author: McFADDEN, Judge.

text:
    A16A1071.
    BABINSACK v. ALFONSO-GARCIA.
    (786 SE2d 501)
   McFADDEN, Judge.

Aline Babinsack appeals from a stalking protective order entered against her. Initially, we hold that Babinsack was entitled to file a direct appeal from the order, even though the case remains pending below. As for the merits of the appeal, Babinsack argues that the trial court erred by entering the order because any stalking had ended a year before, but stalking protective orders may be entered to prevent future conduct. Babinsack also argues that the evidence does not support the order, but without a transcript of all the evidence presented to the court, we are bound to assume the evidence was sufficient. We therefore affirm the order.

1. Factual background.

“In reviewing the sufficiency of the evidence supporting a stalking protective order, we do not weigh the evidence or assess witness credibility, and we construe the evidence in favor of the findings of the trier of fact.” Thornton v. Hemphill, 300 Ga. App. 647 (686 SE2d 263) (2009) (citation and punctuation omitted). Viewed in this light, the evidence shows that Alejandro Alfonso-Garcia’s wife is Babinsack’s daughter. When Alfonso-Garcia’s wife moved to the United States to be with him, Babinsack began making threatening telephone calls to the couple. At some point, Alfonso-Garcia and his wife decided to have no contact with Babinsack and to disallow her from having contact with their children.

Babinsack moved from Florida to Georgia to be near Alfonso-Garcia’s family and filed a petition for grandparent visitation. She telephoned Alfonso-Garcia and left voice mail messages warning that she was using social media “to get evidence” that she could use to send Alfonso-Garcia and his wife to prison and to have his wife deported. Babinsack wanted to separate them to ensure the success of her grandparent visitation petition.

Six days after the trial court dismissed Babinsack’s petition for grandparent visitation, Alfonso-Garcia filed this petition against Babinsack and her husband for a stalking protective order. At the hearing on the petition, Alfonso-Garcia played several voice mail messages from Babinsack; he had saved more than 100. The appellate record does not include the content of the voice mails because the court reporter did not transcribe them, and Babinsack has submitted no substitute for this evidence. But Babinsack testified at the hearing, admitted making “all these phone calls,” and explained that she had been upset.

At the conclusion of the hearing, the trial court announced that she was granting the protective order as to Babinsack but denying it as to Babinsack’s husband. That same day, the trial court entered the written stalking protective order against Babinsack. The appellate record contains no order denying the petition as to Babinsack’s husband. After the trial court denied Babinsack’s motion for new trial, she filed this appeal.

2. Jurisdiction.

This court “has a duty to raise the question of its jurisdiction in all cases in which there may be any doubt regarding the existence of such jurisdiction.” Bandy v. Elmo, 280 Ga. 221 (626 SE2d 505) (2006) (citation omitted). Although the trial court orally indicated that she was denying the petition for a stalking protective order against Babinsack’s husband, there is no written order doing so. “[W]hat the judge orally declares is no judgment until it has been put in writing and entered as such.” Titelman v. Stedman, 277 Ga. 460, 461 (591 SE2d 774) (2003) (citation omitted). Therefore, there is no final order on the claims against Babinsack’s husband, and the case remains pending below.

Generally, parties are required to comply with the provisions of OCGA § 5-6-34 (b) in order to obtain review of an order when the case remains pending below. See Crane v. State, 281 Ga. 635, 635-636 (641 SE2d 795) (2007). However, OCGA § 5-6-34 (a) (4) permits direct appeals from “[a]ll judgments or orders granting or refusing applications for receivers or for interlocutory or final injunctions.” And here, the stalking protective order entered against Babinsack is in the nature of an injunction, which is “[a] court order commanding or preventing an action.” Black’s Law Dictionary (10th ed. 2014). The stalking protective order “enjoined and restrained” Babinsack from contacting, harassing, interfering, intimidating, or approaching Alfonso-Garcia or his immediate family. Consequently, although the action remains pending below, Babinsack could directly appeal from the stalking protective order under the authority of OCGA § 5-6-34 (a) (4). State v. Singh, 291 Ga. 525, 526-527 (1) (731 SE2d 649) (2012) (order that functioned as the dismissal of temporary injunctive relief was directly appealable under OCGA § 5-6-34 (a) (4)); Morgan v. U.S. Bank Nat. Assn., 322 Ga. App. 357, 359 (2) (745 SE2d 290) (2013) (OCGA § 5-6-34 (a) (4) permitted appellant to file a direct appeal from an order that in “function and substance was to deny [appellant] interlocutory injunctive relief pending the litigation of the various claims raised in his complaint and amended complaint.”) (citation omitted).

Decided May 16, 2016.

Andy Clark Law, M. Andrew Clark, for appellant.

Alejandro Alfonso-Garcia, pro se.

3. Propriety of stalking protective order.

Babinsack argues that the purpose of a stalking protective order is to end stalking, but that here the undisputed evidence was that Babinsack had not contacted Alfonso-Garcia or his wife for at least a year. Consequently, she argues, the trial court erred in entering the order. We disagree. One purpose of a stalking protective order is to prevent stalking that “may occur in the future.” OCGA § 16-5-94 (c).

Babinsack argues the trial court erred in entering the stalking protective order because Alfonso-Garcia did not present evidence that he or his family were in reasonable fear for their safety, see Sinclair v. Daly, 295 Ga. App. 613, 615-616 (672 SE2d 672) (2009), or evidence that Babinsack contacted him “at or about a place or places” he occupied. See OCGA § 16-5-90 (a) (1). But absent the content of the voice mail messages, “the record fails to contain a complete transcript of the evidence presented at trial. In the absence of a [complete] transcript, we are bound to assume that [the trial court’s order] was supported by sufficient evidence.” Brown v. State, 294 Ga. App. 535 (669 SE2d 542) (2008) (citation and punctuation omitted).

Judgment affirmed.

Miller, P. J., concurs. McMillian, J., concurs fully in Divisions 1 and 3 and in judgment only in Division 2.


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A16A0072.
    SILVA v. GEORGIA DEPARTMENT OF TRANSPORTATION.
    (787 SE2d 247)
   McFadden, Judge.

Janette Atkinson Silva was injured in a motor vehicle collision with a driver employed by the Georgia Department of Transportation. She filed suit, but the trial court dismissed her complaint for failure to comply with the ante litem notice provisions of the Georgia Tort Claims Act, OCGA § 50-21-20 et seq., in that Silva did not specify the amount of the loss she claimed. On appeal, Silva argues that the trial court erred by retroactively applying Board of Regents of the University System of Georgia v. Myers, 295 Ga. 843 (764 SE2d 543) (2014), but the real question is whether the trial court correctly applied the ante litem notice provision, and it did. Silva argues that the state was estopped from claiming her ante litem notice was defective, but the state may not waive such defects. Finally, Silva argues that she effectively amended her ante litem notice, but her amendment was not effective because it was not timely. We therefore affirm the trial court.

1. Procedural posture.

Silva was injured when a Department of Transportation driver rear-ended her vehicle. A month after the accident, Silva’s attorney sent ante litem notice of her claim to the commissioner of the Department of Transportation, the attorney general, and the Risk Management Division of the Department of Administrative Services. The notice explained the circumstances of the accident, described Silva’s injuries and medical treatment, and stated that Silva was still receiving treatment for her injuries. The notice concluded that it would be presumed to comply with the requirements of OCGA § 50-21-26, the ante litem notice provision of the Georgia Tort Claims Act, unless the recipient notified Silva’s attorney of any defect within ten days of receipt.

Silva filed suit in July 2014, seeking damages for medical expenses totaling $89,120, lost wages of $2,400, and pain and suffering. The Department of Transportation moved to dismiss the lawsuit on the ground that Silva failed to comply with the ante litem notice requirements of OCGA § 50-21-26. On October 30, 2014, Silva’s attorney sent an amended ante litem notice, listing a dollar value for Silva’s lost wages and medical expenses and claiming a loss of $ 1 million. The trial court granted the Department of Transportation’s motion to dismiss because Silva’s ante litem notice did not specify the monetary amount ofloss claimed and thus failed to comply with OCGA § 50-21-26 (a) (5) (E). Silva filed this appeal.

2. Sufficiency of notice.

The Georgia Tort Claims Act is “a limited waiver of the [s]tate’s sovereign immunity, crafted, as is constitutionally authorized, by our [legislature, and not subject to modification or abrogation by our courts.” Cummings v. Ga. Dept. of Juvenile Justice, 282 Ga. 822, 824 (653 SE2d 729) (2007) (citation omitted). Among other things, the Act “requires a party with a potential tort claim against the [s]tate to provide the [s]tate with notice of the claim prior to filing suit thereon. OCGA § 50-21-26.” Id. at 823. A claimant must give notice of her claim within 12 months of the date of loss, OCGA § 50-21-26 (a) (1), and must strictly comply with the notice provisions as a prerequisite to filing suit; substantial compliance is not sufficient. Cummings, 282 Ga. at 824 (citation omitted). If a claimant does not meet the ante litem notice requirements, “then the [sjtate does not waive sovereign immunity, and therefore, the trial court lacks subject matter jurisdiction.” Myers, supra, 295 Ga. at 845.

The Act is specific about what must be included in the ante litem notice of claim. Under OCGA § 50-21-26 (a) (5) of the Act, the notice of claim must

... state, to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances, the following: (A) The name of the state government entity, the acts or omissions of which are asserted as the basis of the claim; (B) The time of the transaction or occurrence out of which the loss arose; (C) The place of the transaction or occurrence; (D) The nature of the loss suffered; (E) The amount of the loss claimed; and (F) The acts or omissions which caused the loss.

Silva’s original notice of claim did not include the amount of the loss she claimed as required by subsection (E). She argues that at the time she sent the notice, she was unable to specify the amount of the loss claimed — or even a reasonable estimate of her loss — because she had no idea what medical expenses she would incur in the future. She further argues that, until our Supreme Court decided Myers, supra, 295 Ga. at 843, well after Silva’s notice was due, notices that omitted the amount of loss claimed because it was not “practicable under the circumstances” to include such information were nonetheless compliant with the statute. She argues that because Myers announced a new rule of law, the trial court erred in applying it retroactively We disagree.

In Myers, our Supreme Court held that the claimant’s “notice failed to strictly comply with [the] ante litem notice requirement because it did not state any amount of loss whatsoever.” 295 Ga. at 846. Although the claimant was still incurring medical bills and did not know the full extent of her injury, the court held that she was required to give some notice of the amount of the loss she claimed, even if it were simply notice “that, based on her belief, there would be some pain and suffering damages or lost wages in the future, the amounts of which she did not yet have knowledge and could not practicably provide at that time.” Id. at 846-847. Here, the trial court relied on Myers in dismissing Silva’s complaint.

Silva argues that Myers announced a new rule of law that should not be applied retroactively Generally,

judicial decisions apply retroactively, unless the decision itself expresses that it should be given prospective effect or the equities favor prospective application under the three-pronged test set forth in Chevron Oil v. Huson, 404 U. S. 97 (92 SCt 349, 30 LE2d 296) (1971). The criteria oí Chevron Oil require a court to: (1) Consider whether the decision to be applied nonretroactively established a new principle of law, either by overruling past precedent on which litigants relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. (2) Balance the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation would further or retard its operation. (3) Weigh the inequity imposed by retroactive application, for, if a decision could produce substantial inequitable results if applied retroactively, there is ample basis for avoiding the injustice or hardship by a holding of nonretroactivity.

Sherman v. Dev. Auth. of Fulton County, 324 Ga. App. 23, 24 (749 SE2d 29) (2013) (citations and punctuation omitted).

In the instant case, the first prong of the Chevron Oil test is dispositive of the issue of retroactivity. While our Supreme Court’s decision in Myers reversed this court’s decision in that case, it did not overrule precedent and, contrary to Silva’s argument, it did not announce a new rule of law. Indeed, we previously had held that the complete omission of one of the six categories of information required by the ante litem notice statute, including the amount of the loss claimed, rendered such notices insufficient. See, e.g., Perdue v. Athens Tech. College, 283 Ga. App. 404, 408-409 (641 SE2d 631) (2007) (ante litem notice did not state the amount of the loss claimed as required by OCGA § 50-21-26 (a) (5) (E)); Camp v. Coweta County, 271 Ga. App. 349, 355 (3) (609 SE2d 695) (2005), reversed in part on other grounds, 280 Ga. 199 (625 SE2d 759) (2006) (ante litem notice did not provide the specific place or time of the incident or the nature of the plaintiff’s injuries as required by OCGA § 50-21-26 (a) (5) (B), (C) and (D)); Johnson v. E. A. Mann & Co., 273 Ga. App. 716, 721-722 (616 SE2d 98) (2005) (ante litem notice failed to name any state entity that plaintiff sought to hold responsible for his injuries as required by OCGA § 50-21-26 (a)).

On the other hand, we have found no case applying the ante litem notice provisions of the Act in which we or our Supreme Court found an ante litem notice that omitted an entire category of information to be sufficient. Silva cites Sikes v. Candler County, 247 Ga. 115, 118 (274 SE2d 464) (1981), but that case addressed compliance with the predecessor to OCGA § 36-11-1, which concerns claims against counties, not the Georgia Tort Claims Act.

In sum, Myers did not announce a new principle of law, its application does not implicate the question of non-retroactivity, and the trial court correctly relied on it in dismissing this case. Cf. Federated Mut. Ins. Co. v. DeKalb County, 255 Ga. 522, 523-524 (341 SE2d 3) (1986) (Because Supreme Court had “laid down a new principle of law by deciding an issue of first impression whose resolution was not clearly foreshadowed [the Court was required to] address the question of non-retroactivity.”).

3. Waiver of defect.

Silva argues that the trial court erred by holding that the state may never waive the ante litem notice requirements or be estopped from asserting defects in the notice. And here, she claims, the state waived any defect in her notice by failing to respond when the notice warned that it would be “presumed to comply” with the requirements of OCGA § 50-21-26 unless the state notified her attorney of any defect within ten days of receipt. But Silva has pointed to no authority that permitted her to unilaterally impose a duty on the state to respond to her letter or face a wavier of sovereign immunity The state may not waive or be estopped from invoking statutory notice requirements. DeFloria v. Walker, 317 Ga. App. 578, 581 n. 9 (732 SE2d 121) (2012).

4. Amendment.

Silva argues that the trial court erred in implicitly concluding that any amendment of an ante litem notice must be made within 12 months of the injury to be effective. She argues that under Cummings, supra, 282 Ga. at 822, there is no deadline for amending ante litem notices so long as relation back to the original notice does not prejudice the state. But Cummings did not hold that. Instead, in Cummings our Supreme Court held that the claimant’s original, timely notice complied with the statute, not that any amendment related back. In fact, in a footnote, the court indicated that to be timely, an amendment must come before the 12-month deadline. Id. at 826 n. 4 (“Notably, Cummings served her initial notice more than four months before the 12-month deadline, allowing ample time for her to amend and resend her notice in a timely manner had she been made aware of the necessity of doing so.”) (emphasis supplied).

Decided May 17, 2016

Nelson Mullins Riley & Scarborough, Erika C. Birg; Hinton & Powell, Douglas R. Powell; Montlick & Associates, Kathleen Edwards-Opperman, for appellant.

Samuel S. Olens, Attorney General, Melissa A. Tracy, Assistant Attorney General, for appellee.

Judgment affirmed.

Miller, P. J., and McMillian, J., concur.


text:
    A16A0238.
    CALLAHAM v. GEORGIA PORTS AUTHORITY.
    (786 SE2d 505)
   McFADDEN, Judge.

Kelvin Callaham appeals the dismissal of his personal injury action against the Georgia Ports Authority On appeal, he argues that when taken together, two documents, a letter to the Ports Authority’s insurance adjuster and a notice of claim to the Risk Management Division of the Department of Administrative Services, satisfied the ante litem notice requirement of the Georgia Tort Claims Act, OCGA § 50-21-20 etseq. We disagree. OCGA § 50-21-26 (a) (2) of the Act provides that when a person has a tort claim against the state, “a copy [of the person’s notice of claim] shall be delivered personally to or mailed by first-class mail to the state government entity, the act or omissions of which are asserted as the basis of the claim.” Since Callaham did not mail or personally deliver to the Ports Authority a copy of the notice of claim he sent to the Risk Management Division, he did not strictly comply with the requirements of that section. And because the duty to strictly comply with those requirements cannot be excused on the basis of actual notice, the letter to the adjuster does not supply that omission. Consequently, the trial court properly dismissed his action.

On October 3, 2012, Callaham was injured in an auto accident at a Georgia Ports Authority terminal in Savannah. Later that month, his attorney sent the first of the two documents in question, a letter to a claims adjuster for the Georgia Ports Authority. That letter advised her of his representation of Callaham and notified her that Callaham had sustained injuries and was receiving medical treatment. The letter included a copy of the police report and requested that the claims adjuster provide the declaration page showing the policy limits of the insured’s automobile insurance coverage. And it notified her that once Callaham had completed his medical treatment, the attorney would forward to the claims adjuster his evaluation of the case and demand. In June 2013, the attorney sent by certified mail the second of the documents in question: Callaham’s notice of claim to the Risk Management Division of the Department of Administrative Services.

In May 2014, he filed this action. The Georgia Ports Authority moved to dismiss the complaint because Callaham failed to personally deliver or mail a copy ofthe notice of claim to it as OCGA § 50-21-26 (a) (2) requires. The trial court granted the motion, and Callaham filed this appeal.

On appeal, Callaham argues that his October 2012 letter to the Georgia Ports Authority, combined with the June 2013 notice of claim sent to the Department of Administrative Services constitute sufficient ante litem notice. OCGA § 50-21-26 (a) (2), which is reproduced in full below, requires a person with a tort claim against the state to give written notice of the claim. The statute requires the claimant to mail the notice by certified mail or statutory overnight delivery, return receipt requested, or delivered personally to and a receipt obtained from the Risk Management Division of the Department of Administrative Services. And it requires the claimant to deliver personally or by first-class mail a copy of the notice of claim to the state government entity whose acts the claimant asserts to be the basis of the claim. OCGA § 50-21-26 (a) (5), which is also reproduced in full below, requires the claimant to specify in the notice of claim certain items of information, including the time, place, nature, and amount of the loss.

To determine whether a claimant has complied with the ante litem notice provision of the Act, we must look “to the plain meaning of the statutory language.” Williams v. Georgia Dept. of Human Resources, 272 Ga. 624, 625 (532 SE2d 401) (2000). And “the [Georgia] Tort Claims Act, by its own terms, must be strictly construed.” Howard v. State of Ga., 226 Ga. App. 543 (1) (487 SE2d 112) (1997). In this case, although Callaham properly sent his notice of claim to the Risk Management Division of the Department of Administrative Services, he did not personally deliver or mail a copy of his notice of claim to the Georgia Ports Authority. He argues that his October 2012 letter to the Authority satisfies that requirement when combined with the notice to the Risk Management Division, but the letter did not include all of the elements that must be included in a notice of claim. See OCGA § 50-21-26 (a) (5). Callaham never sent to the Georgia Ports Authority the notice required by the statute.

In Dempsey v. Bd. of Regents of the Univ. System of Ga., 256 Ga. App. 291, 293-294 (568 SE2d 154) (2002), this court stated that the plain language of OCGA § 50-21-26 (a) (2) provides that the notice

must be mailed by certified mail, return receipt requested, or delivered personally to the Risk Management Division of the Department of Administrative Services; and a copy must be mailed or delivered to the state government entity whose acts or omissions serve as the basis for the claim.

Id. (citations omitted; emphasis in original). In Grant v. Faircloth, 252 Ga. App. 795 (556 SE2d 928) (2001), we stated that a plaintiff must give the ante litem notice to the Risk Management Division of the Department of Administrative Services with a copy to the agency involved within 12 months of the occurrence as mandated by OCGA § 50-21-26 (a), and that substantial compliance is inadequate. Id. In this case, it is undisputed that Callaham did not mail or personally deliver a copy of the ante litem notice to the Ports Authority within 12 months as the plain language of the statute requires.

Our Supreme Court has held that while hyper-technical compliance is not required, substantial compliance is not sufficient; what is required is strict compliance.

Decided May 17, 2016.

Jason & Bradley, Daniel C. Jason, for appellant.

Samuel S. Olens, Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Jared M. Campbell, Assistant Attorney General, for appellee.

[T]he rule of strict compliance does not demand a hyper-technical construction that would not measurably advance the purposes of the [Act’s] notice provisions, even in cases that arguably reflect some degree of leniency, the plaintiffs complied with the plain language of the ante-litem-notice provisions.... Suffice it to say, substantial compliance is not strict compliance. Strict compliance is exactly what it sounds like: strict. Thus, as we have previously warned, the explicit ante litem notice provision is ignored only at peril to a plaintiff’s cause of action and serves as a condition precedent for bringing suit under the Act.

DeFloria v. Walker, 317 Ga. App. 578, 582 (732 SE2d 121) (2012) (citations and punctuation omitted).

Callaham’s argument that the two documents, when taken together, satisfied the notice requirement is unavailing. The statute requires the claimant to mail to the agency whose acts form the basis of the claim notice that contains certain items of information. He does not dispute that he never sent to the Georgia Ports Authority those items of information. Even when the state agency has actual notice, a claimant is not excused from strictly complying with the notice requirements. Williams v. Ga. Dept. of Transp., 275 Ga. App. 88, 91 (1) (619 SE2d 763) (2005).

“[T]he notice [Callaham] contends he made was not that specified in OCGA § 50-21-26 (a), and his claim was dismissed properly... because the trial court did not have subject matter jurisdiction over the action.” Kim v. Dept. of Transp., 235 Ga. App. 480, 482 (2) (510 SE2d 50) (1998) (citations omitted).

Judgment affirmed.

Miller, P. J., and McMillian, J., concur.

       No person, firm, or corporation having a tort claim against the state under this article shall bring any action against the state upon such claim without first giving notice of the claim as follows:... Notice of a claim shall be given in writing and shall be mailed by certified mail or statutory overnight delivery, return receipt requested, or delivered personally to and a receipt obtained from the Risk Management Division of the Department of Administrative Services. In addition, a copy shall be delivered personally to or mailed by first-class mail to the state governmen t ent ity, the act or omissions of which are asserted as the basis of the claim. Each state government entity may designate an office or officer within that state government entity to whom a notice of claim is to be delivered or mailed[.]
      OCGA § 50-21-26 (a) (2) (emphasis supplied).

       A notice of claim under this Code section shall state, to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances, the following: (A) The name of the state government entity, the acts or omissions of which are asserted as the basis of the claim; (B) The time of the transaction or occurrence out of which the loss arose; (C) The place of the transaction or occurrence ; (D) The nature of the loss suffered; (E) The amount of the loss claimed; and (F) The acts or omissions which caused the loss.
      OCGA § 50-21-26 (a) (5).


author: MILLER, Presiding Judge.

text:
    A14A0266.
    THE MEDICAL CENTER, INC. v. BOWDEN.
    (786 SE2d 543)
    Decided May 18, 2016.

      Fischer Scott, Bobby L. Scott, for appellant.

      Charles A. Gower, for appellee.
   MILLER, Presiding Judge.

In Bowden v. The Medical Center, Inc., 297 Ga. 285 (773 SE2d 692) (2015), the Supreme Court of Georgia reversed the judgment of this Court in The Medical Center, Inc. v. Bowden, 327 Ga. App. 714 (761 SE2d 116) (2014). We therefore vacate our opinion in Bowden, supra, 327 Ga. App. 714 and adopt the judgment of the Supreme Court as the opinion of this Court.

Judgment affirmed.

Doyle, C. J., and Dillard, J., concur.


author: McMlLLIAN, Judge.

text:
    A16A0053.
    DUMAS v. THE STATE.
    (786 SE2d 508)
   McMlLLIAN, Judge.

Gregory Dumas appeals the denial of his motion for new trial after a jury convicted him of rape and child molestation. On appeal, he asserts that the trial court erred in denying his claim that he received ineffective assistance of trial counsel. We agree and reverse.

Viewed in the light most favorable to the verdict, the evidence showed that for a four-month period between 1999 and 2000, the victim lived with her mother, sister, and Dumas, who was her mother’s boyfriend at the time. On one occasion, when the victim was around seven years old and her mother was at work, the victim woke up with gum in her hair and went to Dumas for help. Dumas cut the gum out of her hair and told her to stop crying. He said he would make her feel better and took her into her mother’s bedroom where he folded a sheet over her face, pulled down her pants, and put his penis on the outside of her vagina. The victim then felt a sharp pain and told Dumas it hurt, but he kept going. Dumas stopped when the victim’s little sister came into the house from outside. When Dumas left the room, the victim went to the bathroom and discovered blood running down her leg. Afterward, on a number of occasions, when the victim’s mother was at work and her sister was outside, Dumas touched the victim’s vagina with his fingers and his penis.

The victim did not tell her mother about these incidents because she was scared, and Dumas told her not to say anything. However, when the victim was around eight years old, she began cutting herself on her arms and engaged in other self-destructive behaviors. She testified that she did these things because of what had happened to her. At around the same time, the victim’s family began noticing changes in her behavior. She started isolating herself, would not play with other kids, and she appeared sad. Her family did not notice that the victim had been cutting herself, however, because she started wearing baggy clothes and long-sleeve shirts.

In 2007, when the victim was 17 and after she had begun therapy, she told her cousin, grandmother, and mother what had happened, and her mother contacted police. The police obtained a warrant for Dumas at that time, but he was not arrested until 2011 when the outstanding warrant was discovered during a routine license plate check.

On appeal, Dumas asserts that his trial counsel was ineffective in failing to (1) request a curative instruction or a mistrial in response to the State’s improper questioning and argument regarding his post-arrest silence; (2) object to the State’s closing argument asking the jury to rectify what it argued was a systemic problem with child sexual assault cases; (3) present evidence of the victim’s history of sexual and physical abuse by others and in failing to oppose the State’s motion in limine to exclude such evidence; and (4) challenge a juror who indicated that he had a bias against presuming Dumas to be innocent because the juror’s own daughter had almost been raped.

In order to prevail on his claim of ineffective assistance, appellant must show both that counsel’s performance was deficient and that the deficiency prejudiced him such that there is a reasonable probability that, but for the deficiency, the outcome of his trial would have been different. Strickland v. Washington, 466 U. S. 668 (III) (104 SCt 2052, 80 LE2d 674) (1984).

Grant v. State, 295 Ga. 126, 130 (5) (757 SE2d 831) (2014). And “[i]n reviewing a claim of ineffective assistance, we give deference to the trial court’s factual findings and credibility determinations unless clearly erroneous, but we review a trial court’s legal conclusions de novo.” Id.

1. Dumas first asserts that his trial counsel was ineffective in failing to request a curative instruction or mistrial after the prosecutor repeatedly and improperly questioned him on his post-arrest silence and improperly addressed the issue in closing argument.

Dumas testified in his own defense at trial and denied that he had ever inappropriately touched the victim. On appeal, he cites to six occasions during cross-examination when the State asked him whether he had ever before related the version of events to which he testified at trial. On each occasion, his trial counsel objected to the question.

The trial court sustained the first objection after the prosecutor asked, “Despite [the fact that he had a chance to review the evidence against him prior to trial], today is the very first time that you have opened your mouth to say anything about what happened?” The trial court then told Dumas that he “[did not] have to answer that question.” The prosecutor next asked, “In April of 2011, did you tell the police your version of the facts?” Dumas’ attorney again objected, and the trial judge held an off-the-record bench conference to discuss the matter. After the conference, the judge instructed the prosecutor that she could proceed “with those instructions,” but the instructions themselves are not in the record.

The prosecutor next asked, “Prior to today, have you made any statements alleging this version of the facts that you gave to the jury?” Dumas’ counsel again objected. The trial court overruled the objection and directed Dumas that he could answer. Dumas’ attorney also objected on the ground of relevance when the prosecutor repeated her question by asking whether Dumas had told his version of events to anybody, and the trial court again overruled the objection. Dumas testified that he had not really talked to anyone. And when the prosecutor asked Dumas whether he had ever made a statement “to any authorities” regarding his version of the facts, the trial court again overruled counsel’s objection and directed Dumas to answer. He replied in the negative.

Later, the State asked, “And Mr. Dumas, you’re saying that you never took it upon yourself being charged with rape . . . and child molestation, to ever attempt to provide the police with a statement of your version of the facts?” Dumas’ counsel objected, noting, “That’s not his responsibility, Your Honor.... And plus he has — he has rights against that.” The trial court sustained the objection, stating, “He has a right to remain silent.”

Dumas’ trial counsel did not ask for any curative instructions following this exchange, and at the hearing on the motion for new trial, he could not recall why he did not do so. He testified that he generally asks for a curative instruction when he feels like one is warranted, but he did not know why he did not ask for one in this case. However, on cross-examination at the hearing, he acknowledged that the trial court’s statement that Dumas had the right to remain silent was what he wanted the jury to know and understand.

Subsequently, in closing argument, after noting that the defense had emphasized that the police never asked Dumas for his version of events when he was arrested, the prosecutor stated, “You’re getting picked up on a rape warrant. Scream it from the mountaintops, I didn’t do it. But nothing.” Dumas’ counsel did not raise any objection to this argument, and at the hearing on the motion for new trial, he could not recall why he did not object.

“Georgia law is abundantly clear that arguments commenting on a defendant’s silence are impermissible.” (Citations omitted.) Cheeks v. State, 325 Ga. App. 367, 368 (750 SE2d 753) (2013). See Reynolds v. State, 285 Ga. 70, 71 (673 SE2d 854) (2009); Mallory v. State, 261 Ga. 625, 630 (5) (409 SE2d 839) (1991), overruled on other grounds recognized in Clark v. State, 271 Ga. 6, 10 (5) (515 SE2d 155) (1999); Scott v. State, 305 Ga. App. 710, 716 (2) (a) (700 SE2d 694) (2010); Johnson v. State, 293 Ga. App. 728, 730 (667 SE2d 637) (2008). And “[djefense counsel’s failure to object to such comments amounts to deficient performance.” State v. Moore, 318 Ga. App. 118, 122 (2) (733 SE2d 418) (2012). See also Thomas v. State, 284 Ga. 647, 649 (3) (a) (670 SE2d 421) (2008) (where prosecutor’s conduct violated rule against commenting on pre-arrest silence, “counsel’s performance was deficient to the extent he did not object”); Lampley v. State, 284 Ga. 37, 38-39 (2) (b) (663 SE2d 184) (2008) (same).

Here, Dumas’ attorney consistently objected to the State’s cross-examination questions regarding Dumas’ failure to tell the police his version of events, and the trial court sustained some of these objections but overruled others. The trial court sustained counsel’s final objection, explaining that Dumas had the right to remain silent. Thus, trial counsel’s performance cannot be deemed deficient in failing to ask for a curative instruction after the trial court sustained his last objection. However, when the prosecutor again raised the issue in closing argument, Dumas’ counsel failed to object, ask for a curative instruction, or move for a mistrial based on prosecutorial misconduct. Counsel offered no reason for these omissions at the hearing on the motion for new trial. Because no reasonable, strategic reason for trial counsel’s failure to object appears in the record, we find that trial counsel’s performance was deficient, and the first prong of the Strickland test is met. See Hines v. State, 277 Ga. App. 404, 408 (2) (626 SE2d 601) (2006) (defense counsel’s failure to object to improper comments on defendant’s silence constituted deficient performance).

The State argues and the trial court found below that Dumas’ counsel opened the door to the prosecutor’s comment by stating in closing argument that the police did not even bother asking Dumas for his side of the story when he was arrested. We disagree.

Here, the State first injected the issue of Dumas’ silence into the case by repeatedly asking him, over defense objections, why he did not volunteer his denial to police or anyone else. After two of the defense objections were overruled, Dumas on cross-examination, testified that he had not told his story to anyone or to any authority It was only on redirect that Dumas testified that the police had never asked for his side of the story. Dumas was entitled to rebut the State’s evidence regarding his silence, and thus his attorney’s comment upon this rebuttal evidence in his closing argument was within the range of proper argument. See Mikell v. State, 286 Ga. 434, 438 (5) (689 SE2d 286) (2010), overruled on other grounds by Manley v. State, 287 Ga. 338 (698 SE2d 301) (2010) (“prosecutor’s comments in closing argument did not exceed the scope of the invited response”). See generally Morgan v. State, 267 Ga. 203, 206 (3) (476 SE2d 747) (1996) (closing “argument must be derived from evidence properly before the factfinder”).

In contrast, the State’s comment was not based on evidence properly before the jury; rather, it was an impermissible comment in violation of Dumas’ right to silence after the trial court’s final ruling on the issue — that the State could not ask whether Dumas had failed to tell his story to the police upon being charged with the crimes. Although we consider this issue to be a close question, under these circumstances, where the State first injected the issue of Dumas’ silence into the case and repeatedly raised the issue over defense objections, we find that defense counsel’s comment addressing properly admitted rebuttal evidence should not be construed as opening the door to the prosecutor’s improper argument. See Collins v. State, 289 Ga. 666, 668 (2) (715 SE2d 136) (2011) (defendant did not open door to questions about his silence by testifying that he turned himself in to police when he saw on the news that the victim had been shot). Compare Doyle v. State, 291 Ga. 729, 733 (3) (733 SE2d 290) (2012) (defense counsel’s question to defendant on direct examination as to why he never told his story before opened the door to the prosecution’s questions and argument on the issue); Fullwood v. State, 304 Ga. App. 341, 342-43 (3) (696 SE2d 367) (2010) (defendant’s direct testimony explaining why he did not talk to police opened the door for prosecution’s questions and comments on his silence); Gaston v. State, 257 Ga. App. 480, 484 (3) (571 SE2d 477) (2002) (defense opened the door to cross-examination about defendant’s silence by asking police officer if he talked to defendant about the charges against him).

Turning now to the second prong of the test, we must consider whether the prosecutor’s argument prejudiced the defendant. In Georgia, appellate courts must consider a number of factors “when determining whether the State’s unchallenged comments or questions about a defendant’s right to remain silent have prejudiced that defendant.” (Citation and punctuation omitted.) Cheeks, 325 Ga.App. at 369.

These include whether the error was an isolated incident, or instead consisted of several questions or comments, and whether the error was inadvertent, rather than a deliberate attempt by the State to use the defendant’s silence against him. We also examine the “trial context” of the error, and take a particularly dim view of the State’s conduct in arguing during closing that evidence of the defendant’s silence should be viewed as evidence of his guilt. Finally, we analyze whether, in light of the evidence presented, there was a possibility that the State’s improper comments contributed to the guilty verdict. In other words, we examine whether the evidence of the defendant’s guilt was overwhelming or whether the evidence was conflicting.

(Citation omitted.) Shaburov v. State, 324 Ga. App. 743, 749 (2) (751 SE2d 540) (2013).

Here, the prosecutor’s clear intent was to persuade the jury to weigh Dumas’ post-arrest silence against him. She repeatedly questioned Dumas on this issue in cross-examination, even returning to the issue to ask again whether he told his story to police after the trial court had sustained his counsel’s objection to a similar question. Then in her closing argument, the prosecutor underscored Dumas’ failure to proclaim his innocence to police as proof of his guilt. Thus, under these circumstances, the State’s violation of Dumas’ constitutional right to remain silent was neither incidental nor inadvertent. See Scott, 305 Ga. App. at 717 (2) (a).

Moreover, the State’s evidence at trial, although sufficient to support his convictions, was not overwhelming. The victim waited approximately ten years to report the incidents involving Dumas, and there was no physical evidence of the crimes. The primary evidence was the victim’s description of events, supported by her family’s testimony as to changes in her behavior. Thus, the jury’s determination necessitated weighing the credibility of the victim’s testimony against Dumas’ credibility Although jurors ultimately chose to believe the victim’s testimony, there is a reasonable probability that an improper inference of guilt, raised by Dumas’ failure to tell police his side of the story, influenced this decision. See Scott, 305 Ga. App. at 718 (2) (a); Cheeks, 325 Ga. App. at 370; Moore, 318 Ga. App. at 124 (3).

Decided May 18, 2016.

Michael W. Tarleton, Jimmonique R. S. Rodgers, for appellant.

Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.

Accordingly, we find that Dumas has also established the second prong of the Strickland test, and he is entitled to a new trial.

2. In light of the foregoing, we need not address Dumas’ remaining arguments as to his ineffective assistance of counsel claim.

Judgment reversed.

Miller, P. J., and McFadden, J., concur.

        Jackson v. Virginia. 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       The State presented expert testimony at trial to show that it is more common than not for a victim of childhood sexual abuse to delay reporting the incidents to others.

       Although Dumas does not challenge the sufficiency of the evidence on appeal, we find that this and other evidence presented at trial was sufficient to allow the jury to find him guilty of rape and child molestation beyond a reasonable doubt. SeeOCGA § 16-6-1 (a) (2) (rape of female less than ten years old); OCGA § 16-6-4 (a) (1) (child molestation).

       Dumas does not assert the overruled objections as error on appeal.


author: Dillard, Judge.

text:
    A16A0086.
    THE STATE v. BLANCHARD.
    (786 SE2d 513)
   Dillard, Judge.

Wendy Blanchard was arrested for driving under the influence of alcohol less safe (“DUI”), driving with a suspended license, and an open-container violation. After her arrest, Blanchard moved to suppress statements that she made to the arresting officer, and following a hearing, the trial court granted the motion. In doing so, the court also found that the arresting officer lacked sufficient probable cause to arrest Blanchard for DUI. The State appeals, challenging the trial court’s finding that there was insufficient probable cause to support Blanchard’s arrest. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the trial court’s ruling, the evidence shows that on July 23, 2014, at approximately 3:00 p.m., Ethan Taffar, an officer with the Dawson County Sheriff’s Office, was driving his patrol car when he saw Blanchard’s vehicle, which was a few cars ahead of him, merge into the “gore area” of the highway. Taffar then pulled up behind her because it appeared that she was having car trouble, and he wanted to ask if she needed assistance. When Taffar asked her if everything was alright, Blanchard told him that she had run out of gas, and he offered to drive her to a nearby gas station. Once Blanchard was in his patrol car, Taffar asked to see her license, but Blanchard stated that she did not have it with her. Taffar then asked for her name and date of birth, and she gave him the name “Gloria Williams.” But when Taffar told Blanchard that he could not find that person in the relevant database, Blanchard promptly provided her real name and date of birth, explaining that she initially thought that he wanted to know the name of the person who owned the car. Taffar then ran a check on Blanchard and discovered that she had a suspended license. As a result, he exited the vehicle, went around the car to Blanchard’s door, and arrested her for driving with a suspended license.

Next, Taffar made arrangements for Blanchard’s vehicle to be towed before transporting her to a detention center. During the transport, Taffar asked Blanchard if she had any contraband in her purse. Blanchard said no at first, but then admitted that she had a large plastic cup in her purse with a mixture of vodka and Kool-Aid. When Taffar asked Blanchard how much alcohol she had consumed that day, she responded that “she had a few before she left her house and then she was mixing [a drink] while she was going down the road to drink when she got home.”

After they arrived at the detention center, Taffar read Blanchard her Miranda rights. And it was at this point that Taffar first noticed Blanchard’s “eyes were bloodshot and watery and that there was a slight odor of an alcoholic beverage coming from her person . . . Taffar continued questioning Blanchard about her alcohol consumption that day, and she indicated that she had “one and a half” drinks before she left her house that morning. Blanchard also took a preliminary breath test, which was positive for alcohol.

Thereafter, Blanchard was charged, via accusation, with DUI, driving with a suspended license, and having an open container of alcohol in her vehicle. In May 2015, Blanchard filed a motion to suppress all statements that she made to Taffar, arguing, inter alia, that she was unlawfully interrogated before being advised of her Miranda rights, and that her “warrantless stop, detention, search and interrogation” by law enforcement violated the Fourth Amendment of the United States Constitution. Following an evidentiary hearing, the trial court granted Blanchard’s motion, finding that any statements she made after being detained, but before she was Miran-dized, were inadmissible. The court also found that, although Taffar acted appropriately given his level of training, he lacked probable cause to arrest Blanchard for DUI because there was no evidence that her driving ability was impaired by alcohol consumption. This appeal by the State follows.

In its sole enumeration of error, the State argues that the trial court erred in finding that there was insufficient probable cause to support Blanchard’s arrest for DUI. We disagree.

To begin with, we note that in reviewing a trial court’s decision on a motion to suppress, we construe the evidence “most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility of the witnesses are adopted unless they are clearly erroneous.” Further, because the trial court sits as the trier of fact, its findings are “analogous to a jury verdict and will not be disturbed if any evidence supports them.” That said, we owe no deference to the “way in which the court below resolved questions of law.” With these guiding principles in mind, we turn now to the State’s contention that there was sufficient probable cause to support Blanchard’s DUI arrest.

In Georgia, probable cause exists for an arrest when “the objective facts known to the officer establish a probability that the suspect has been engaged in illegal activity.” And a “probability” is less than a certainty, but “more than a mere suspicion or possibility.” Accordingly, to arrest a suspect for DUI less safe to drive, an officer must have “knowledge or reasonably trustworthy information that a suspect was actually in physical control of a moving vehicle, while under the influence of alcohol to a degree which renders [her] incapable of driving safely. Mere presence of alcohol is not the issue.” Further, as we have recently explained, “the mere fact that a suspect admits to having consumed alcohol before driving does not provide the probable cause necessary to support an arrest for DUI.” Indeed, impaired driving ability depends solely upon “an individual’s response to alcohol[,] [and] [b]ecause individual responses to alcohol vary, the presence of alcohol, in a defendant’s body, by itself, does not support an inference that the defendant was an impaired driver.”

In arguing that there was sufficient probable cause for Taffar to reasonably believe that Blanchard was an impaired driver, the State references the following evidence:

Blanchard smelled of alcohol, had bloodshot, watery eyes, admitted to drinking before driving, admitted to mixing a drink while driving, had an open container of alcohol in her vehicle, demonstrated slight confusion, held on to the patrol vehicle door as she exited, and tested positive on the [preliminary breath] test.

But regardless of whether this evidence, if believed by the trial court, could be adequate to provide probable cause for Blanchard’s DUI arrest, the law does not require a trial judge to “believe the testimony of a witness or to find probable cause automatically whenever certain words are spoken.”

And here, the trial court summarized its factual findings as follows:

[Blanchard] admitted that she had consumed alcohol the night before and “earlier that morning.” It was at that point that... Taffar first noted a “slight odor” of an alcoholic beverage. No odor was detected during the initial encounter nor during their discussion in the patrol vehicle on the way to the detention center... .Taffar also stated that [Blanchard] had slightly bloodshot and watery eyes but admitted on cross [-] examination that she hadbeen crying and the appearance of her eyes [was] consistent with that emotion. Finally,... Taffar asked [Blanchard] to submit to a preliminary breath test (PBT). [Blanchard] took the test and it registered positive for alcohol. No field sobriety evaluations were conducted. The only evidence on the record to support [Blanchard’s] arrest for DUI is [her] admission, a slight odor, and a positive result on the PBT.
This Court finds that . . . Taffar acted appropriately; however, at the time he was not field sobriety trained and lacked the necessary training to conduct a thorough investigation^] Based on the manifestations noted above, there was no evidence offered to prove that [Blanchard’s] ability to drive was impaired due to alcohol consumption .... No other manifestations existed that would lead to the belief that [Blanchard] was impaired.

As detailed below, these findings were supported by the evidence.

At the suppression hearing, Taffar testified that, during his interactions with Blanchard, she “walked properly” without stumbling, merged into the “gore area” at a safe speed, exhibited no “erratic or less safe driving behavior,” exhibited no major or minor motor skill issues, and was polite and responsive to his questions. In fact, there was nothing in Blanchard’s behavior that led Taffar “to believe that she was impaired in any way” Moreover, it was undisputed that Taffar first approached Blanchard to assist her with car trouble, not because he had seen her driving in a manner that would suggest she was impaired. Further, the video of Blanchard’s transport to the detention center confirms that she answered all of Taffar’s questions promptly and clearly. And while Taffar testified that Blanchard’s eyes were bloodshot and watery, and that he was able to smell the “slight” odor of alcohol emanating from her, he nevertheless confirmed that he did not make these observations upon first encountering Blanchard or when they were in a confined space together in the patrol car with the safety panel to the back seat open. In fact, Taffar did not observe that Blanchard’s eyes were bloodshot or smell any odor of an alcoholic beverage on her until after they arrived at the detention center, which was nearly 45 minutes after he first encountered her.

The State argues that Taffar’s testimony that Blanchard’s eyes were bloodshot and watery, that he smelled the odor of alcohol, and that Blanchard admitted to drinking alcohol before driving, is sufficient to provide probable cause for her arrest, and it cites several cases in which we held that there was sufficient probable cause for a DUI arrest under similar circumstances. But this argument ignores the crucial role that the trial court plays as factfinder, as well as our obligation as an appellate court to uphold a trial court’s findings if there is any evidence to support them. And while the State is indeed correct that “[w]e have previously found that bloodshot and watery eyes, as opposed to the mere presence of alcohol, can support a finding of impairment,” we have also explained that “such evidence does not require a finding of impairment.” And here, although there was evidence that Blanchard had bloodshot and watery eyes, there was no evidence that her eyes were glassy or unfocused. Moreover, the trial court, as the factfinder, attributed the bloodshot appearance of Blanchard’s eyes to the fact that she had been crying and did not consider it as evidence of impairment.

In sum, discounting the testimony regarding Blanchard’s bloodshot and watery eyes as the trial court did, the remaining evidence presented to establish probable cause for Blanchard’s DUI arrest was that she admitted to having one and a half alcoholic beverages the morning before her 3:00 p.m. arrest, she smelled slightly of an alcoholic beverage, her preliminary breath test was positive for alcohol, and she had an open container of alcohol in her purse. However, Blanchard exhibited no physical signs of impairment such as erratic driving, slurred speech, or stumbling. The foregoing evidence, then, supports the trial court’s finding that, while there was evidence that Blanchard consumed alcohol before driving, there was no evidence that her driving ability was impaired due to such consumption. And because the mere presence of alcohol is insufficient probable cause for a DUI arrest, the trial court was authorized to find that there was no probable cause to support Blanchard’s arrest for that charge.

Decided May 18, 2016.

Lee Darragh, District Attorney, Jennifer E. Geller, Assistant District Attorney, for appellant.

Philip P. Pilgrim, Jr., for appellee.

For all of the foregoing reasons, we affirm the trial court’s finding that Blanchard’s DUI arrest was unsupported by probable cause, as well as its consequent grant of her motion to suppress evidence garnered as a result of that arrest.

Judgment affirmed.

Phipps, P. J., and Peterson, J., concur.

        See OCGA § 5-7-1 (a) (4).

        See, e.g., Christian v. State, 329 Ga. App. 244, 245 (1) (764 SE2d 573) (2014).

        See Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

       As noted by the State, Taffar initially testified that, after Blanchard was advised of her Miranda rights, she admitted to having “two drinks” before she left her house, without specifying the time period in which she had consumed those drinks. However, on cross-examination, Taffar specified that Blanchard reported having one and a half drinks in the morning, which he conceded would have been at least three hours before he encountered her at approximately 3:00 p.m. To the extent that Taffar gave conflicting testimony regarding Blanchard’s alcohol consumption, we reiterate that we must view his testimony in the light most favorable to the trial court’s ruling. See, e.g., Christian, 329 Ga. App. at 245 (1). And regardless, the video recording of Taffar’s conversation with Blanchard confirms that, although she first reported having a “couple” of drinks the evening before and on the morning of her arrest, she immediately clarified that she had one and a half drinks in the morning. We further note that, although Blanchard also reported having a “few” drinks on the day of her arrest, the trial court suppressed that statement because it was made in the patrol car before she was Mirandized, and the State does not challenge that ruling on appeal.

         See U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”); see also Ga. Const. art. 1, § 1, ¶ XIII (“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause supported by oath or affirmation particularly describing the place or places to be searched and the person or things to be seized.”).

        See OCGA § 5-7-1 (a) (4) (authorizing the State, in criminal cases, to appeal “[f]rom an order, decision, or judgment suppressing or excluding evidence illegally seized or excluding the results of any test for alcohol or drugs in the case of motions made and ruled upon prior to the impaneling of a jury or the defendant being put in jeopardy, whichever occurs first”).

        Ewumi v. State, 315 Ga. App. 656, 657 (1) (727 SE2d 257) (2012) (punctuation omitted).

        Id. at 657-58 (1) (punctuation omitted).

        Id. at 658 (1) (punctuation omitted).

        Bostic v. State, 332 Ga.App. 604, 606 (774 SE2d 175) (2015); see also Minor v. State, 298 Ga. App. 391, 396 (1) (b) (680 SE2d 459) (2009) (“Probable cause to arrest exists [when], based on objective facts and circumstances, a man of reasonable caution would believe that a crime has been or is being committed.” (punctuation omitted)).

        Bostic, 332 Ga. App. at 606 (punctuation omitted); accord Frederick v. State, 270 Ga. App. 397, 398 (606 SE2d 615) (2004).

        Bostic, 332 Ga. App. at 606-07 (punctuation omitted) (emphasis in original); accord Handley v. State, 294 Ga. App. 236, 237 (668 SE2d 855) (2008); State v. Sanders, 274 Ga. App. 393, 396 (617 SE2d 633) (2005).

        Bostic, 332 Ga. App. at 607; see also Handley, 294 Ga. App. at 237 (“Evidence which shows only that a defendant had alcohol in her body while driving provides insufficient probable cause to arrest for DUI.” (punctuation omitted)); State v. Ellison, 271 Ga.App. 898, 901 (3) (b), 904 (6) (611 SE2d 129) (2005) (affirming the trial court’s finding that there was insufficient probable cause for a DUI arrest even when the defendant admitted that she had been drinking alcohol, and reiterating that “evidence which shows only that the defendant had alcohol in her body while driving provides insufficient probable cause to arrest for DUI” (emphasis in original)).

        Bostic, 332 Ga. App. at 607; accord Handley, 294 Ga. App. at 237-38; Ellison, 271 Ga. App. at 902 (3) (b).

        Ellison, 271 Ga. App. at 901 (3) (a); accord Sanders, 274 Ga. App. at 397; see also State v. Young, 334 Ga. App. 161, 163 (778 SE2d 402) (2015) (“[A] trial court is not obligated to believe a witness even if that witness’s testimony is uncontradicted and may accept or reject any portion of the testimony.” (punctuation omitted)).

       Although Taffar was trained in field-sobriety tests at the time of the suppression hearing, he had not yet received such training when he arrested Blanchard. As a result, no field-sobriety tests were performed in this case.

        See Ewumi, 315 Ga. App. at 657-58 (1); Sanders, 274 Ga. App. at 397-98 (noting that “[i]f the members of this Court had been sitting as the trier of fact, we might well have found that the officers had probable cause to arrest based on several indicia of impairment,” but affirming the trial court’s finding that there was insufficient probable cause to support a DUI arrest).

        Ellison, 271 Ga. App. at 904 (6); see, e.g., Temples v. State, 228 Ga. App. 228, 231 (491 SE2d 444) (1997) (holding that there was sufficient probable cause for the defendant’s DUI arrest when the evidence showed that the officer smelled the odor of alcohol on the defendant’s breath, the defendant’s eyes were bloodshot and watery, and his breath test was positive for alcohol).

        Ellison, 271 Ga. App. at 904(6); see also Bostic, 332 Ga. App. at 607-08 (holding that there was insufficient probable cause for a DUI arrest when, inter alia, there was testimony that the defendant’s eyes were bloodshot and watery); State v. Damato, 302 Ga. App. 181, 183 (1) (690 SE2d 478) (2010) (“[WJhile bloodshot eyes and slightly paled skin may support a finding of impairment, such evidence does not require a finding of impairment.” (punctuation omitted) (emphasis omitted)).

        See Bostic, 332 Ga.App. at 607-08 (holding that there was insufficient probable cause for a DUI arrest when, inter alia, although the defendant’s eyes were “bloodshot and watery, there [was] no evidence that [her] eyes were glassy or unfocused”).

        See Bostic, 332 Ga.App. at 607-08 (holding that there was insufficient probable cause to arrest the defendant for DUI when the only evidence of a potential impairment was the defendant’s admission that he had consumed a beer earlier that evening, the bloodshot appearance of his eyes, and a breath test showing the presence of alcohol); Damato, 302 Ga. App. at 182-83 (1) (holding that the “odor of alcohol on [the defendant’s] breath, her admission that she had a few drinks earlier in the evening, and a positive result on [a breath] test do not provide probable cause to arrest her for DUI”); Handley, 294 Ga. App. at 238 (holding that there was insufficient probable cause for a DUI arrest when the only evidence offered was that the arresting officer smelled alcohol on the driver’s breath, a breath test revealed the presence of alcohol, and the defendant admitted to drinking alcohol “earlier in the day”); Ojemuyiwa v. State, 285 Ga. App. 617, 620 (2) (647 SE2d 598) (2007) (holding that, although two officers detected “a strong odor of alcohol” coming from the defendant’s person, that fact did not support an arrest for DUI when “there was no evidence presented whatsoever as to [the defendant’s] manner of driving, that her speech was slurred, her gait unsteady, or her eyes red and glassy”); Sanders, 274 Ga. App. at 394-98 (affirming the trial court’s finding that there was insufficient probable cause for a DUI arrest even when there was testimony that, inter alia, the defendant had glassy eyes and admitted that he had been drinking, and deferring to the trial court’s finding that there was no evidence that the defendant was a less-safe driver). Cf. Sultan v. State, 289 Ga. App. 405, 409 (2) (657 SE2d 311) (2008) (holding that the trial court was authorized to conclude that probable cause supported an arrest for DUI when evidence showed that the officer detected the odor of alcohol coming from the defendant’s vehicle, the defendant admitted to having consumed alcohol, her breath tested positive for the presence of alcohol, her speech was slurred and her eyes were red and watery, and she failed the one-leg stand field sobriety test).


text:
    A16A0128.
    KOGEL v. KOGEL.
    (786 SE2d 518)
   Dillard, Judge.

Briona Danielle Kogel appeals from the trial court’s denial of her motion to vacate a temporary order that granted custody of her minor child to the child’s father, Christofor Kogel, after Christofor filed for divorce from Briona. Briona argues on appeal that the trial court lacked subject-matter jurisdiction to enter an order of child custody under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). Because we agree that the trial court lacked subject-matter jurisdiction to make a child-custody determination, we reverse the trial court’s denial of Briona’s motion to vacate.

The record reflects that Briona and Christofor were married in Texas on December 24, 2011. Briona then gave birth to their child, X. K., in Texas on June 25, 2012. In March 2013, approximately nine months after X. K. was born, Briona, Christofor, Christofor’s mother, andX. K. moved to Wyoming. Then, in January 2014, the family again relocated—this time to Georgia. But in April 2014, Briona returned to Texas with X. K. under the auspices of visiting a sick relative. Then, when Briona did not return to Georgia, Christofor filed for divorce in the Superior Court of Murray County in July 2014, seeking temporary and permanent physical custody of X. K.

On August 21, 2014, the trial court conducted a hearing in Christofor’s action. At that point, Briona had not filed an answer, and she did not appear at the hearing. And at the hearing’s conclusion, the trial court awarded temporary custody of X. K. to Christofor, finding that Briona was making a “temporary sojourn” to Texas because she had indicated to Christofor that she would return to Georgia.

Briona filed an answer and counterclaim on November 11, 2014, and then filed a motion to vacate the trial court’s temporary order on April 13, 2015. Briona argued that the court should vacate its earlier temporary order because it lacked subject-matter jurisdiction to make an initial child-custody determination under the UCCJEA when Georgia was not X. K.’s home state. The trial court conducted a hearing on Briona’s motion on June 5, 2015, at which it heard testimony from Briona, Christofor, and Christofor’s mother.

Christofor testified that when Briona and X. K. left for Texas in April 2014, Briona told him that she would return in “a few days.” But then four to five days later, Briona called Christofor to say that she had no intention of ever returning to Georgia and that, “You’ll be lucky if you ever see me and [X. K.] again. I’m not coming back.” And indeed, Briona and X. K. never returned to Georgia, although Chris-tofor testified that Briona thereafter “lead [sic] on that she was” going to return to Georgia, told him that she loved him, and said that she was waiting for her car to be repaired in order to return. However, Christofor also testified that Briona at other times told him she would not be returning to Georgia, that she would become upset with him over the phone, and that she would ask that he stop contacting her. And as to the excuse of awaiting repairs to her vehicle, Christofor further testified that Briona continued over a number of months to cite additional repairs that had yet to be completed.

As for Briona, she testified that when she left Georgia in April 2014, she did so to escape a physically abusive relationship with Christofor. Thus, when Briona left in April 2014, she did so with no intention to return, but she testified that she initially told Christofor otherwise out of fear for her safety and that of her child. And although Briona eventually told Christofor that she was never returning to Georgia, she later led him to believe that she would eventually return to the state out of continued fear for her life because Christofor knew where to find her in Texas. In short, the only reason Briona told Christofor that she would return to Georgia and that she loved him was because she was fearful of him. Briona further testified that X. K. had a doctor in Texas, attended church in Texas, had relatives that he regularly visited in Texas, received public benefits in Texas, and that she maintained employment in Texas.

At one point during Briona’s testimony, the trial court opined that Briona had “established that she was leading [Christofor] on to make him think she was returning to Murray County when she wasn’t.” But in both the trial court’s oral and written ruling denying Briona’s motion, the court

[found] that according to the testimony [Briona] led [Chris-tofor] to believe that she was returning to Georgia; that her trip to Texas was temporary as found in the Temporary Order. Now, she would maintain that she was lying, and she would tell the [c]ourt that those statements should not be considered. The [c]ourt finds that all of [Briona’s] actions, misrepresentations of her intent and contempt of court appear to be self serving and contrary to the best interest of the child and justice.

The trial court also took issue with the timeliness of Briona’s challenge to its subject-matter jurisdiction, noting that “[o]ther than the Defendant’s attorney’s statements that her failure to act to promptly prosecute the issue of the [c]ourt’s jurisdiction was because of financial need, the [c]ourt has not received any credible evidence of such facts.” The court then denied Briona’s motion to vacate the temporary order of child custody and held her in contempt of that order. This appeal follows.

At the outset, we note that—as we have previously stated and as required by the Act itself—in applying and construing the provisions of the UCCJEAas codified in Georgia, we must consider “the need to promote uniformity of the law with respect to its subject matter among states that enact it.” In accordance with this mandate, and given the relative dearth of Georgia law on this subject, we will look to the cases of other jurisdictions when appropriate to resolve the issues presented in this case. With these guiding principles in mind, we turn now to Briona’s contention that the trial court erred by denying her motion to vacate its earlier child-custody order when it lacked subject-matter jurisdiction to make an initial child-custody determination—a question we review de novo.

First, as to the issue of the timeliness of Briona’s challenge to the trial court’s subject-matter jurisdiction, it is well established that a “court’s lack of subject-matter jurisdiction cannot be waived and may be raised at any time either in the trial court, in a collateral attack on a judgment, or in an appeal.” Indeed, the Supreme Court of the United States has recognized that, although “our legal system is replete with rules requiring that certain matters be raised at particular times,” objections to subject-matter jurisdiction “may be raised at any time,” even if the party “previously acknowledged the trial court’s jurisdiction.” Therefore, a party, after losing at trial, may “move to dismiss the case because the trial court lacked subject-matter jurisdiction,” and “if the trial court lackedjurisdiction, many months of work on the part of the attorneys and the court may be wasted.” Thus, to the extent the trial court took issue with the “timeliness” of Briona’s challenge to its subject-matter jurisdiction and in any way held that against her in ruling upon her motion to vacate, it erred in doing so.

Second, as to the question of whether the trial court had subject-matter jurisdiction to make an initial child-custody determination in the temporary order, Georgia’s codification of the UCCJEA provides that a court has jurisdiction to make such a determination if Georgia

is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state[.]

Elsewhere in the Code, “home state” is defined as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.” And the definition further provides that “[a] period of temporary absence of any of the mentioned persons is part of the [six-month] period.” However, the UCCJEA does not define what constitutes a “temporary absence.” Thus, the issue in this case is whether Georgia is X. K.’s “home state” for purposes of exercising UCCJEA jurisdiction when X. K. moved to the state with his family in January 2014, returned to Texas with his mother in April 2014, and never returned to Georgia, although Briona at times represented to Christofor that she would eventually return to Georgia with the child.

It is clear from the trial court’s ruling and statements on the record that it concluded Briona had no intention of returning to Georgia. Nevertheless, the court held Briona’s “misrepresentations of her intent” against her because it deemed them “self serving,” and the court ultimately denied her motion to vacate the temporary order. But the court erred in denying the motion to vacate because it lacked subject-matter jurisdiction to make the initial child-custody determination in the temporary order. Indeed, the record does not establish that Briona’s time in Texas was a “temporary sojourn” as the court initially found and, therefore, Georgia could not qualify as X. K.’s home state under the UCCJEA.

As set forth more fully supra, although Christofor testified that he was “led to believe” that Briona would eventually return to Georgia, he also testified that Briona told him only a few days after she left that he would ‘Tie lucky” if he ever saw her and X. K. again and that she was, in no uncertain terms, “not coming back”; that she told him more than once that she did not intend to return (even as late as June 2014); and that she repeatedly made new excuses about the repair condition of her vehicle, supposedly delaying her ability to return. Additionally, Briona maintained employment in Texas, and X. K. had been born in and previously lived in Texas, had extended family with whom he frequently visited in Texas, attended church in Texas, had a regular doctor in Texas, and received public benefits in Texas. This was in contrast to Georgia, where X. K. never attended church; the extent of his medical treatment was limited to an emergency room visit for severe diaper rash; and his only other familial connection was a distant cousin who lived in Atlanta and with whom the family had not visited since relocating to Georgia for no other reason than to make a “fresh start.” Finally, Briona testified that she had never intended to return to Georgia, that she left in order to flee an abusive relationship with Christofor, and that she at times told Christofor that her intentions were otherwise out of fear for her and X. K.’s safety

Thus, looking at the totality of the circumstances, the record reflects that X. K.’s time in Texas was not a temporary absence from Georgia. It follows, then, that Georgia was not X. K.’s home state because X. K. had not lived in Georgia for at least six months immediately before commencement of the child-custody proceeding. Additionally, at the time of the custody determination, even if X. K. had no “home state,” Georgia still lacked jurisdiction to make an initial child-custody determination when neither of X. K.’s parents had “a significant connection with this state other than mere physical presence” and Georgia did not contain “[substantial evidence . . . concerning [X. K.’s] care, protection, training, and personal relationships.”

Decided May 18, 2016.

McCamy, Phillips, Tuggle & Fordham, Curtis A. Kleem, for appellant.

Richard L. Yancey, for appellee.

Accordingly, the trial court erred in denying Briona’s motion to vacate the temporary custody order when the court never had subject-matter jurisdiction to make an initial child-custody determination. And for all of the foregoing reasons, we reverse the trial court’s denial of Briona’s motion to vacate the temporary order of custody.

Judgment reversed.

Phipps, P. J., and Peterson, J., concur.

       Christofor’s mother also testified that she received text messages from Briona indicating that she would eventually return to Georgia.

       Christofor denied ever physically abusing Briona.

       Briona filed an application for an interlocutory appeal, which this Court granted because she was entitled to a direct appeal. See OCGA § 5-6-34 (a) (11) (“Appeals may be taken to the Supreme Court and the Court of Appeals from the following judgments and rulings of the superior courts, the constitutional city courts, and such other courts or tribunals from which appeals are authorized by the Constitution and laws of this state: . . . All judgments or orders in child custody cases awarding, refusing to change, or modifying child custody or holding or declining to hold persons in contempt of such child custody judgment or orders [.] ”).

       Georgia adopted the UCCJEA in 2001 and replaced its prior child-custody act (the Uniform Child Custody Jurisdiction Act), because, in application, “imprecision in the prior act’s language often allowed for the existence of concurrent jurisdiction over custody matters in multiple states, thereby fostering competition among jurisdictions and forum shopping by the parties.” Bellew v. Larese, 288 Ga. 495, 496 (706 SE2d 78) (2011) (punctuation omitted); accord Croft v. Croft, 298 Ga. App. 303, 305 (1) (680 SE2d 150) (2009).

       OCGA § 19-9-101; accord Delgado v. Combs, 314 Ga. App. 419, 425 (724 SE2d 436) (2012).

        See Delgado, 314 Ga. App. at 425 (looking to cases in other jurisdictions to resolve jurisdictional question under provisions of UCCJEA).

        See id. at 425 (1) (noting that whether a trial court lacked subject-matter jurisdiction is “an issue of law that we review de novo for plain legal error” (punctuation omitted)); MacBeth v. State, 304 Ga. App. 466, 466 (696 SE2d 435) (2010) (same).

        Abushmais v. Erby, 282 Ga. 619, 622 (3) (652 SE2d 549) (2007) (emphasis supplied) (punctuation omitted); see Jackson v. Gamble, 232 Ga. 149, 152 (1) (205 SE2d 256) (1974) (“Waiver or consent of the parties cannot confer on a court jurisdiction of a subject matter wherein it has none at law.” (punctuation omitted)).

        Henderson v. Shinseki, 562 U. S. 428, 434 (II) (131 SCt 1197, 179 LE2d 159) (2011).

        Id.

        Id. at 435 (II).

        Id. at 434-35 (II).

        Id. at 435 (II).

       OCGA § 19-9-61 (a) (1).

       OCGA § 19-9-41 (7) (emphasis supplied). We note that in cases with a child who is less than six months old, “the term means the state in which the child lived from birth with any of the persons mentioned.” Id.

       OCGA § 19-9-41 (7).

       We note that Christofor did not argue, and the trial court did not explicitly find, that Briona had wrongfully removed X. K. from Georgia or otherwise engaged in unjustifiable conduct.

        See, e.g., In re A. W., 94 A3d 1161, 1167-68 (¶ 21) (Vt. 2014) (“[C]ourts addressing the question of‘temporary absence’ have noted that the term is not defined under the UCCJAor its successor the UCCJEA, and many, therefore, have adopted a ‘totality of the circumstances’ test, looking to whether all of the facts as found by the trial court, including the parent’s purpose in removing the child from one state to another and the duration of the absence, support a conclusion that a child’s absence was temporary.”); In re S. M., 938 SW2d 910, 918 (Mo. Ct. App. 1997) (holding that, in “resolving the temporary absence issue, the totality of the circumstances test is best”); Chick v. Chick, 596 SE2d 303, 308-09 (I) (N.C. Ct. App. 2004) (adopting totality-of-the-circumstances test to determine whether absence from state was temporary under UCCJEA). See generally Andrea Charlow, There’s No Place Like Home: Temporary Absences in the UCCJEA Home State, 28 J. Am. Acad. Matrim. Law. 25, 34-35 (II) (B) (3) (2015) (noting that “the ‘totality of the circumstances’ test is commonly used to determine if an absence is temporary,” and that courts will consider the following: intent, duration, nature and purpose of presence outside of state, applications for driver’s licenses and public benefits, paying taxes, home ownership or leasing, school registration, presence as related to the receipt of medical care, and presence for parental educational or job opportunities).

        Cf. Slay v. Calhoun, 332 Ga. App. 335, 341 (2) (772 SE2d 425) (2015) (physicalprecedent only) (“There was evidence at the final hearing that [the mother] frequently was unable to care for [the child] and called [the father] or his mother to come pick up the child. Thus, the trial court was authorized to find that in the six months before [the father] filed the Petition, [the child] spent more time with [the father] in Georgia than with [the mother] in Florida. The evidence showed that [the child] received almost all of her medical care in Georgia. Under the circumstances, the trial court could have concluded that even though [the mother] moved to or resided in Florida, [the child] continued to live with [the father], a person acting as [the childj’s parent; [the childj’s absences to stay with her mother, who was unable to care for [the child] consistently, were temporary; and, accordingly, Georgia was [the childj’s home state for purposes of the UCCJEA.”).

        See OCGA § 19-9-41 (7) (defining “home state” as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding” (emphasis supplied)).

        See OCGA § 19-9-61 (a) (2) (“Except as otherwise provided in Code Section 19-9-64, a court of this state has jurisdiction to make an initial child custody determination only if: ... A court of another state does not have jurisdiction under paragraph (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Code Section 19-9-67 or 19-9-68 and: (A) The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and (B) Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships [.] ”).


author: BARNES, Presiding Judge.

text:
    A16A0264.
    HOPKINS v. THE STATE.
    (786 SE2d 543)
   BARNES, Presiding Judge.

Following his convictions for DUI (less safe alcohol), obstruction of a police officer, interference with government property, failure to stop at a stop sign, failure to register automobile, and one count of simple assault, Arkeem Hopkins appeals. Hopkins contends that the trial court erred in denying his motion for mistrial based on an improper closing argument. We disagree and affirm the conviction.

On appeal, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. Hyman v. State, 222 Ga. App. 419, 421 (1) (474 SE2d 243) (1996). So viewed, the evidence shows that a police officer stopped Hopkins after she “saw the vehicle blow through the stop sign.” When she approached Hopkins’ vehicle, the officer smelled alcohol coming from his breath and the vehicle, and she noticed his eyes appeared red and glassy. The officer noticed that the registration and insurance did not appear under Hopkins’ name and asked him to get out of the vehicle. When he exited the vehicle, Hopkins seemed unsteady and disheveled and told the officer he had four drinks that evening, but could not recall the time of his last drink. Hopkins initially agreed to perform a preliminary breath test but then said that it was “too hot to breathe.” Hopkins refused any other field sobriety tests. Based on her observations, training, and experience, the officer concluded that Hopkins was a less safe driver because of alcohol impairment and read Hopkins the implied consent warning. As the officer attempted to place him in handcuffs, Hopkins attempted to evade arrest but was eventually taken into custody and later indicted on the above charges.

At trial during the State’s closing, Hopkins objected and moved for a mistrial, arguing that the State made an improper statement when, referring to the traffic stop, the prosecutor said that it “was a dangerous situation. What if he had a gun?” The trial court sustained the objection but denied the motion for a mistrial. The trial court gave the jury curative instructions, telling them “what the attorneys say in closing arguments is not evidence. There was no evidence of gun or anything and you shouldn’t use insinuations or anything like that in arriving at your verdict.” The jury found Hopkins guilty, and he now appeals.

Hopkins contends the trial court erred when it denied his motion for mistrial based on an improper closing argument. “The granting or refusal to grant a mistrial has long been held to be largely in the discretion of the trial judge, but a mistrial should be granted when it is essential to preserve the right of fair trial.” Woods v. State, 233 Ga. 495, 498 (II) (212 SE2d 322) (1975).

Here, the trial court sustained Hopkins’ objection to the remark and instructed the jury to disregard the State’s statement about the gun and reminded them only to consider the evidence and law as charged, curing any unfairness created by the State’s argument. “It is for the trial court to determine whether the granting of a mistrial is the only corrective measure or whether any prejudice can be corrected by withdrawing the testimony from the jury’s consideration under proper instruction from the court.” (Citation and punctuation omitted.) Banks v. State, 281 Ga. 678, 682 (3) (642 SE2d 679) (2007). Assuming without deciding that the statement at issue was improper, we conclude that the trial court’s curative instructions adequately preserved Hopkins’ right to a fair trial, and the trial court did not abuse its discretion in denying a mistrial. See Davis v. State, 285 Ga. 343, 344 (2) (676 SE2d 215) (2009) (“[A]ny purported harm was cured when the trial court instructed the jurors that they could only consider the evidence and law as charged.”).

Decided May 18, 2016.

Brown Barnwell, Chauncey N. Barnwell, for appellant.

Meg E. Heap, District Attorney, Brian M. Casey, Assistant District Attorney, for appellee.

Accordingly, we affirm the conviction.

Judgment affirmed.

Boggs and Rickman, JJ., concur.


author: DOYLE, Chief Judge.

text:
    A16A0270.
    HUGHEY v. THE STATE.
    (786 SE2d 523)
   DOYLE, Chief Judge.

Michael Hughey was convicted of criminal attempt to commit malice murder, aggravated assault on a police officer, possession of a firearm during the commission of a felony (two counts), and possession of a firearm by a convicted felon. Following the denial of his motion for new trial, Hughey appeals, contending that (1) his trial counsel was ineffective for failing to object to the trial court’s jury charge on implied malice, and (2) absent the erroneous jury instruction, the evidence was insufficient to support the guilty verdict. Discerning no error, we affirm.

Construed in favor of the verdict, the record shows that in August 2011, a DeKalb County police officer executed a traffic stop of a vehicle because it lacked working taillights. The officer approached the vehicle and requested identification from the driver and passenger. Hughey, the passenger, explained that he did not have identification but gave the officer his name and date of birth. The officer requested that the two occupants remain in the vehicle while he returned to his police cruiser to check for open warrants. During this process, Hughey kept opening his door and getting out of the car, against the officer’s repeated requests that he remain inside his vehicle. Finally, as the officer received information that Hughey had an open warrant for his arrest, Hughey exited the vehicle, looked at the driver, looked at the officer, said, “Hey, I got to do it man,” and took off running across the road. The officer pursued and drew his taser. As the officer closed the distance during the chase, Hughey stopped, turned, and pointed a nine-millimeter handgun at the officer. The officer stopped less than three feet from Hughey, who told the officer, “You better back your ass up.” As the officer dropped the taser and reached for his service weapon, Hughey shot the officer, hitting him in the side of his chest in a gap in his protective vest. The officer returned fire, shooting two or three rounds, and Hughey again fled as the officer walked back to his police car to summon help. The officer later made a full recovery.

An eyewitness was able to identify Hughey in a photo lineup, and Hughey was later located and arrested. Shell casings from the scene were analyzed and matched to a nine-millimeter handgun found in Hughey’s hotel room at the time he was arrested.

Hughey was charged with attempted malice murder, aggravated assault on a police officer, possession of a firearm during the commission of a felony and an attempted felony, and possession of a firearm by a convicted felon. Following a trial, a jury found Hughey guilty of each count, and the trial court sentenced him to serve a total of 85 years in prison. On his motion for new trial, Hughey’s total sentence was reduced to 50 years when the trial court merged the sentences for aggravated assault into attempted murder and one count of possession of a firearm into the other. The trial court otherwise denied Hughey’s motion, giving rise to this appeal.

1. Hughey contends that he received ineffective assistance of counsel because his trial counsel failed to object to the jury instruction on criminal attempt to commit murder. We discern no error.

To establish that his trial counsel was constitutionally ineffective, [Hughey] was required to prove both deficient performance by counsel and resulting prejudice. To prove deficient performance, Appellant had to demonstrate that counsel performed his duties in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. Because judicial scrutiny of counsel’s performance must be highly deferential, the law recognizes a strong presumption that counsel performed reasonably, and the defendant bears the burden of overcoming this presumption. To carry this burden, Appellant must show that no reasonable lawyer would have done what his counsel did, or failed to do what his counsel did not do. . . .
Even if a defendant can prove that his counsel’s performance was deficient, he must also prove prejudice by showing a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. It is not enough to show that the errors had some conceivable effect on the outcome of the proceeding. Rather, the defendant must demonstrate a reasonable probability of a different result, which ... is a probability sufficient to undermine confidence in the outcome.

Here, Hughey urges that his counsel should have objected to the trial court’s charge on attempted murder. The trial court used the pattern jury charge for criminal attempt and malice murder, instructing the jury as follows:

A person commits criminal attempt to commit murder when, with intent to commit murder, that person performs any act that constitutes a substantial step towards the commission of the crime of murder.
A person commits murder when that person unlawfully and with malice aforethought, either express or implied, causes the death of another human being. . . .
Express malice is that deliberate intention unlawfully to take away the life of another human being, which is shown by external circumstances capable of proof.
Malice may, but need not, be implied when no considerable provocation appears and when all of the circumstances of the killing show an abandoned and malignant heart.
It is for the jury to decide whether or not the facts and circumstances of this case show malice.
To constitute murder, the homicide must have been committed with malice.
Legal malice is not necessarily ill will or hatred but is the unlawful intention to kill without justification, excuse, or mitigation.
If a killing is done with malice, no matter how short a time the malicious intent may have existed, such killing constitutes murder.

Hughey argues that the portion of the charge focusing on malice, stating that it may be express or implied, allowed the jury to convict him absent a finding of a specific intent to kill the officer. He urges that this relieved the State of its burden to prove intent as alleged in the indictment, which accused Hughey of “knowingly and intentionally attempting] to commit the crime of MURDER, in violation of Code section 16-5-1. . .

This argument fails. The indictment did not list any particular form of intent; rather, it simply accused him of attempting to commit murder as defined in OCGA § 16-5-1. That Code section defines malice murder as occurring when a person “with malice aforethought, either express or implied, causes the death of another human being.” Thus, consistent with the definition in the Code, the indictment accused Hughey of attempting to cause a death with malice aforethought, regardless of whether the malice was express or implied.

Likewise, the trial court’s instruction accurately reflected the charged offense.

In Georgia, the crime of malice murder is committed when the evidence shows either an express or, in the alternative, an implied intent to commit an unlawful homicide. This meaning of malice murder is consistent with the general rule that crimes which are defined so as to require that the defendant intentionally cause a forbidden bad result are usually interpreted to cover one who knows that his conduct is substantially certain to cause the result, whether or not he desires the result to occur. Thus, a malice murder can be shown not only by evidence that the defendant acted with the deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof, but also by evidence that the defendant acted where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart. In other words, evidence that the defendant acted with implied malice is, for purposes of demonstrating his guilt of the crime of malice murder, no less probative than proof that he acted with a specific intent to kill.

In light of this principle, the jury charge was a correct statement of law and did not misstate the State’s burden to prove intent. Thus, any objection by Hughey’s counsel would have been meritless, and the failure to object was not deficient performance on the part of his trial counsel.

2. Hughey also argues that absent the allegedly erroneous jury charge, the evidence was insufficient to show that he had the specific intent to kill the officer when he shot him. But in light of our holding in Division 1, giving the pattern jury charge was not improper in this case. Further, the evidence showed that Hughey was being chased by a police officer when he stopped, turned, pointed a nine-millimeter handgun at the officer, and said, ‘"You better back your ass up,” before shooting the officer at close range. Even if, as he argued at trial, Hughey only intended to aid his flight and not kill the officer,

[ijmplied malice, however, may be found when the defendant’s conduct exhibits a reckless disregard for human life. [The Supreme Court of Georgia] has adopted the definition of implied malice as being extremely negligent conduct, which creates what a reasonable man would realize to be not only an unjustifiable but also a very high degree of risk of death or serious bodily injury to another or to others — though unaccompanied by any intent to kill or do serious bodily injury — and which actually causes the death of another. Reckless disregard for human life may be the equivalent of a specific intent to kill.

Decided May 18, 2016.

Arianne E. Mathé, for appellant.

Robert D. James, Jr., District Attorney, Lenny I. Krick, Assistant District Attorney, for appellee.

Accordingly, the evidence authorized the jury’s verdict, and we affirm Hughey’s conviction.

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.

       OCGA §§ 16-5-1 (a); 16-4-1.

       OCGA § 16-5-21 (d).

       OCGA § 16-11-106 (b) (1).

       OCGA § 16-11-131 (b).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       Because the original order on the motion for new trial was not served on Hughey’s trial counsel, the appeal proceeded by way of Hughey’s successful motion for an out-of-time appeal.

       (Citations and punctuation omitted.) Smith v. State, 298 Ga. 406, 412 (3) (a) (782 SE2d 269) (2016), quoting Strickland v. Washington, 466 U. S. 668, 694 (III) (B) (104 SCt 2052, 80 LE2d 674) (1984).

       See Suggested Pattern Jury Instructions Vol. II: Criminal Cases (4th ed.), § 2.01.10.

       See Suggested Pattern Jury Instructions Vol. II: Criminal Cases (4th ed.), § 2.10.10.

       “Express malice is that deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.” OCGA § 16-5-1 (b).

       See generally Frazier v. State, 257 Ga. 690, 692 (5) (362 SE2d 351) (1987) (“[0]n an indictment for malice murder, the State may introduce any evidence which is relevant and material upon the issue of malice, either express or implied; and it is unnecessary for the indictment to allege more specifically the facts which will be relied upon to establish malice.” (punctuation omitted)).

       (Punctuation omitted; emphasis supplied.) Jackson v. State, 282 Ga. 668, 671 (653 SE2d 28) (2007).

       See Frazier, 257 Ga. at 692 (5); see also Dukes v. State, 290 Ga. 486, 487 (2) (722 SE2d 701) (2012) (“[T]he trial court’s instruction . . . based on the pattern charge . . . was legally correct.”).

       See Wesley v. State, 286 Ga. 355, 356 (3) (a) (689 SE2d 280) (2010).

       (Citations and punctuation omitted.) Browder v. State, 294 Ga. 188, 190 (1) (751 SE2d 354) (2013).