text:
    A13A1887.
    L & K ENTERPRISES, LLC v. CITY NATIONAL BANK, N.A.
    (755 SE2d 270)
   DOYLE, Presiding Judge.

This appeal arises from the trial court’s order granting summary-judgment to City National Bank, N.A. (“CNB”), on L & K Enterprises, LLC’s, (“L & K”) action for wrongful foreclosure and wrongful eviction regarding L & K’s former property located at 3530 Mall Boulevard, Duluth, Georgia 30096 (“the Property”). The trial court granted summary judgment to CNB on L & K’s claims, and this appeal followed.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). Ade novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Viewed in this light, the record shows that L & K entered into a promissory note with Imperial Capital Bank (“ICB”) for the amount of $2,300,000, which note was secured with a deed to secure debt pledging the Property as security for the loan. In connection with the note, L & K granted ICB a deed to secure debt, a fixture filing, and an assignment of rents. Eventually, in 2010, ICB failed, and the Federal Deposit Insurance Corporation took over the assets, including the note at issue, assigning it to-CNB. Discovering that L & K was in default on the note, CNB began foreclosure proceedings on the Property, eventually calling out the foreclosure on March 1, 2011. Thereafter, the sale was confirmed in a separate proceeding. L & K then filed the instant wrongful foreclosure suit.

1. L & K first argues that the trial court erred by finding that CNB properly filed in the clerk’s office the assignment of the security deed naming it as the holder of the note pursuant to OCGA § 44-14-162 (b).

OCGA § 44-14-162 (b) states: “The security instrument or assignment thereof vesting the secured creditor with title to the security instrument shall be filed prior to the time of sale in the office of the clerk of the superior court of the county in which the real property is located.” CNB presented evidence that the assignment of the security deed was delivered to the clerk’s office at 9:41 a.m. on the day of the sale, March 1, 2011. The legal hours of sales are from 10:00 a.m. to 4:00 p.m. This Court previously has held that evidence of the time of delivery of a document to the clerk’s office constitutes evidence of filing on a certain date, even though the clerk’s date stamp evinced a later date of filing. Thus, the trial court correctly concluded that the assignment of the security deed to CNB was filed prior to the sale. This Court has not addressed how long prior to the sale such a filing must occur, but in subsection (a) of OCGA § 44-14-162.2, the General Assembly included a requirement that notice to the debtor occur 30 days prior to the sale. No such timing requirement other than “prior” was included in subsection (b). Accordingly, CNB met the requirements of the statute by filing the assignment with the clerk prior to the earliest possible sale time.

2. L & K contends that the trial court erred by finding that it had waived its right to file a wrongful foreclosure claim because it did not raise the issue of assignment of the security deed at the earlier confirmation hearing. The trial court’s order, however, contains no such finding. Instead, the trial court stated that “any issues concerning the sufficiency of the foreclosure advertisement were previously decided in the confirmation action in which it was determined that CNB complied with Georgia law in advertising the foreclosure sale of the Property.” The trial court’s conclusion is correct as to the matter of the advertisement, and therefore, this enumeration is without merit.

3. Finally, L & K contends that the trial court erred by finding that it had waived its right to bring a wrongful foreclosure claim because it did not raise it during two earlier bankruptcy proceedings. Nevertheless, L & K has again misconstrued the order of the trial court. The trial court stated that “it should be noted that L & K never raised any objections to CNB’s right to foreclose on the Property. Under such circumstances, the [c]ourts of this State have held that subsequently asserted claims are barred by the doctrines of collateral estoppel, judicial estoppel[,] and waiver.” The trial court previously had determined, however, that CNB had presented unrefuted evidence in the record that the promissory note and security deed were properly assigned to it, and CNB was entitled to enforce the power of sale included in the security deed. L & K does not contest this finding on appeal. Thus, pretermitting whether the trial court’s notation that L & K’s claims were subject to estoppel is a correct statement of the law, this enumeration is without merit because this Court can affirm the trial court’s order on the basis stated above.

Decided March 10, 2014

Reconsideration denied April 2, 2014.

Stephen L. Minsk, for appellant.

Moorman Pieschel, Nicholas J. Pieschel, for appellee.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       See also Duke Galish, LLC v. SouthCrest Bank, 314 Ga. App. 801, 802-803 (1) (726 SE2d 54) (2012) (holding that the foreclosing party cured the late filing by conducting a second foreclosure sale).

       See Stephens v. Espy, 213 Ga. App. 580, 581 (445 SE2d 292) (1994).

       “Notice of the initiation of proceedings to exercise a power of sale in a mortgage, security deed, or other lien contract shall be given to the debtor by the secured creditor no later than 30 days before the date of the proposed foreclosure.” OCGA § 44-14-162.2 (a).

       See You v. JP Morgan Chase Bank, N.A., 293 Ga. 67, 71 (1) (743 SE2d 428) (2013) (“ ‘In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.’ OCGA § 1-3-1 (a). Where the plain language of the statute is clear and susceptible to only one reasonable construction, we must construe the statute according to its terms.”).

       See River Walk Farm v. First Citizens Bank & Trust Co., 321 Ga. App. 173, 174-176 (1) (741 SE2d 165) (2013) (providing a summary of those claims applicable to confirmation hearings and those applicable to wrongful foreclosure actions). See also Howser Mill Homes v. Branch Banking & Trust Co., 318 Ga. App. 148, 149-151 (1) (733 SE2d 441) (2012) (citing OCGA § 44-14-161 (c) which states that the trial court shall pass upon the validity of the advertisement at the confirmation hearing).

       See Hyre a Paxson, 214 Ga. App. 552, 554 (3) (449 SE2d 120) (1994) (holding that the debtor ‘by her voluntary conduct of raising no legal objections before the bankruptcy court as to the validity of subsequent foreclosure in opposition to the lifting of the automatic stay and consenting or acquiescing in the lifting of the stay, has waived her right to object to the subsequent foreclosure on grounds that it was not effected in accordance with Georgia law and the applicable provisions of the second deed to secure debt. A waiver may be established even though the acts, conduct or declarations are insufficient to establish an estoppel. Ordinarily, a waiver operates to preclude a subsequent assertion of the right waived or any claim based thereon.”). Compare with Gajaanan Investment v. Shahil & Sohail Corp., 323 Ga.App. 694, 696 (1) (747 SE2d 713) (2013) (no prior adjudication of the merits by the bankruptcy court, and therefore, no preclusive effect of the bankruptcy court’s order).

       See, e.g., 685 Penn, LLC v. Stabilis Fund I, 316 Ga. App. 210, 211-212 (1) (728 SE2d 840) (2012) (affidavit testimony regarding possession of original note and deed were sufficient to rebut claims that defendant was not the true holder). See also HWA Properties v. Community & Southern Bank, 322 Ga. App. 877, 885, n. 12 (746 SE2d 609) (2013) (“A grant of summary judgment must be affirmed if right for any reason, whether stated or unstated. It is the grant itself that is to be reviewed for error, and not the analysis employed.”) (punctuation omitted).


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A13A1891.
    WINSLETT v. GUTHRIE.
    (755 SE2d 287)
   McFadden, Judge.

This discretionary appeal concerns Bonnie Winslett’s attempt to have a default judgment against her either set aside or vacated after the end of the term of court in which the trial court entered the judgment. There is no dispute that the plaintiff, Terry Guthrie, served Winslett with the complaint or that Winslett failed to file any defensive pleadings before the default judgment was entered. Winslett, however, argues that the default judgment is fundamentally unfair and must be set aside or vacated for two main reasons — because she was mentally incompetent and because she was not notified of the entry of the default judgment. But as detailed below, the trial court found that Winslett was not mentally incompetent, and there was evidence to support that finding. And Winslett’s various arguments pertaining to her failure to receive notice do not demonstrate a ground for either setting aside or vacating a judgment outside the term of court in which it was entered. Accordingly, we affirm.

1. Facts and procedural history.

On February 26, 2012, Winslett and Guthrie were involved in a vehicular collision in which Winslett was driving a car she did not own and Guthrie was riding a bicycle. In May 2012, Guthrie filed a personal injury action against Winslett in the Superior Court of Muscogee County and served the complaint on her. Winslett did not answer or otherwise respond to the complaint. On Wednesday, August 1, 2012, the trial court entered a default judgment of $2,916,204 against Winslett. In the judgment, the trial court ordered Guthrie to provide Winslett a copy of the order entering the judgment by certified mail. A new term of court began the following Monday. See OCGA § 15-6-3 (8) (D) (regarding terms of court for Superior Court of Muscogee County).

Guthrie did not provide Winslett with a copy of the default judgment. He represents this was because he could not locate her. Instead, on August 8, 2012, he sent a copy of the judgment to the insurance carrier that had issued coverage on the car Winslett had been driving. An attorney provided by the insurance carrier to represent Winslett located her on September 20,2012. On September 28, 2012, through that attorney, she moved to set aside or vacate the default judgment, arguing among other things that she was mentally incompetent and had not received notice of the judgment.

At a hearing on Winslett’s motion, the parties presented conflicting evidence concerning her mental competence. The trial court subsequently denied the motion.

2. Winslett’s mental competence.

Winslett argues that the trial court should have set aside the default judgment because she was mentally incompetent when she was served with the complaint and when the judgment was entered against her, rendering that judgment voidable. See Keith v. Byram, 225 Ga. 678, 679 (1) (171 SE2d 120) (1969) (a “judgment rendered against an insane person who has no legal guardian and for whom no guardian ad litem has been appointed for the purpose of appearing for him in that proceeding is voidable, even in a case where the insane person was represented by counsel”) (citation omitted); Chapman v. Burks, 183 Ga. App. 103, 104 (1) (357 SE2d 832) (1987) (explaining that the term “insane person” and the term “mentally incompetent person” mean the same thing). The trial court instead found that Winslett was not mentally incompetent. Because the trial court acted as factfinder in making this determination, we will not disturb its findings on appellate review if they are supported by any evidence. See Savannah Cemetery Group v. DePue-Wilbert Vault Co., 307 Ga. App. 206-207 (1) (704 SE2d 858) (2010).

The parties have not pointed to any authority on how to determine if a person is mentally incompetent for the purpose of rendering a judgment voidable. But in another civil context, we have defined mental incompetence as

whether the individual, being of unsound mind, could not manage the ordinary affairs of his life. It means an individual lacking in the capacity to manage his own affairs---[E] vidence that he was without sufficient mental capacity to perform or understand his conduct during the relevant period would meet the test.

Chapman, 183 Ga. App. at 105 (1) (citations and punctuation omitted).

Applying this definition, we find evidence supporting the trial court’s finding that Winslett was not mentally incompetent. Although Winslett had a lifelong history of significant mental illness, she had never been adjudicated or declared mentally incompetent. Two attorneys who had represented her in guilty pleas to criminal charges in 2011 and 2012 testified that, as a general matter, they would not advise a client to proceed with a guilty plea if she had appeared mentally incompetent to them. The law enforcement officer who served Winslett with the complaint in this case testified that she did not appear to him to be mentally incapacitated. A corrections officer who had interacted with Winslett in jail during a period of time ending in early 2012 testified that Winslett asked cogent questions about her criminal case, her sentence, and her monetary account at the jail.

Finally, a psychiatrist testified that Winslett displayed borderline intellectual functioning in her video-recorded deposition, which the psychiatrist watched. He explained that persons with such functioning “are usually responsible for themselves, they have jobs, they marry, they don’t have guardians.” He testified that he “[didn’t] see anything that indicates that [Winslett] is functionally and mentally a minor child,” and he disputed portions of the affidavit of a psychiatrist who had treated Winslett sporadically over the years and who had averred that she was not capable of managing her affairs or understanding the need to respond to the lawsuit. Winslett argues that the trial court “erred in denying [her] Daubert challenge,” in which she argued that the psychiatrist’s testimony was inadmissible because his review of her video-recorded deposition provided an insufficient foundation for his opinion. See Daubert v. Merrill Dow Pharmaceuticals, 509 U. S. 579, 592-593 (C) (113 SCt 2786, 125 LE2d 469) (1993) (describing trial court’s role in ensuring that expert evidence heard by factfinder meets certain threshold requirements). The admissibility of the psychiatrist’s testimony rested “in the broad discretion of the court, and consequently, the .trial court’s ruling thereon cannot be reversed absent an abuse of discretion.” Agri-Cycle LLC v. Couch, 284 Ga. 90, 93 (5) (663 SE2d 175) (2008) (citation and punctuation omitted). “Our review of the record shows no abuse of discretion in this case, particularly since the trial court, as the trier of fact in the [hearing], was free to accept the parts of [the psychiatrist’s] testimony that were credible and useful and to reject the rest.” Walls v. Walls, 291 Ga. 757, 758-759 (3) (732 SE2d 407) (2012) (citation omitted).

It was for the trial court as factfinder to assess the credibility of the conflicting evidence on Winslett’s mental competency. Savannah Cemetery Group, 307 Ga. App. at 206-207 (1). We find no error in the trial court’s determination that she was mentally competent. Accordingly, the trial court did not err in denying her motion to set aside the judgment on the ground of mental incompetency.

3. Lack of notice as aground to set aside the default judgment.

Winslett argues that the trial court should have set aside the default judgment because she was not provided with notice of the entry of that judgment. Because the term of court in which the trial court entered the judgment had ended when Winslett moved to set it aside, the trial court was permitted to set aside the judgment only under OCGA § 9-11-60. Miranda v. Stewart, 312 Ga. App. 290, 291 (718 SE2d 123) (2011). Winslett contends that the set aside was warranted under both OCGA § 9-11-60 (d) (2) (permitting motion to set aside based on “[fjraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant”) and OCGA § 9-11-60 (d) (3) (permitting motion to set aside based on “[a] nonamendable defect which appears upon the face of the record or pleadings”). But neither subsection provides a ground for setting aside the judgment in this case.

(a) OCGA § 9-11-60 (d) (2).

OCGA § 9-11-60 (d) (2) provides that a motion “may be brought to set aside a judgment based upon ... [fjraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant[.]” Winslett argues that she is entitled to have the default judgment set aside under this subsection because Guthrie intentionally delayed notifying her about the judgment until after the end of the term of court in which the judgment was entered, despite being ordered to do so by the trial court. She argues that this delay prevented her from asking the trial court to set aside the judgment within the term of court in which it was entered, when the trial court could have set the judgment aside under its broader, inherent power rather than the more limited grounds of OCGA § 9-11-60. See Ammons v. Bolick, 233 Ga. 324, 325 (1) (210 SE2d 796) (1974); Miranda, 312 Ga.App. at 291; Lee v. Restaurant Mgmt. Svcs., 232 Ga.App. 902, 903 (1) (503 SE2d 59) (1998).

But even if Guthrie took some act in prosecuting his lawsuit that could be construed as a ground for setting aside the judgment under OCGA § 9-11-60 (d) (2), “the alleged [act] is not unmixed with the negligence or fault of [Winslett] in failing to interpose a defense to [Guthrie’s] suit.” Lee, 232 Ga. App. at 905 (2). Guthrie properly served Winslett with the complaint in the first instance, and, accordingly, Winslett was “charged under the law with the responsibility to ensure that an answer to the complaint was filed.” Id. Because she failed to do so, OCGA § 9-ll-60(d) (2) does not authorize the resulting default judgment to be set aside. See Lee, 232 Ga.App. at 905 (2) (trial court erred in setting aside default judgment under OCGA § 9-11-60 (d) (2), because defendant’s failure to ensure that complaint was answered constituted negligence or fault on defendant’s part).

(b) OCGA § 9-11-60 (d) (3).

OCGA § 9-11-60 (d)(3) provides that a motion “may be brought to set aside a judgment based upon ... [a] nonamendable defect which appears upon the face of the record or pleadings.” Winslett cites our decision in Moore v. Davidson, 292 Ga.App. 57 (663 SE2d 766) (2008), for the proposition that her lack of notice of the entry of the default judgment is such a nonamendable defect. But Moore, and the cases cited therein, are inapposite, because they concern the failure to provide a party with notice of the date of a trial or hearing, not the failure to provide a party with notice of the entry of a default judgment. See Moore, 292 Ga. App. at 58-60; see also Wright v. Wright, 270 Ga. 229, 230-231 (509 SE2d 902) (1998); Coker v. Coker, 251 Ga. 542, 543 (307 SE2d 921) (1983); Taylor v. Chester, 207 Ga. App. 217, 218 (427 SE2d 582) (1993); Shelton v. Rodgers, 160 Ga. App. 910, 911 (288 SE2d 619) (1982). We find no ground for applying OCGA § 9-11-60 (d) (3) in this case.

(c) Other arguments.

In her appellate briefs, Winslett makes various other arguments for a set aside: that the default judgment was not final until Guthrie sent it to her by certified mail; that the trial court improperly relieved Guthrie of his responsibility to provide notice when the trial court denied the motion to set aside; that the default judgment awarded excessive damages; and that enforcing the default judgment was fundamentally unfair and deprived her of due process.

None of these arguments supports reversal. We cannot consider Winslett’s argument that the default judgment was not final, because she did not raise this issue in the trial court. See Nairon v. Land, 242 Ga. App. 259, 261 (3) (529 SE2d 390) (2000). Similarly, we cannot consider her “due process argument [because it] was not ruled upon by the trial court, nor was the failure to rule thereon enumerated as error.” Chanin v. Bibb County, 234 Ga. 282, 292 (5) (216 SE2d 250) (1975). Her remaining arguments do not address the dispositive question in this case — whether she has shown one of the limited statutory grounds of OCGA § 9-11-60 (d) for setting aside a judgment after the end of the court term.

4. Lack of notice as a ground to vacate the default judgment.

Alternatively, Winslett argues that the trial court should have vacated the default judgment under OCGA § 9-11-60 (g), which permits a trial court to correct, at any time, “[cjlerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission[.]” She argues that the trial court then could reenter the default judgment, she could refile her motion to set aside within the same term of court as the reentered judgment, and the trial court could set aside the judgment on grounds other than those provided in OCGA § 9-11-60 (d). See Miranda, 312 Ga. App. at 291 (trial court has discretion to set aside judgment within same term of court for “meritorious reasons”).

We cannot agree. Guthrie’s failure to comply with the notification requirement of the trial court’s order is not the type of error that would permit the trial court to vacate the judgment under OCGA § 9-11-60 (g). Where the trial court is required to notify a party of a judgment, but fails to do so, then the trial court may vacate the judgment under OCGA § 9-11-60 (g) and then reenter it. See Cambron v. Canal Ins. Co., 246 Ga. 147, 148-149 (1) (269 SE2d 426) (1980) (construing earlier version of statute). This “serves to correct the prejudice caused by a trial court’s error in failing to notify the losing party of the judgment.” Vangoosen v. Bohannon, 236 Ga. App. 361, 362 (1) (511 SE2d 925) (1999) (emphasis supplied).

But Winslett has not shown that the trial court erred in failing to notify her of the judgment, because the trial court had no responsibility to give her such notice. Although OCGA § 15-6-21 (c) requires a judge “to file his or her decision with the clerk of the court in which the cases are pending and to notify the attorney or attorneys of the losing party of his or her decision,” it also specifies that “[s]aid notice shall not be required if such notice has been waived pursuant to subsection (a) of Code Section 9-11-5.” OCGA § 9-11-5 (a) provides that “the failure of a party to file pleadings in an action shall be deemed to be a waiver by him or her of all notices, including notices of... entry of judgment[.]” Under these Code sections, Winslett had no right to receive notice from the trial court of the entry of the default judgment.

Cases cited by Winslett do not provide otherwise. Vangoosen, supra, 236 Ga. App. 361, in which we stated that OCGA § 15-6-21 (c) required the trial court to serve a defendant with notice of entry of a default judgment, was decided under a prior version of that Code section that the General Assembly later struck and replaced in its entirety. See Ga. L. 2001, p. 854, § 2. One of the General Assembly’s purposes in doing so was “to provide that notification is not required when service has been waived by law.” Ga. L. 2001, p. 854. Consequently, Vangoosen offers no support for the proposition that, under current law, the trial court has a duty to give notice of the entry of a default judgment to the defendant who failed to file defensive pleadings.

Winslett also points to the Supreme Court’s decision in Anderson v. Anderson, 264 Ga. 88 (441 SE2d 240) (1994), to argue that her failure to file defensive pleadings did not waive her right to notice, but that decision is inapposite. In Anderson, the Court declined to find a waiver under OCGA § 9-11-5 (a) where the trial court assured a party in open court that he would receive notice of a final hearing despite having failed to file defensive pleadings. Anderson, 264 Ga. at 89-90. The defendant’s reliance upon the trial court’s assurance was central to that decision. Unlike the defendant in Anderson, Winslett has not shown that she received any assurance from the trial court regarding notice of the entry of a judgment against her, much less that she relied on such assurance. From the record, it appears that the only statement of the trial court regarding the notice Winslett was to get of the entry of judgment against her was contained in that judgment itself, a document that Winslett did not see.

Decided March 13, 2014

Reconsideration denied April 2, 2014

Virgil T. Theus, Waldrep, Mullin & Callahan, Neal J. Callahan, for appellant.

Charles A. Gower, Charles A. Gower, Jr., Philips, Branch & Hodges, Stephen J. Hodges, Bondurant, Mixson & Elmore, Michael B. Terry, for appellee.

Consequently, the trial court had no statutory duty to notify Winslett of the default judgment in this case. And Winslett has offered no support for the proposition that, by ordering Guthrie to provide her with a copy of the judgment, the trial court also took upon itself a duty to provide notice to Winslett. These circumstances do not implicate the rule set forth in Cambron, supra, 246 Ga. 147, which concerns a trial court’s failure to satisfy its own obligation to notify a party of a judgment. Simply put, Guthrie’s failure to comply with a provision of the trial court’s order was not a clerical mistake or error within the default judgment that would permit the trial court to vacate the judgment under OCGA § 9-11-60 (g).

Judgment affirmed.

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


author: DOYLE, Presiding Judge.

text:
    A13A2385.
    McKINNEY v. THE STATE.
    (755 SE2d 315)
   DOYLE, Presiding Judge.

Following a jury trial, Micah Andre McKinney was convicted of possession of marijuana with the intent to distribute and possession of more than one ounce of marijuana. He appeals the denial of his subsequent motion for new trial, arguing that (1) the trial court erred by denying his motion to suppress; (2) the trial court erred by conducting the motion to suppress hearing in the presence of the jury; and (3) he received ineffective assistance of counsel. For the reasons that follow, we affirm.

Viewed in favor of the verdict, the evidence shows that during the evening on April 20,2011, Officer Corey Tate was working as a K-9 police dog handler when he observed a car operating on the highway without tail or tag lights. When Officer Tate made contact with the vehicle, the driver, McKinney, changed lanes without signaling. Officer Tate executed a traffic stop and approached the car, which also contained a male passenger, Jerrell Manghane. After McKinney conceded that he had been driving without his lights, Officer Tate directed him to exit the vehicle, advised him of his Miranda rights, and began writing him a courtesy warning. McKinney, who seemed nervous, told Officer Tate that he lived in Chattanooga but had come to Atlanta to take his son home to Decatur. Before turning his back on McKinney and approaching the car to speak with Manghane, Officer Tate asked McKinney for permission to pat him down for weapons. McKinney consented and began to “jerk everything out of his pocket.”

After confirming that McKinney did not have any weapons, Officer Tate approached the car, obtained Manghane’s identification, and asked Manghane about their reason for being in the area. Manghane, who seemed nervous and evasive, stated that he and McKinney were on the way to Atlanta so Manghane could see his aunt; Manghane did not mention McKinney’s son.

Based on the men’s inconsistent stories, Officer Tate believed they were being deceitful, and he asked McKinney if he had anything illegal in the vehicle. McKinney replied that he did not, offered to allow the officer to search the trunk, and eventually agreed to allow the officer to search the vehicle. When Officer Tate asked McKinney to sign the consent form for the search, McKinney withdrew his consent after Manghane advised him that he did not have to allow the search.

Officer Tate then asked Officer Pullen, who was already on the scene, to retrieve his K-9 dog. The dog performed a free-air sniff around the vehicle, and alerted twice, once on the driver’s side and once on the passenger’s side of the car. Police then searched the car and found three-quarters of a pound of marijuana on the backseat floorboard behind the driver’s seat. The marijuana was packaged in seven small baggies, which were contained in a Ziploc bag, which was contained in a large, white, plastic bag; the officer who searched the car could smell the odor of raw marijuana inside the car when he manipulated the bag.

Manghane, who was also charged, entered a guilty plea prior to trial. At the conclusion of the evidence, the jury found McKinney guilty of possession of more than one ounce of marijuana and possessing marijuana with the intent to distribute. McKinney appeals the denial of his subsequent motion for new trial.

1. McKinney argues that the trial court erred by denying his motion to suppress. We disagree.

There are three principles we apply when reviewing a trial court’s ruling on a motion to suppress:

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

The United States Supreme Court recently explained the standard for reviewing a finding of probable cause based on a drug-detection dog’s alert:

The court should allow the parties to make their best case, consistent with the usual rules of criminal procedure. And the court should then evaluate the proffered evidence to decide what all the circumstances demonstrate. If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause. If, in contrast, the defendant has challenged the State’s case (by disputing the reliability of the dog overall or of a particular alert), then the court should weigh the competing evidence.... The question — similar to every inquiry into probable cause — is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test.

Here, the dog’s handler, Officer Pullen, testified that he and his dog, Simba, which he had for four years, were trained and certified each year. As of November 2011, Officer Pullen had conducted 786 searches with Simba. McKinney did not challenge Simba’s training, however, but instead argued that the officers did not have probable cause to conduct the search because Simba did not in fact alert during the search, but instead stopped to relieve himself.

Officer Pullen testified that he walked Simba around the vehicle, and while he was near the driver’s side door, Simba indicated that he was “working odor” by raising his head and wagging his tail. Officer Pullen walked Simba back around the car, and Simba sat down on the driver’s side, indicating a final alert. Officer Pullen then walked him to the passenger’s side, where Simba again indicated he was working odor and then attempted to indicate an alert by sitting, but was unable to complete the alert because he had to relieve himself. Officer Tate also testified that he saw Simba alert on the driver’s side door, as did a third officer on the scene. McKinney points out, however, that the videotape of Simba’s search conflicted with Officer Pullen’s testimony that Simba alerted on the driver’s door by sitting down.

Whether Simba in fact alerted on the car was a question of fact for the trial court, which we must accept unless clearly erroneous. Officer Pullen’s testimony regarding his experience with Simba and his observations and conclusions regarding the dog’s behavior was sufficient to support the conclusion that he alerted on the car. Moreover, “[i]n reviewing the trial court’s denial of [McKinney’s] motion to suppress, we consider whether the totality of the circumstances, and not merely the drug dog’s alert, supports a finding of probable cause.” Here, the officers’ testimonies regarding Simba, along with Officer Tate’s testimony regarding the conflicting stories between the two men and their nervousness, was sufficient to support the trial court’s denial of the motion to suppress.

2. McKinney contends that the trial court erred by hearing the motion to suppress during the trial because it deprived him of his Fourth Amendment right to testify at the suppression hearing in order to protect his Fifth Amendment right to remain silent at trial. We find no basis for reversal.

McKinney filed his motion to suppress on Friday, October 28, 2011, two business days before the November 2, 2011 trial. Immediately before trial, counsel advised the court that McKinney had filed a motion to suppress, and the court indicated that it would hear the motion during the course of the trial. Trial counsel responded, “Okay, I’ll do it at that stage.” Trial counsel did not advise the court at that time that McKinney wished to testify at the suppression hearing, nor did counsel do so before the trial court ruled on the motion to suppress.

“[T]he trial court has a broad discretion in regulating and controlling the business of the court, and the appellate court should never interfere with its exercise unless it is made to appear that wrong or oppression results from its abuse, or the court in some manner takes away rights the parties have under the law.” Here, McKinney testified at the hearing on his motion for new trial that he did not observe Simba sit down during the free-air search, in contrast to the officers’ testimonies that Simba sat down and alerted on the car. After hearing McKinney’s testimony, the trial court denied the motion for new trial, noting that he considered and rejected trial counsel’s argument at the suppression hearing that the dog never alerted. The court recognized that although hearing a motion to suppress during trial “is not the best protocol,” the court was not willing to permit a defendant to delay trial to conduct a hearing on an untimely suppression motion. Given the timing of the motion, the trial court’s consideration of the argument that the dog failed to alert, and McKinney’s failure to advise the court that he wished to testify before the court ruled on the motion to suppress, we find no abuse of discretion in conducting the suppression hearing during the trial.

3. Finally, McKinney contends that trial counsel was ineffective by failing to object to the trial court’s decision to conduct the motion to suppress in the presence of the jury.

To establish ineffective assistance of counsel under Strickland v. Washington, [] [McKinney] must prove (1) that [his] trial counsel’s performance was deficient, and (2) that counsel’s deficiency so prejudiced [his] defense that a reasonable probability exists that the result would have been different but for the deficiency. The trial judge, who oversaw the trial and heard the evidence presented at the hearing on the motion for new trial, makes the findings on whether the performance was deficient and whether it prejudiced the defendant, findings that this Court does not disturb unless clearly erroneous. Additionally, a court is not required to address the performance portion of the inquiry before the prejudice component or even to address both components if the defendant has made an insufficient showing on one.

Decided March 18, 2014

Reconsideration denied April 2, 2014

Robert C. Rutledge, for appellant.

Rosemary M. Greene, District Attorney, Suzanne Z. Brookshire, Assistant District Attorney, for appellee.

In this case, it was within the trial court’s discretion to conduct the motion to suppress hearing during the trial, and McKinney has not demonstrated that testifying at the suppression hearing outside the presence of the jury would have changed the outcome of the trial. Furthermore, given Manghane’s testimony at trial that he helped McKinney locate a drug dealer and purchased $900 worth of marijuana at McKinney’s request, McKinney has failed to demonstrate that a reasonable probability exists that the outcome of the trial would have been different but for trial counsel’s purported deficiency. Because McKinney has failed to establish prejudice, we find no error in the trial court’s denial of the motion for new trial on the basis of ineffective assistance of counsel.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       OCGA § 16-13-30 (j) (1).

       OCGA § 16-13-30 (j) (1).

       See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

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

       (Punctuation omitted.) Brown v. State, 293 Ga. 787, 803 (3) (b) (2) (750 SE2d 148) (2013). We recognize that “[w]hen the controlling facts are not in dispute, such as facts discernible from a videotape, we conduct a de novo review of both the facts and the law in determining the admissibility of the statement.” Dennis v. State, 293 Ga. 688, 691 (2) (748 SE2d 390) (2013). Here, although there was a videotape of the traffic stop, a portion of the dog’s actions depicted therein are obscured by McKinney’s car, and the controlling facts are not undisputed. Therefore, the de novo standard of review is inapplicable in this case.

        Florida v. Harris,_U. S._,_(II) (133 SCt 1050, 185 LE2d 61) (2013).

       According to Officer Pullen, Simba was experiencing stomach distress and had relieved himself in the back of the patrol car immediately prior to the search.

        Dawson v. State, 238 Ga. App. 263, 265 (1) (518 SE2d 477) (1999).

       See id.

       (Punctuation omitted.) Christopher v. State, 262 Ga. App. 257, 264 (6) (585 SE2d 107) (2003).

       See Weaver v. State, 137 Ga. App. 470, 471 (4) (224 SE2d 110) (1976) (“A motion to suppress evidence relating to a line-up identification was reserved by the trial judge until the evidence was submitted, and it was not error to wait until the trial to make this determination. The court has a broad discretion to conduct the trial as it sees fit, and no abuse has been shown in the method the court used in this instance to try the case.”).

       466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

       (Punctuation and footnotes omitted.) Simons v. State, 311 Ga. App. 819, 821 (2) (717 SE2d 319) (2011), quoting Jackson v. State, 284 Ga. App. 619, 627-628 (11) (644 SE2d 491) (2007).

       See, e.g., Mason v. State, 325 Ga. App. 609, 620 (3) (c) (754 SE2d 397) (2014).


author: MCFADDEN, Judge.

text:
    A13A2394.
    THE STATE v. OLIVER.
    (755 SE2d 293)
   MCFADDEN, Judge.

After a jury trial, Stanley James Oliver was convicted of kidnapping with bodily injury, rape, and aggravated assault of his former girlfriend, F. W. At trial, the state had elicited testimony from F W. about Oliver’s earlier acquittal on charges of similar crimes against another person. Oliver moved for a new trial on the ground that the trial court erred in allowing this testimony, among other reasons. A different trial judge considered the motion and granted Oliver a new trial on that ground. The state appeals.

As detailed below, we find that F W.’s testimony was admissible. It was not collaterally estopped by the earlier acquittal, was relevant to an issue that Oliver had raised in his cross-examination of F. W, and only incidentally placed Oliver’s character in issue. We further find that the trial court’s earlier ruling on a motion in limine did not preclude the testimony. For these reasons, the trial court did not err in allowing the testimony at trial, and the admission of the testimony was not a ground for the grant of a new trial. We therefore reverse.

1. Facts and procedural background.

The state charged Oliver with committing the offenses of kidnapping with bodily injury, rape and aggravated assault during a period of time between March 8 and March 12, 2008. At trial, F. W. testified on direct examination that she had a previous relationship with Oliver and that he had become violent with her on at least one occasion before March 8, but that she had not reported his violent acts to law enforcement. She testified that she was afraid of Oliver. On March 8, she agreed to go with Oliver to his house. She testified that Oliver then held her captive in the house for several days, beating her, stabbing her, hitting her with a fireplace poker, ripping out some of her hair, and threatening to kill her. At one point during her captivity she had sexual intercourse with him in the hope that this would enable her to escape. F. W. finally escaped the house on March 12.

Oliver’s defense strategy centered on questioning F. W.’s credibility and her account of what took place at Oliver’s house between March 8 and March 12. To that end, Oliver’s counsel questioned F. W. on cross-examination about her failure to call law enforcement on the earlier occasion when Oliver beat her.

At a bench conference before redirect, the state argued that Oliver’s counsel had opened the door for F. W. to testify about what Oliver had told her about a “prior that he was acquitted of... and how that related to her not calling the police.” This referred to Oliver’s earlier acquittal on charges of crimes against another person, P. M. Oliver’s counsel denied opening the door to testimony about the prior acquittal. The trial court stated, ‘Yeah. I think he’s right.” Although ambiguous on the cold record, the trial court’s statement appears from the context to have been a ruling in favor of the state, which proceeded on redirect to ask the following questions:

Q. [Oliver’s counsel] said that either you and your mother, or maybe your mother, knew about Mr. Oliver’s history with women. You remember that question?
A. Yes, sir.
Q. And something to the effect he had a history of doing this to women. Do you remember that question?
A. (Nods head affirmatively.])
Q. And [Oliver’s counsel] also asked you about why you didn’t report that first, those first bruises, you didn’t report that to law enforcement. You remember that?
A. (Nods head affirmative [ly.])
Q. Did Mr. Oliver tell you anything about [P. M.]?
A. Yes, sir.
Q. . . . What did he tell you about [P. M.]?
A. He just — He didn’t tell me nothing straight out about [P. M.]. But, but I heard ’em talking about getting by with what he did to her. They were all sitting around laughing about beating the system.
Q. Okay. And —
A. And so I knew he’d done got by with it. And that it was just gonna be trouble.
Q. Did that have an effect on you and cause you — Did that influence your decision not to call law enforcement the first time?
A. Yes, sir.
Q. Okay. And, in fact, he faced charges for doing similar things to [P. M.], is that right?
A. Yes, sir.
Q. But a jury found him not guilty?
A. Yes, sir.
Q. Jury said he didn’t do that.
A. (Nods head affirmative[ly.])
Q. But you knew that he had been found not guilty of those same things and you were taking all that into consideration didn’t you?
A. (Nods head affirmatively.])
Q. Did he tell you anything while you were at his home from March 8th to March 12th about the trial of [P. M.]?
A. Just that they were like no —
[Discussion between trial court and counsel that they could not hear F. W.’s response.]
Q. And again, [Oliver’s counsel] asked you some questions about why you didn’t report this. You remember those questions?
A. Yes, sir.
Q. Did Mr. Oliver ever tell you of plans he had of things to do to [P. M.,] the woman who had testified against him?
A. Yes, sir.
Q. What were those plans and what did he tell you?
A. He was gonna nail their door shut and burn them out.
Q. What about did he tell you anything about what he would do if he were convicted of those offenses?
A. He said that he would get the — the jailer’s gun and shoot her.
Q. Okay. Did that influence you in deciding not to report that first incident?
A. Yes, sir.

Oliver cited the trial court’s decision to allow the above testimony as one of the grounds for his motion for new trial. A different judge heard argument on the motion and agreed with Oliver that the jury should not have heard the testimony about the prior acquittal, in part because he found that the evidence was precluded by the trial court’s ruling on a motion in limine. That earlier ruling provided that the state would instruct its witnesses not to mention Oliver’s “record and incarceration” and that if the state felt Oliver had opened the door on that issue the state would first seek permission from the trial court before questioning its witnesses on it. In granting Oliver a new trial, the new judge found that Oliver’s counsel had not opened the door to testimony on the acquittal through his cross-examination of F. W.

2. Standard of review.

As an initial matter we consider our standard of review. We are reviewing the trial court’s decision to grant a new trial to Oliver on the ground that the testimony about the prior acquittal was inadmissible. In his ruling, the substitute trial judge acknowledged that this was a purely legal issue, and he did not receive any evidence or make any findings of fact on the issue. Under these circumstances, we do not apply the standard of review codified in OCGA § 5-5-50 (“The first grant of a new trial shall not be disturbed by an appellate court unless the appellant shows that the judge abused his discretion in granting it and that the law and facts require the verdict notwithstanding the judgment of the presiding judge.”). See O’Neal v. State, 285 Ga. 361, 363 (677 SE2d 90) (2009). Instead, we review the decision on the motion for new trial de novo. Id. Compare Ford Motor Co. v. Conley, 294 Ga. 530, 538 (2), n. 7 (757 SE2d 20) (2014) (explaining that de novo standard does not apply to appellate review of the grant of an extraordinary motion for new trial that presented mixed questions of law and fact and on which the trial court had made factual findings).

In determining whether the trial court erred in ruling on the motion, we must consider the nature of the trial error that Oliver claimed warranted him a new trial. That claimed error involved the trial court’s admission of evidence, a matter that was within the trial court’s discretion. See Jordan v. State, 293 Ga. 619, 622 (2) (a) (748 SE2d 876) (2013). Consequently, although we review de novo the ruling on the motion for new trial, in doing so we review for abuse of discretion the trial court’s initial decision to allow the testimony about Oliver’s acquittal.

3. Admissibility of testimony about prior acquittal on similar charges.

(a) Collateral estoppel.

A state is collaterally estopped from “offer [ing] proof that a defendant committed a specific crime which a jury of that sovereign has concluded that he did not commit.” Moore v. State, 254 Ga. 674, 675 (333 SE2d 605) (1985) (citationomitted); see Culliver v. State, 247 Ga.App. 877, 880 (3) (545 SE2d 392) (2001) (where prior trial resulted in acquittal of defendant on false imprisonment charge and mistrial on two other charges, on retrial collateral estoppel precluded testimony that defendant had grabbed victim as she tried to get away from him). Nevertheless, “there is not a per se rule prohibiting any evidentiary use of an independent offense where an acquittal was obtained; instead, the doctrine of collateral estoppel requires an examination of what facts were in issue and necessarily resolved in the defendant’s favor at the first trial.” Faniel v. State, 291 Ga. 559, 562 (2) (731 SE2d 750) (2012) (citation omitted).

The state, however, did not offer proof that Oliver actually committed the specific crimes against P. M. of which he had been acquitted; it offered proof that Oliver made comments to F. W. that led her to think that he had committed those crimes and gotten away with them, which deterred her from contacting law enforcement when Oliver physically abused her. Whether Oliver actually committed the crimes against P. M. was not dispositive of the issues in this case. Whether F. W. was led to believe Oliver had committed those crimes, on the other hand, was relevant. Accordingly, the fact that the state sought to prove through F. W.’s testimony about the acquittal was not Oliver’s guilt of the prior crimes, but F. W.’s belief regarding his guilt. Because the acquittal did not adjudicate the issue of F. W.’s belief, the state was not collaterally estopped from introducing this testimony.

(b) Bad character evidence.

Oliver argues that the testimony referring to the prior acquittal was inadmissible bad character evidence. Under former OCGA § 24-2-2, which was in effect at the time of Oliver’s 2008 trial, “[t]he general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.”

F. W.’s testimony can be construed as character evidence. The prosecutor asked F. W, “he [Oliver] faced charges for doing similar things to [P. M.], is that right,” to which she responded, ‘Tes, sir.” Although the prosecutor then pointed out that Oliver had been acquitted of those charges, the fact that Oliver was charged with and prosecuted for those crimes in the first place negatively reflected on his character. See Morrow v. State, 229 Ga. App. 242, 245 (4) (493 SE2d 616) (1997) (where state no longer was pursuing two counts against defendant, it was error to send out with jury an unredacted copy of indictment referring to those two counts because they “impermissibly reflect[ed] on defendant’s character”).

Nevertheless, “[e]vidence that is relevant and material to an issue in the case is not made inadmissible because it incidentally places the defendant’s character in issue.” Price v. State, 269 Ga. 373, 374 (2) (497 SE2d 797) (1998) (citations omitted). And as the state argues, the challenged testimony was relevant to explain F. W.’s conduct in the period leading up to March 8, after Oliver’s counsel on cross-examination questioned her failure to notify law enforcement about Oliver’s prior violent acts against her. See Mims v. State, 314 Ga. App. 170, 174 (2) (723 SE2d 486) (2012) (witness’s testimony to explain conduct that had been called into question on cross-examination was relevant to issues at trial). This was a permissible ground for admitting the evidence at trial, even though it implicated Oliver’s character. See Price, 269 Ga. at 374-375 (2) (trial court did not abuse its discretion in allowing defendant’s girlfriend to testify about defendant’s violent behavior toward her to explain why she delayed reporting a murder he committed); Borders v. State, 285 Ga. App. 337, 340-341 (2) (646 SE2d 319) (2007) (trial court did not abuse its discretion in allowing investigating detective’s testimony that molestation victim told him she had witnessed defendant hitting her mother, where state sought to use testimony to explain why victim delayed in reporting molestation, an issue that had first been raised by defendant). The trial court did not abuse its discretion in allowing the testimony. See Jordan, 293 Ga. at 622 (2) (a).

Decided March 13, 2014

Reconsideration denied April 2, 2014.

Brian M. Rickman, District Attorney, J. Edward Staples, Assistant District Attorney, for appellant.

Jimmonique R. S. Rodgers, Harvey S. Wasserman, for appellee.

4. Motion in limine.

The trial court’s earlier ruling on the motion in limine provides no ground for a grant of new trial. Although the state and Oliver dispute whether that ruling encompassed the acquittal testimony the state clearly abided by that ruling when it sought permission from the trial court before eliciting the testimony on redirect examination. And a trial court may modify its ruling on a motion in limine. Bradford v. State, 274 Ga. App. 659, 661 (3) (618 SE2d 709) (2005).

Judgment reversed.

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

On Motion for Reconsideration.

Oliver seeks clarification that our ruling does not address the merits of grounds upon which he sought a new trial but which the trial court expressly did not consider in ruling on the motion. Pertinently the trial court’s order on Oliver’s motion for new trial states that, “[b]y agreement of the parties, the motion has been bifurcated for presentation and decision into those issues of a purely legal nature and those requiring an evidentiary hearing.” In granting the motion for new trial, the trial court ruled only on the legal issues, and the record makes clear that the trial court, Oliver, and the state contemplated that if the trial court denied the motion on the legal issues they then would proceed to address the remaining issues that required an evidentiary hearing. Our reversal of the trial court’s grant of Oliver’s motion for new trial does not address or affect the merits of those remaining issues, which the trial court has not yet heard or decided.

Motion for reconsideration denied.


text:
    A13A2452.
    PLEMMONS v. THE STATE.

      (755 SE2d 205)
   DOYLE, Presiding Judge.

Glenn Plemmons was convicted of driving under the influence to the extent that he was a less safe driver (“DUI less safe”) and driving on the wrong side of the road. Plemmons appeals the trial court’s subsequent denial of his motion for new trial, (1) arguing that the trial court erred by admitting his refusal to submit to State-administered chemical testing, and (2) challenging the sufficiency of the evidence. We affirm for the reasons that follow.

Construed in favor of the verdict, the record shows that on the evening of November 24, 2009, Melissa Reed was standing outside when she observed Plemmons’s truck traveling quickly down the middle of a residential street. As Plemmons traversed a curve in the road, he lost control of the vehicle, veered off the road, and struck a fire hydrant, ripping it out of the ground. Although the engine was still running after the impact, Plemmons attempted to restart it.

Plemmons’s next-door neighbor, Michael Lynn Francis, was in his car beside Reed, who was standing outside, when he heard the impact. Francis exited his vehicle and approached Plemmons to ascertain if he was hurt. Plemmons was hitting the accelerator because the truck was “hung” on the fire hydrant, and water from the hydrant was running down the street. Plemmons then exited his truck, and Francis jumped into it and placed it into park after noticing that the rear tires were still turning. Plemmons asked Francis several times if someone had called the police. According to Francis, Plemmons was bleeding from his lip, smelled like beer, had slurred speech, was “stumbling and awkward[ ],” and appeared to be “drunk.”

Kay Rupp, who was in bed, heard the noise of the impact, which awoke her sleeping husband. Rupp went outside and saw that Plemmons’s truck struck and shattered her cement mailbox before landing on the fire hydrant, which was spewing water. Plemmons had blood on his forehead, was “staggering,” and had slurred speech, and Rupp “smelled a very strong, powerful smell of alcohol” emanating from him.

When Deputy Lawrence E. Tanner of the Forsyth County Sheriff’s Department responded to the scene, he observed that Plemmons’s nose was bleeding, he had a large gash from his nose to his mouth, his speech was slurred, his eyes were bloodshot and watery, he was unsteady on his feet, and he smelled of alcohol. Plemmons admitted that he had consumed “a few beers,” but said that he had lost control of his vehicle when he swerved to avoid hitting another vehicle that swerved in front of him, and he had hit his face on the steering wheel. Although he believed Plemmons was intoxicated to the extent that he was a less safe driver based upon his manifestations, Deputy Tanner did not perform field sobriety tests upon him because he believed Plemmons needed medical attention. Plemmons was transported to the emergency room via ambulance, and Deputy Tanner followed him in his patrol car. After speaking to the charge nurse, Deputy Tanner entered Plemmons’s hospital room and wrote him citations for DUI less safe and failure to maintain lane; the citations directed Plemmons to appear in court on February 2, 2010. The officer then advised Plemmons that he was “under custodial arrest,” which Deputy Tanner later testified meant that Plemmons “was not processed, which means he was not arrested,” explaining:

That’s generally what we do when somebody’s going to the hospital. You don’t arrest them on the scene because the County doesn’t want to pay for their bill. So they’re not processed. If they’re going to the hospital,. .. when he goes to court that’s when he’s processed on all his paperwork.

Deputy Tanner gave Plemmons the citations and then read him the implied consent rights. Plemmons refused any testing, and the deputy left him at the hospital for treatment.

Following a jury trial, Plemmons was found guilty of DUI less safe and driving on the wrong side of the roadway. The trial court denied his subsequent motion for new trial, and this appeal followed.

1. Plemmons argues that the trial court erred by denying his motion in limine to exclude evidence that he refused state-administered chemical testing. We find no basis for reversal.

The trial court denied Plemmons’ motion in limine to exclude his refusal to submit to chemical testing, specifically relying upon Hough v. State, and concluding that because Plemmons had sustained serious injuries in the accident and Deputy Tanner had probable cause to believe that he had been driving under the influence, the officer was not required to arrest Plemmons prior to the reading of the implied consent. Following his conviction, Plemmons based his motion for new trial in part upon the trial court’s denial of his motion in limine. A new judge presided over the motion for new trial, and it denied the motion, stating:

After review of the record, the [cjourt finds that [Plemmons’s] refusal [to submit to testing] was properly admitted, not for the reason stated by the court that the defendant suffered a serious injury as defined by OCGA § 40-5-55, but because, under the totality of the circumstances, [Plemmons] was arrested prior to the request for a chemical test.

We agree.

OCGA § 40-5-55 (a) provides, in relevant part:

. . . [A]ny person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent, subject to Code Section 40-6-392, to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug, if arrested for any offense arising out of acts alleged to have been committed in violation of Code Section 40-6-391. . . .

“An arrest is accomplished whenever the liberty of another to come and go as he pleases is restrained, no matter how slight such restraint may be. The defendant may voluntarily submit to being considered under arrest without any actual touching or show of force[.]” The adequacy of implied consent notice depends upon

whether the individual was formally arrested or restrained to a degree associated with a formal arrest, [and] not whether the police had probable cause to arrest. The test is whether a reasonable person in the suspect’s position would have thought the detention would not be temporary.... [I]t is the reasonable belief of an ordinary person under such circumstances, and not the subjective belief or intent of the officer, that determines whether an arrest has been effected.

Whether a suspect is under custodial arrest

is a mixed question of law and fact. Therefore, to the extent that determination of the issue hinges on resolution of factual questions, an appellate court construes the evidence most favorably to uphold the trial court’s findings and accept those findings unless they are clearly erroneous; but the appellate court independently applies the legal principles to those facts.

Here, Deputy Tanner testified that in Plemmons’s room at the hospital, he “wrote a ticket DUI less safe. I read — I told [Plemmons] he was under custodial arrest, gave him the tickets [,] and then read him implied consent, and he refused.” Given this evidence, particularly the officer’s statement to Plemmons that he was “under custodial arrest,” we find no error in the trial court’s determination that a reasonable person in Plemmons’s position would not think that he was free to leave at the time Deputy Tanner read the implied consent warnings, and therefore, “the reading of the notice was done at the ‘time of the arrest’ as required by OCGA §§ 40-5-55,40-5-67.1 (a), and 40-6-392 (a) (4).”

Plemmons’s reliance upon Handschuh v. State is misplaced. In Handschuh, we reversed the denial of the defendant’s motion to suppress his refusal to submit to chemical testing of his bodily fluids because the officer read him the implied consent warning six days before his arrest. In this case, in contrast, although Plemmons was not processed at the jail at the time, Deputy Tanner explicitly told Plemmons that he was under arrest. And Deputy Tanner’s subsequent clarification at trial that he did not “process” Plemmons — meaning that Plemmons “was not arrested” because the officer did not want the county to be responsible for paying Plemmons’s hospital bill — does not require reversal. There is no evidence that this explanation was communicated to Plemmons, who was awaiting treatment at the hospital for injuries sustained in a traffic accident and speaking to the officer who had followed the ambulance in his patrol car after Plemmons told him he had consumed alcohol. Accordingly, we find no error in the trial court’s determination that “[ujnder the totality of the circumstances, ... a reasonable person in [Plemmons’s] position would believe that he was not free to leave.”

2. Plemmons also challenges the sufficiency of the evidence. When an appellate court reviews a challenge to the sufficiency of the evidence

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

Decided February 18, 2014

Reconsideration denied April 2, 2014

Ashleigh B. Merchant, for appellant.

Donna S. Gopaul, Solicitor-General, Adam E. Keller, Inez Grant, Assistant Solicitors-General, for appellee.

Here, Plemmons points out that the second officer on the scene did not smell alcohol on him. He also states in his appellate brief that “essentially the evidence in this case consisted of Deputy Tanner testifying of an odor of alcohol and that [Plemmons] told him that he had consumed some alcohol earlier that day and the actual car accident itself.” While this evidence alone is sufficient to support Plemmons’s convictions, this argument completely ignores the testimonies of Reed, Francis, and Rupp, including that Plemmons drove in the middle of the road, lost control of his truck, he smelled of alcohol, had slurred speech, and was stumbling. This evidence suffices to support Plemmons’s convictions.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       OCGA § 40-6-391 (a) (1).

       OCGA § 40-6-40 (a).

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

       According to Reed, there were no vehicles in Plemmons’s path prior to impact, and there were no vehicles traveling behind his truck.

       After realizing that the road Plemmons was driving on at the time of the incident did not contain a striped dividing line, the State filed an amended accusation charging Plemmons with driving on the wrong side of the road in violation of OCGA § 40-6-40 (a) instead of failure to maintain lane. See OCGA § 40-6-40 (a) (“Upon all roadways of sufficient width, a vehicle shall be driven upon the right half of the roadway” except in certain circumstances not applicable in this case); OCGA § 40-6-48 (1) (“Whenever any roadway has been divided into two or more clearly marked lanes for traffic,... [a] vehicle shall be driven as nearly as practicable entirely within a single lane. . . .”).

       Deputy Christian Scott Goldsberry, the second officer on the scene that night, testified that he stayed behind with Plemmons’ truck to wait for the wrecker while Plemmons was transported to the hospital. Goldsberry did not inventory or impound the vehicle because Plemmons had not yet been arrested.

       See State v. Collier, 279 Ga. 316, 317 (612 SE2d 281) (2005) (“Under the implied consent law, the consequences of refusing the requested testing [include] the possibility of admission of such refusal at a criminal trial.. . .”).

       279 Ga. 711, 713 (1) (a) (620 SE2d 380) (2005) (Law enforcement may request a driver who has not been arrested to submit to chemical testing if the driver “has been involved in a traffic accident resulting in serious injuries or fatalities and the investigating law enforcement officer has probable cause to believe that the individual was driving under the influence of alcohol or other drugs.”) (emphasis omitted).

       (Emphasis supplied.)

        Clements v. State, 226 Ga. 66, 67 (2) (172 SE2d 600) (1970).

       (Punctuation omitted; emphasis supplied.) Suluki v. State, 302 Ga. App. 735, 738 (1) (691 SE2d 626) (2010), quoting State v. Fisher, 293 Ga. App. 228, 230 (666 SE2d 594) (2008).

         (Punctuation omitted.) Buford v. State, 312 Ga. App. 411, 413 (1) (718 SE2d 605) (2011), quoting State v. Norris, 281 Ga. App. 193, 196 (635 SE2d 810) (2006).

        Crawford v. State, 246 Ga. App. 344, 345 (1) (540 SE2d 300) (2000).

       270 Ga. App. 676 (607 SE2d 899) (2004).

       See id. at 678-679 (1).

       See Evans v. State, 274 Ga. App. 845, 846-847 (619 SE2d 341) (2005) (affirming admission of results of chemical testing administered at the hospital after officer advised driver of his implied consent rights before writing a uniform traffic citation for DUI).

       (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

       See id.; Coghlan v. State, 319 Ga. App. 551, 553-554 (737 SE2d 332) (2013) (DUI less safe); Dotson v. State, 276 Ga. App. 418, 419-420 (1) (a), (b) (623 SE2d 252) (2005) (DUI and driving on the wrong side of the road).


author: ELLINGTON, Presiding Judge.

text:
    A14A0092.
    LOPEZ v. THE STATE.
    (757 SE2d 436)
   ELLINGTON, Presiding Judge.

A Catoosa County jury found Emanuel Lopez guilty of using a computer internet service to seduce or entice another person believed by him to be a child for the purpose of committing child molestation and aggravated child molestation, in violation of Georgia’s Computer or Electronic Pornography and Child Exploitation Prevention Act of 2007, OCGA § 16-12-100.2 (d); and attempting to commit a felony, OCGA §§ 16-4-1; 16-6-4 (c) (aggravated child molestation). Following the denial of his motion for a new trial, Lopez appeals, contending that the indictment and verdict were contrary to law because there was no actual victim; that the prosecution constitutes an unconstitutional criminalization of thoughts; that venue was not proper in Catoosa County; that the trial court erred in excluding expert opinion evidence that he lacked any predisposition to engage in sexual relations with underaged persons and that the State improperly enticed him; that the State failed to rebut his defense of entrapment; and that the trial court improperly excluded him from critical stages of the proceedings. For the reasons explained below, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows the following. In June 2010, a detective with the Catoosa County Sheriff’s Department, working in conjunction with the FBI’s “Innocent Images” task force, placed an ad in the “Women Seeking Men” personals section of the Craigslist website posing as “Sara.” Craigslist requires that a poster in that section confirm that she is at least 18 years old. “Sara” described herself as “lonely and bored” since school was out and as hoping to “meet guys” and wanting someone who could “take [her] away.” Lopez, using the e-mail address ‘latin.love69@hve.com” and identifying himself as “Emanuel,” responded to the ad, promising to “take [her] and do something exciting.” He asked for personal details, including her age. “Sara” answered that she was 14 years old; she said she would understand if he had “a problem with the age thing” but if he was “kool” he should e-mail her back. Lopez responded that he did not have a problem with her age and would treat her like an adult. He said he wanted to get to know her and would love to see a “dirty” picture of her.

Over the next week, they continued to exchange e-mails, and Lopez asked if they could meet in person. In one e-mail, Lopez said, “I want to meet you and talk to you and know about you. Sweety, I believe you are the sweetest person I know and you are real. But, you know, because of your age I have to be careful.” He suggested that they get ice cream, take a walk and talk to get acquainted and said that he “would like to caress [her] a little, a hug, perhaps hold [her] hand, and just be with [her].” “Sara” responded that she thought he wanted to treat her like a woman, not like “a kid.” She insisted that she did not want just “cyber” interaction and that “Emanuel” should just “move on” if he only wanted to talk. Lopez then suggested that she wait in her bedroom when she was alone at home, wearing her sexiest outfit. He described a seduction scene in explicit detail, that included taking her nipple in his mouth, exploring her genitals with his hand, and performing oral sex on her.

They arranged to speak by telephone, and a female officer pretended to be the 14-year-old “Sara.” In a following e-mail, “Sara” suggested that they meet at her aunt’s house, when no one would be home, and asked “Emanuel” to bring wine coolers for them to drink and contraceptive protection. Lopez arrived at the time and place designated for his rendezvous with “Sara.” Officers arrested Lopez and searched him and his vehicle; he had four condoms and personal lubricant in his possession.

After his arrest, Lopez gave task force officers a statement in which he admitted that he really thought he was communicating with a 14-year-old girl. Lopez admitted that he drove two hours to meet with “Sara” and that he went prepared to have sexual relations with her. He admitted that, “right this minute” (at the time officers were interviewing him), if “Sara” were real he “would be molesting a 14-year-old girl.”

The indictment charged Lopez with violating OCGA § 16-12-100.2 (d), by “intentionally utiliz[ing] a computer Internet service to attempt to seduce and entice ‘Sara,’ a person believed by [him] to be a child, to commit child molestation or aggravated child molestation[,]” (Count l) and with criminal attempt, in that he took a substantial step toward the commission of aggravated child molestation when he “engage [d] in sexually explicit communications with ‘Sara,’ a person believed by [him] to be a fourteen (14) year old female, describe[d] his desire to place his mouth on her vaginal area, arrange [d] a meeting with ‘Sara,’ and arrive[d] at said meeting,” (Count 2).

At trial, Lopez testified in his own defense and claimed that he thought he was communicating with an adult woman who was interested in role playing. He claimed that his intention was to go and “meet the real person that [he] thought [he] was talking to.” He testified that, when he met “Sara” in person, if she had actually turned out to be underaged, he would have walked away from the situation and that he would not have had sex with her. When confronted with his pretrial statement, he claimed that his answers to the officers’ questions had been inaccurate or incomplete because he was too nervous and scared to think clearly.

1. Lopez contends that the indictment and verdict are contrary to law because there was no actual victim and the victim described in the complaint, a 14-year-old female named “Sara,” was a fiction created by law enforcement agents.

(a) Although OCGA § 16-12-100.2 (d) references an underlying purpose of the prohibited conduct, including, as in this case, child molestation, the principal act proscribed is an act of communication, that is, the solicitation or enticement of another for the underlying purpose. Bolton v. State, 310 Ga. App. 801, 804-805 (1) (714 SE2d 377) (2011). With regard to the victim, by its plain terms the statute is violated if the defendant believes the victim to be a child, even if the person the defendant actually communicates with is not a child. Id. Furthermore, the statute expressly provides that “[t]he sole fact that an undercover operative or law enforcement officer was involved in the detection and investigation of an offense under [the] Code section shall not constitute a defense.” OCGA § 16-12-100.2 (g). For these reasons, Lopez’s argument lacks merit with regard to Count 1.

(b) To convict Lopez of criminal attempt to commit aggravated child molestation as indicted, the State was required to prove that he took a substantial step toward doing any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or himself and that the act involved sodomy. Castaneira v. State, 321 Ga. App. 418, 423-424 (2) (740 SE2d 400) (2013); Logan v. State, 309 Ga. App. 95, 99-100 (2) (a) (709 SE2d 302) (2011); see OCGA § 16-6-4. We have held that a conviction of attempted child molestation is authorized where the evidence shows that the defendant communicated with an adult whom the defendant believed to be a child under 16 years old and took substantial steps to meet with that person to engage in sexual activity that would constitute child molestation. Brown v. State, 321 Ga. App. 798, 800 (1) (743 SE2d 474) (2013); Castaneira v. State, 321 Ga. App. at 423-424; Logan v. State, 309 Ga. App. at 99-100 (2) (a); Smith v. State, 306 Ga. App. 301, 302 (1) (702 SE2d 211) (2010). Accordingly, Lopez’s argument lacks merit as to Count 2.

2. Lopez contends that, as applied, OCGA § 16-12-100.2 (d) (1) unconstitutionally restricts speech between consenting adults which is sexual in nature, but not necessarily obscene, “upon the sole justification that one of the adults is pretending to be a child.” He contends that, because the statute requires that a defendant have believed that he was communicating with a child, the law seeks to regulate and criminalize the thoughts of a human being. Under OCGA § 16-12-100.2 (d) (1), however, even if a defendant believes that he or she is communicating with a child, a communication is prohibited only if the defendant engages in the communication for a prohibited underlying purpose, in this case, seducing or enticing a child so that the defendant can commit an act of child molestation. See Division 1 (a), supra. Lopez’s argument that he was prosecuted under OCGA § 16-12-100.2 (d) (1) solely for the content of his thoughts fails.

3. Lopez contends that law enforcement agents induced him to enter Catoosa County by subterfuge for the purpose of obtaining venue and, therefore, that venue was not proper in Catoosa County, citing McCarty v. State, 152 Ga. App. 726, 726-727 (1) (263 SE2d 700) (1979). First, the fact that Lopez transmitted the e-mails to “Sara” in Catoosa County constituted use of computer online services there for purposes of venue. Selfe v. State, 290 Ga. App. 857, 861-862 (2) (660 SE2d 727) (2008). Furthermore, Lopez’s travel to Catoosa County was an integral part of his plan to rendezvous with and then molest the 14-year-old girl he believed had been communicating with him. Venue was proper. Id.; Jones v. State, 247 Ga. App. 849, 850-851 (545 SE2d 145) (2001) (Where a confidential informant working with officers in Cherokee County asked a suspected drug dealer located in Atlanta to deliver cocaine to her in Cherokee County and officers arrested the suspect after he arrived in Cherokee County to make the delivery, the suspect possessed cocaine with intent to distribute in Cherokee County. Therefore, venue there was proper.); see also Brown v. State, 321 Ga. App. at 801-802 (2) (rejecting the argument of a Tennessee resident that the State of Georgia lacked jurisdiction to prosecute him for computer child exploitation and attempted child molestation because he had no ties to Georgia before being lured to this state by law enforcement officers who had posted an ad on Craigslist posing as a 14-year-old girl).

4. Lopez contends that his psychological state, specifically, whether he was predisposed to seek sexual relations with minors, was relevant to his defense of entrapment. Lopez contends that the trial court therefore erred in excluding expert opinion evidence that the State improperly enticed him and that he lacks any predisposition to engage in sexual relations with underaged persons.

Lopez proffered the testimony of Dave Davis, M.D., a forensic psychiatrist who interviewed Lopez and conducted a forensic psychological and psychiatric examination. Lopez intended to call Dr. Davis to testify that, in his opinion, Lopez did not have any psychological tendencies to have sex with minor children and that the police e-mails had the psychological effect of enticing him to commit such crimes.

“If [a] defendant establishes a prima facie case of entrapment, the burden is then upon the State to disprove entrapment beyond a reasonable doubt.” (Punctuation and footnote omitted.) Millsaps v. State, 310 Ga. App. 769, 773 (3) (714 SE2d 661) (2011). One of the elements of entrapment is that “the defendant was not predisposed to commit the crime.” (Footnote omitted.) Id. at 772-773 (3). Under Georgia law, “where (a) the path from evidence to conclusion is not shrouded in the mystery of professional skill or knowledge, and (b) the conclusion determines the ultimate issues of fact in a case, the jury must make the journey from evidence to conclusion without the aid of expert testimony.” (Citations and punctuation omitted.) Williams v. State, 254 Ga. 508, 510 (2) (330 SE2d 353) (1985). In general, expert testimony that a defendant does not have the psychological characteristics of a person who is predisposed to having sexual contact with under aged children invades the province of the jury as to the ultimate issue, that is, the defendant’s guilt or innocence, and is properly excluded. Duncan v. State, 232 Ga. App. 157, 161-162 (4) (500 SE2d 603) (1998); Hudson v. State, 218 Ga. App. 671, 674-675 (4) (462 SE2d 775) (1995). We conclude that the trial court did not abuse its discretion in ruling that whether Lopez would have committed the crime charged absent the inducement of law enforcement officers was a question the jury could and must resolve without the assistance of expert opinion evidence and that Dr. Davis’s opinions on the subject were therefore inadmissible.

5. Lopez contends that the State failed to rebut his defense of entrapment. “The determination of whether the defendant was entrapped is for the jury unless the uncontroverted evidence demands a finding of entrapment.” (Punctuation and footnote omitted.) Logan v. State, 309 Ga. App. at 98 (1) (a). As recounted above, the evidence in this case authorized the jury to find that, in response to an e-mail from Lopez suggesting that he and the supposedly 14-year-old girl share ice cream and hold hands, “Sara” indicated that, unless “Emanuel” wanted a relationship that went beyond Internet talk and would treat her as an adult, he should “move on.” Lopez immediately escalated the interchange by explicitly describing sexual acts that he proposed performing for her, discussing how they would meet in person, and traveling to meet with her, equipped with condoms and lubricant and with the intention of having sex. The evidence does not demand a finding of entrapment. Millsaps v. State, 310 Ga. App. at 773-774 (3); Logan v. State, 309 Ga. App. at 98 (1) (a).

6. Lopez contends that, on several occasions during voir dire and trial, he was excluded from discussions at the bench between the judge, the prosecutor, and his defense counsel, in violation of his constitutional right to be present during all critical stages of the proceedings. The trial transcript suggests that Lopez did not participate in some bench conferences, and, at the hearing on his motion for a new trial, he affirmatively testified that he did not do so. Therefore, there is some support in the record for Lopez’s argument that he was not “present” during all stages of the trial. The judge who presided over Lopez’s trial found, however, that he had advised Lopez of his right to participate in any bench conference. A defendant is not entitled to a new trial if he acquiesced in limited trial proceedings that occurred in his absence. See Zamora v. State, 291 Ga. 512, 517-520 (7) (731 SE2d 658) (2012) (Acriminal defendant is entitled to be present, and see and hear, all critical stages of the proceedings against him or her, and a discussion about dismissing a juror was such a critical stage. A new trial was not warranted on this basis, however, where the defendant acquiesced in the limited trial proceedings that occurred in his absence.). Furthermore, Lopez has not shown what subjects were discussed at the bench conferences that occurred outside of his presence; therefore, he has not shown any meaningful relationship between his presence or absence at the conferences and his opportunity to defend against the charges against him. Heywood v. State, 292 Ga. 771, 774 (3) (743 SE2d 12) (2013) (A defendant’s absence from a bench conference involving a logistical or procedural matter or an evidentiary objection or other question of law, where the defendant’s presence would be useless, does not bear a reasonably substantial relation to the defendant’s opportunity to defend against the charges against him or her and, therefore, does not implicate the defendant’s constitutional right to be present at proceedings.); Smith v. State, 319 Ga. App. 590, 596-597 (6) (737 SE2d 700) (2013) (accord). The trial court did not err in denying Lopez’s motion for a new trial on this basis.

Decided April 2, 2014

McNeill Stokes, for appellant.

Herbert E. Franklin, Jr., District Attorney, Christopher A. Amt, Assistant District Attorney, for appellee.

Judgment affirmed.

Phipps, C. J., and McMillian, J., concur.

       Although Lopez filed his motion for a new trial a few days before the trial court entered a written judgment of conviction, a Georgia appellate court will review on the merits an appeal from the denial of a prematurely filed motion for a new trial in a criminal case; the motion is deemed to ripen upon the entry of the judgment of conviction. Rockholt v. State, 291 Ga. 85, 86, n. * (727 SE2d 492) (2012); Chumley v. State, 282 Ga. 855, n. * (655 SE2d 813) (2008); Sparks v. State, 277 Ga. 72, 73, n. 1 (586 SE2d 645) (2003); Juhan v. State, 322 Ga. App. 620, 621, n. 3 (744 SE2d 910) (2013). Cf. Tremble v. Tremble, 288 Ga. 666, 668 (1) (706 SE2d 453) (2011) (In a civil case, a motion for a new trial that was filed prior to the entry of the judgment on the verdict was premature and invalid, and no amendment could be filed to such a void motion.); Dae v. Patterson, 295 Ga. App. 818, 819-820 (1) (673 SE2d 306) (2009) (A motion for new trial that was filed prior to the entry of the judgment on the verdict was premature and invalid. Therefore, there was no error in denying it, and all errors asserted on appeal that were necessarily premised on the denial of the motion for new trial could have no merit.).

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

       OCGA § 16-12-100.2 (d) (1) provides, as pertinent to the indictment:
      It shall be unlawful for any person intentionally... to utilize a computer ... Internet service... to seduce... or entice... another person believed by such person to be a child ... to commit any illegal act by, with, or against a child as described in . . . [OCGA §] 16-6-4, relating to the offense of child molestation or aggravated child molestation [.]
      See also OCGA § 16-12-100.2 (b) (1) (As used in the Computer or Electronic Pornography and Child Exploitation Prevention Act of 2007, a “child” is “any person under the age of 16 years.”).

       In Bolton v. State, we explained the similarities between the computer child exploitation offense set out in OCGA § 16-12-100.2 (d) and the offense of enticement of a child under OCGA § 16-6-5 (a), which provides that “[a] person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.”
      The statutory language in both OCGA §§ 16-6-5 (a) and 16-12-100.2 (d) (1) similarly proscribe the solicitation or enticement of a child for the underlying purpose of child molestation. In the context of OCGA § 16-6-5 (a), we have held that a conviction of the offense need not be based upon evidence that an act of indecency or child molestation was accomplished or even attempted. Rather, the evidence need only show that an act of indecency or child molestation was the intended motivation for the enticement.
      (Citations and punctuation omitted.) 310 Ga. App. at 804-805 (1).

       See Bolton v. State, 310 Ga. App. at 804-805 (1) (The evidence supported the defendant’s conviction under OCGA § 16-12-100.2 (d) (1) where he believed he was corresponding online with a 15-year-old girl and he solicited her to engage in sexual intercourse.); Logan v. State, 309 Ga. App. 95, 100 (2) (b) (709 SE2d 302) (2011) (The evidence supported the defendant’s conviction under OCGA § 16-12-100.2 (d) (1) where he believed he was corresponding online with a 14-year-old girl and he encouraged her to meet him to engage in sexual intercourse and oral sodomy.).

       See Stanley v. Georgia, 394 U. S. 557, 564-566 (89 SCt 1243, 22 LE2d 542) (1969) (The United States Constitution protects the “right to receive information and ideas, regardless of their social worth” and “the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy.. . . Whatever the power of the state to control public dissemination of ideas inimical to the public morality, it cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.”) (citation omitted).

       In McCarty v. State, we held that, where undercover officers from Muscogee County negotiated a drug purchase in a suspect’s home county, Sumter County, took possession of the drugs there, told the suspect that they would pay him in Muscogee County, and then drove the suspect in their car to Muscogee County solely in order to effect an arrest in their own jurisdiction, the officers’ activities in “maneuvering” the suspect there via “a subterfuge” was insufficient to confer venue in that county because police officers cannot be permitted to create an essential element of a crime. 152 Ga. App. at 726 (1).

       OCGA § 16-3-25 provides:
      A person is not guilty of a crime if, by entrapment, his conduct is induced or solicited by a government officer or employee, or agent of either, for the purpose of obtaining evidence to be used in prosecuting the person for commission of the crime. Entrapment exists where the idea and intention of the commission of the crime originated with a government officer or employee, or with an agent of either, and he, by undue persuasion, incitement, or deceitful means, induced the accused to commit the act which the accused would not have committed except for the conduct of such officer.

      (Emphasis supplied.) See also Keaton v. State, 253 Ga. 70, 72 (316 SE2d 452) (1984) (The defendant’s “innocent state of mind,” that is, his or her lack of a predisposition to commit the crime, is a key element to the defense of entrapment.); Wagner v. State, 220 Ga. App. 71, 72 (467 SE2d 385) (1996) (“Because the concept of entrapment involves the predisposition of the accused, the question, like all fact questions, is generally one for the jury to decide.”) (citation and punctuation omitted).

       Where a defendant accused of molestation planned to call an expert to testify, based on psychological tests, that the defendant did not have the characteristics of a pedophile, we concluded that
      there is no authority for the admission of an expert opinion that the defendant who is on trial for sex crimes against a child is or is not a pedophile. The profile testimony sought to be introduced by the defendant goes to the credibility and believability of his own testimony that he did not commit the acts charged and further speaks to the ultimate fact of whether he committed those acts. From the extensive testimony and cross-examination of the various witnesses at trial, the jury, without the help of expert opinion, could have determined the credibility and truthfulness of all the witnesses and could have formed independent opinions as to the victim’s truthfulness and the defendant’s capability of performing the acts he was accused of. These determinations did not involve unique and mysterious areas of human response necessitating expert testimony. There was no error in excluding this testimony, because such testimony invades the province of the jury as to the ultimate issue, i.e., the defendant’s guilt or innocence.
      (Citation and punctuation omitted; emphasis in original.) Duncan v. State, 232 Ga. App. at 161-162 (4).