investigate the immigration consequences” of Lopez’s plea to a felony. He also contends that “evidence stands uncontradicted in the record” that had he known he would have to serve a year in jail, “he would never have entered the plea.”

Lopez does not dispute that he was told that a guilty plea would subject him to deportation. In addition to claiming his attorney told him incorrectly that he would be deported immediately after he entered his plea, he argues that his attorney’s failure to investigate and determine the specific consequences of the plea was per se ineffective. In Padilla v. Kentucky, _ U. S. _ (130 SC 1473, 176 LE2d 284) (2010), the Supreme Court held that an attorney who failed to advise his client that he faced automatic deportation if he entered a plea of guilty to drug distribution was not constitutionally competent. Id. at 1482. In that case, the court held that trial counsel’s failure to properly advise his client, a legal resident of the United States for 40 years, was objectively unreasonable, and remanded the case for consideration of the prejudice component of Padilla’s ineffective assistance claim. Id. at 1487.

Unlike the situation in Padilla, in this case, trial counsel correctly advised Lopez that once he entered his guilty plea, he was subject to being deported to Mexico, as did the State and the trial court during the plea hearing. During the motion hearing, trial counsel testified that he had made it clear to Lopez that counsel did not know when ICE would take physical possession of him and denied telling him that Gwinnett County’s participation in a special program with ICE would hasten his deportation. When Lopez’s new counsel asked trial counsel if he had tried to determine the specific immigration consequences to Lopez of this guilty plea, trial counsel responded that he had not, because he had not been retained to do so, and Lopez argues that this failure to investigate constituted per se ineffective assistance. We do not agree.

As the United States Supreme Court noted in Padilla,

[i]mmigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward, ... a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.

Id. at 1483.

This is not a case in which a defendant pled guilty without knowing he would be deported as a result. It was clear during the plea hearing that Lopez, his attorney, the State, and the trial court expected that he would be deported sooner or later. Lopez had admitted being here illegally, ICE already had a hold on him, and in addition to the felony child endangerment plea, Lopez was entering his third DUI plea within the past year. Lopez contends his counsel was ineffective for telling him he would be deported before he served his sentence, but the trial court determined that Lopez’s testimony in that regard was not credible. Further, the trial court noted during the motion hearing that the court had handled hundreds of similar cases and had “absolutely no idea when or if Immigration Customs will take custody of somebody.”

Trial counsel’s advice to Lopez did not constitute ineffective assistance of counsel, per se or otherwise. Thus, we find no error in the trial court’s denied .of Lopez’s motion to withdraw his plea.

2. In his second enumeration of error, Lopez challenges the trial court’s credibility findings. While Lopez testified that his trial counsel advised him to plead guilty because he would be deported before serving any time in jail, his trial counsel denied giving that advice, and the trial court believed the lawyer over the client.

As the final arbiter of the facts, the trial court was authorized to reject [Lopez’s] self-serving testimony during the hearing on the motion to withdraw the plea and find that he entered it knowingly and voluntarily. Accordingly, the trial court did not abuse its discretion in denying the motion to withdraw the plea.

Young v. State, 267 Ga. App. 91, 92 (598 SE2d 840) (2004).

Lopez’s assertion that trial counsel’s “demeanor and combativeness” during the motion hearing raise questions about his veracity are baseless and unsupported by the record. Lopez also contended that his trial counsel’s veracity was suspect because of counsel’s “motive to support his hourly indigent defense billing practices” and for other reasons.

The .. . rules of this court strictly prohibits remarks discourteous to opposing counsel, and [are] applicable no less to written arguments than to oral. The brief of the defendant in error contains references not entirely courteous to opposing counsel, and such expressions should not be found in a brief.

Stewart v. Hasty, 77 Ga. App. 524, 529 (2) (48 SE2d 757) (1948) (decided under Rule 5 of the 1934 Rules); see also Court of Appeals Rule 10.

Decided June 2, 2011.

Corso, Kennedy & Campbell, Arturo Corso, for appellant.

Daniel J. Porter, District Attorney, Wesley C. Ross, Assistant District Attorney, for appellee.

The trial court’s credibility findings were not clearly erroneous, and the denial of the motion to withdraw is affirmed. Johnson, 260 Ga. App. at 900.

3. Lopez’s final argument is that the trial court improperly discounted Lopez’s credibility because it seized on a “tortured. . . interpretation” of an “inartful translation” of Lopez’s testimony to conclude that Lopez was not credible. Lopez testified during the motion hearing that he first learned the details of the negotiated plea when the trial court reviewed them in open court, but the trial court noted that the State had discussed the details earlier during the plea hearing. Lopez argues that a fair reading of his testimony is that he meant he first heard the plea details during the court hearing rather than from his lawyer beforehand, and therefore the trial court’s credibility finding was clearly erroneous. The trial court had numerous other reasons for finding Lopez’s testimony incredible, however, and considering the hearing as a whole, the trial court’s credibility finding was not clearly erroneous.

Judgment affirmed.

Adams and Blackwell, JJ., concur.

       The criminal investigation resources of the federal agency formerly known as the Immigration and Naturalization Service (INS) are now part of the agency known as U. S. Immigration and Customs Enforcement (ICE), organized under the Department of Homeland Security.

       “Personal remarks, whether oral or written, which are discourteous or disparaging to any judge, opposing counsel, or any court, are strictly forbidden.”


text:
    A11A0024.
    MASK v. THE STATE.
    (711 SE2d 348)
   BARNES, Presiding Judge.

Following a bifurcated jury trial at which he was acquitted of possession of methamphetamine, William Kirk Mask was found guilty of possession of a firearm by a convicted felon. Mask filed a motion for new trial, then later moved to withdraw the motion, which the trial court granted. He now appeals his conviction, contending that the trial court erred in instructing the jury on possession, and that the evidence was insufficient to sustain his conviction. Following our review, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that officers with the Floyd County Metro Task Force executed a search warrant at Mask’s residence. Officers located Mask in a barn located on the property standing near an automobile. They searched the automobile and retrieved glass smoking devices containing methamphetamine residue. Police also retrieved scales, plastic baggies, and glass tubes from Mask’s bedroom. They located a .22 caliber rifle in a case under a bed in the same bedroom. Mask was arrested and charged with possession of methamphetamine, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon.

Before trial, the State nolle prossed the charge of possession of a firearm during the commission of a crime. Mask was found not guilty of possession of methamphetamine, after which the jury heard evidence related to the possession of a firearm by a convicted felon. The State introduced a certified copy of Mask’s conviction for burglary. The jury found Mask guilty, and he was later sentenced as a three-time recidivist under OCGA § 17-10-7 (c) to five years to serve.

1. Mask first contends that the trial court erred in instructing the jury regarding possession of a firearm by a convicted felon. We do not agree.

The trial court charged the jury that “any person who has been convicted of a felony who receives, possesses, or transports any firearm commits the offense of possession of a firearm by a convicted felon.” Mask asserts that the instruction was erroneous and harmful as a matter of law because the indictment charged him with “possessing a firearm after having been convicted of a felony,” while the instruction as given permitted the jury to consider two other methods not charged in the indictment — specifically, receiving or transporting a firearm.

Here, the indictment charged Mask with

possession of [a] firearm by [a] convicted felon (OCGA § 16-11-131) for . . . unlawfully then and there, having been convicted on the 14th day of March, 1990, by a court of competent jurisdiction of the offense of burglary, a felony, under the laws of this State, [did] receive, possess and transport a firearm, to wit: a .22 caliber rifle.

It mimicked the language of the statute which provides that “[a]ny person who . . . has been convicted of a felony by a court of this state or any other state . . . and who receives, possesses, or transports any firearm” commits the offense of possession of a firearm by a convicted felon. OCGA § 16-11-131 (b). Thus, although the indictment charged Mask with possession of a firearm, it did not, as Mask alleges, specify that he did so by actually having the firearm in his possession. To enable the jury to consider whether Mask “possessed” the firearm within the meaning of the statute, the trial court correctly instructed them on the definitions of the various forms of possession, distinguishing between actual and constructive possession. It further instructed the jury that constructive possession requires that a person knowingly have “both the power and the intention at a given time to exercise authority or control over a thing.” Considering the challenged instruction in the context of the trial court’s charge as a whole, we find no error. Hilton v. State, 288 Ga. 201, 206 (4) (b) (702 SE2d 188) (2010) (“[J]ury charges are not to be evaluated in isolation, but rather must be considered as a whole.”).

2. Mask contends there was no direct evidence linking him to the gun in the bedroom, and that he was not present in the home when the gun was discovered. Mask’s girlfriend testified that when she took the gun and rat ammunition to Mask’s house three days before he was arrested, he told her to get the gun out of the house, but that she had put it under the bed without his knowledge. Mask’s stepfather testified that he witnessed the conversation.

This Court gives due regard to the jury’s opportunity to judge witness credibility, and we do not weigh the evidence or determine witness credibility. Sheppard v. State, 300 Ga. App. 631 (686 SE2d 295) (2009). “It is not for us to determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence.” (Citation omitted.) Thompson v. State, 281 Ga. App. 627, 629 (1) (636 SE2d 779) (2006). As long as there is some evidence, even though contradicted, to support each necessary element of the state’s case, this Court will uphold the jury’s verdict. Parnell v. State, 260 Ga. App. 213, 218 (6) (581 SE2d 263) (2003).

The law recognizes two kinds of possession, actual possession and constructive possession. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.

(Citations and punctuation omitted.) Ancrum v. State, 197 Ga. App. 819, 822 (2) (399 SE2d 574) (1990). Constructive possession is sufficient to show violation of the statute, and it may be proved by circumstantial evidence. See Moses v. State, 265 Ga. App. 203, 213 (6) (c) (593 SE2d 372) (2004); Slater v. State, 209 Ga. App. 723, 724 (1) (434 SE2d 547) (1993).

Decided June 3, 2011.

Jonathon J. Majeske, for appellant.

Leigh E. Patterson, District Attorney, John F. McClellan, Jr., Assistant District Attorney, for appellee.

It is immaterial that the gun was found in the bedroom that Mask shared with his girlfriend and that Mask was not present when the gun was found. The gun was found in Mask’s residence. See Wright v. State, 279 Ga. App. 299, 299 (1) (630 SE2d 774) (2006) (“As long as there is slight evidence of access, power, and intention to exercise control or dominion over an instrumentality, the question of fact regarding constructive possession remains within the domain of the trier of fact.”). Here, although Mask’s girlfriend testified that he had no knowledge of the gun, and that it was her gun and that Mask had asked her to remove it from the house, Mask initially told police that “we use” the guns to shoot rats. Further, the gun was found under the bed in Mask’s bedroom, and there was rat ammunition in the room as well. See Simpson v. State, 213 Ga. App. 143, 144-145 (1) (444 SE2d 115) (1994) (circumstantial evidence held sufficient to show that defendant, a convicted felon, was in joint constructive possession of a shotgun with his brother).

We find the evidence sufficient to authorize any rational trier of fact to find Mask guilty beyond a reasonable doubt of possession of a firearm by a convicted felon. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Adams and Blackwell, JJ., concur.