text:
    A15A0239.
    IN THE INTEREST OF A. H., a child.
    (774 SE2d 163)
   Branch, Judge.

A. H. appeals from an order of the juvenile court of Douglas County, which granted the State’s request for a 48-hour continuance of A. H.’s adjudicatory hearing. A. H. contends that the juvenile court erred in granting the motion for a continuance because it failed to consider the factors set forth in OCGA § 15-11-110 (a) and because the State failed to show good cause for a continuance. For reasons explained more fully below, we vacate the order of the juvenile court granting the continuance and remand for a determination of whether, under the circumstances of this case, the reason proffered by the State for a continuance constituted good cause for delaying the adjudicatory hearing.

The relevant facts are undisputed and the record shows that on or about May 2, 2014, a then 16-year old A. H. was arrested following a police chase of a stolen car in Douglas County. According to the report of the investigating officer, during the chase, the driver of the stolen car rammed a police vehicle and law enforcement ended the chase by performing a precision immobilization technique on the stolen car. At that point, all four occupants of the car, including A. H., abandoned the vehicle and fled on foot. A. H., who had been seated in the front passenger seat, was holding a pistol as he exited the vehicle. When he raised the pistol slightly, he was shot and injured by a Douglas County deputy. After police apprehended A. H., he was taken to Grady Hospital for treatment and was subsequently placed in detention on May 6, 2014.

On May 7, 2014, the juvenile court held the detention hearing required by OCGA § 15-11-472. A probation officer with the Bibb County Department of Juvenile Justice (“DJJ”) and a case manager with the Bibb County Department of Family and Children Services (“DFACS”) were present at that hearing, and they informed the court that A. H. had been placed in the legal custody of DFACS at some time prior to the incident in question and that he was currently in the restrictive custody of DJJ. At the outset of the hearing, the prosecutor asked that A. H.’s detention be continued. Both the case manager and the probation officer concurred in this request. The probation officer explained that even in the absence of the current charges, continued detention would be required because A. H. had been reported as a runaway from the DJJ group home where he had been placed. The court stated that in light of the evidence presented, including the hold on A. H. as a result of his current committal to DJJ, probable cause existed for A. H.’s continued detention.

On May 9,2014, the State filed a delinquency petition as to A. H., charging him with theft by receiving, theft by taking, fleeing a police officer, and possession of a firearm during the commission of a felony. The trial court scheduled an adjudicatory hearing for May 19, 2014, and it provided both the DJJ probation officer and the DFACS case manager with notice of this fact.

At the beginning of the May 19 proceeding, a representative of the Douglas County district attorney’s office moved for a 48-hour continuance of the adjudicatory hearing. In support of this request, the district attorney’s office stated that it needed additional time to review the case and decide whether to file a motion to transfer the case to superior court, where A. H. would be tried as an adult. Counsel for A. H. objected to a continuance and stated that A. H. was prepared to admit to the charges. The juvenile court, however, refused to take an admission from A. H., noting that Bibb County DFACS was A. H.’s legal custodian and that no DFACS representative had appeared at the hearing. The court then explained that it could not “take an admission from a child without their legal custodian being here.” A. H.’s attorney argued that A. H. was in the joint legal custody of both DFACS and DJJ; that the probation officer from Bibb County DJJ was present; and that the presence of one legal custodian was sufficient to allow the adjudicatory hearing to proceed. To support this argument, the lawyer for A. H. requested permission to call the probation officer as a witness. The juvenile court responded that A. H. was “not in the legal custody of DJJ. . . . That’s not a legal custodial placement.” The court then indicated that it would allow the probation officer to testify, but stated that if the probation officer testified that DJJ had legal custody of A. H., she would be “incorrect,” as DJJ “do[es] not maintain legal custody of a child.”

A. H.’s lawyer then called the probation officer to the stand, at which point the juvenile court directed the attorney to “narrowly ask your questions, because I already know the legal and proper answer.” When asked whether DJJ had legal custody of A. H., the probation officer responded that she thought both DJJ and DFACS had legal custody of A. H. and that it was her “understanding” that DJJ was “one of” A. H.’s legal custodians. The juvenile court rejected the probation officer’s testimony, declaring, “I know ... the answer.... I have to have DFACS here” before proceeding with the adjudicatory hearing. The court then granted a 48-hour continuance and ordered A. H.’s further detention.

On May 21, 2014, the State filed a motion to transfer the case to superior court. Later that day, the juvenile court convened the adjudicatory hearing, at which both the DFACS case manager and the DJJ probation officer appeared. In light of the motion to transfer, however, the court declined to proceed with the adjudication hearing. Instead, it scheduled a hearing on the motion to transfer for June 23, 2014, and entered an order requiring a mental health evaluation of A. H. The court also ordered the continued detention of A. H.

On June 4, 2014, A. H. applied for a certificate of immediate review of the juvenile court’s grant of the State’s motion for a continuance. The lower court issued the requested certificate and this Court subsequently granted A. H.’s application for an interlocutory appeal.

1. In his first claim of error, A. H. argues that the juvenile court erred when, in granting the request for a continuance, it failed to consider the factors set forth in OCGA § 15-11-110 (a). This statutory provision, however, is inapplicable to the current case. OCGA § 15-11-110, which is found in Article 3 of the Juvenile Code, applies to dependency proceedings and not to delinquency proceedings. See OCGA § 15-11-100 (1) (the purpose of Article 3 is “[t]o assist and protect children whose physical or mental health and welfare is substantially at risk of harm from abuse, neglect, or exploitation and who may be further threatened by the conduct of others by providing for the resolution of dependency proceedings in juvenile court”). Accordingly, A. H.’s claim of error based on the juvenile court’s failure to apply OCGA § 15-11-110 (a) is without merit.

2. Continuances in delinquency proceedings are governed by OCGA § 15-11-478, which provides:

A continuance shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the moving party at the hearing on the motion. Whenever any continuance is granted, the facts which require the continuance shall be entered into the court record.

As the statutory language indicates, the question of whether good cause exists for a continuance is a factual one, “which must be judged according to the particular circumstances of the case.” Scriven v. State of Ga., 330 Ga.App. 826, 827 (769 SE2d 569) (2015) (because the statute governing requests to examine sealed adoption records did not define the term “good cause,” the existence of good cause was a factual question) (citation omitted).

In this case, the court stated on the record that it was finding good cause for a continuance for two reasons. First, the court stated that it could not take an admission from A. H. without his legal custodian being present. The court then stated that, as a matter of law, D JJ did not have legal custody of A. H. Neither of these findings is correct.

Although the State argues otherwise, under the current Juvenile Code, the parent, guardian, or legal custodian of an allegedly delinquent child is not a party to a delinquency proceeding; the only parties are the State and the allegedly delinquent child. OCGA § 15-11-474 (a) (“[a]n alleged delinquent child and the state shall be parties at all stages of delinquency proceedings”). Although not a party, the parent, guardian, or legal custodian of any child who is the subject of a delinquency petition has “the right to notice, the right to be present in the courtroom, and the opportunity to be heard at all stages of [the] delinquency proceedings.” OCGA § 15-11-474 (b). Nothing in the Code, however, provides that an adjudicatory hearing may not go forward if the child’s parent, guardian, or legal custodian declines to attend the hearing. Thus, so long as a child’s legal custodian is afforded his right to notice of all delinquency proceedings, he may waive his right to be present and to be heard at those proceedings. See Kesterson v. Jarrett, 291 Ga. 380, 385 (2) (b) (728 SE2d 557) (2012) (“[l]ike most other rights, the right to be present may be waived or forfeited by a party”); In the Interest of I. W., 304 Ga. App. 225, 227 (1) (695 SE2d 739) (2010) (father could not assert error based on fact that juvenile court proceeded with a deprivation hearing despite the father’s absence; the father “knew of the impending hearing and was afforded an opportunity to present his evidence and objections, but he chose not to participate” and thereby waived his right to be heard). A waiver of such rights occurs where, as here, a legal guardian who has received notice of a delinquency hearing elects not to appear at that proceeding. I. W., 304 Ga. App. at 227 (1). See also Cormier v. Cormier, 280 Ga. 693, 694 (1) (631 SE2d 663) (2006) (husband in a divorce proceeding waived his right to be present and to be heard at trial where he “was properly informed and had actual knowledge of the trial date, but... chose not to participate”); In the Interest of A. G. I., 246 Ga. App. 85, 86 (1) (539 SE2d 584) (2000) (despite the fact that the mother was a party to the proceeding to terminate her parental rights, she could nevertheless “waive the right to be present during trial proceedings by voluntarily absenting herself from the court”) (footnote omitted). Accordingly, given that DFACS waived its right to be present and to be heard at the adjudicatory hearing, the trial court erred when it found that it could not take A. H.’s admission without A. H.’s legal guardian being present.

The trial court also erred when it found that DJJ did not have legal custody of A. H. The Juvenile Code defines “legal custodian” as including “[a] public or private agency or other private organization licensed or otherwise authorized by law to receive and provide care for a child to which legal custody of such child has been given by order of a court.” OCGA § 15-11-2 (42) (B). Among the rights granted to a legal custodian are

the right to physical custody of a child, the right to determine the nature of the care and treatment of such child, including ordinary medical care, and the right and duty to provide for the care, protection, training, and education and the physical, mental, and moral welfare of such child, subject to the conditions and limitations of the [custody] order. . . .

OCGA § 15-11-30. Given these statutory provisions, we must conclude that DJJ is a legal custodian of any juvenile committed to its restrictive custody following a delinquency adjudication. Such custody results from a court order, gives DJJ the right to physical custody of the child, and obligates DJJ to provide the child with care (including medical care), protection, training, and education.

Here, the record shows that prior to his arrest on the current charges, A. H. had been adjudicated delinquent, committed to DJJ, and placed in restrictive custody. See OCGA § 15-11-2 (64) (“ ‘[Restrictive custody’ means in the custody of DJJ for purposes of housing in a secure residential facility or nonsecure residential facility”). At that time, DJJ became a legal custodian of A. H. See Dept. of Human Resources v. Johnson, 264 Ga. App. 730 (592 SE2d 124) (2003) (noting that a juvenile offender in restrictive custody was “in the joint legal custody of DJJ and [DFACS]”) (punctuation omitted); OCGA § 15-11-602 (c) (1), (d) (1) (a juvenile court dispositional order committing a delinquent child to restrictive custody must provide that the child is “placed in DJJ custody”). See also In the Interest of J. S., 283 Ga. App. 448, 449-450 (641 SE2d 682) (2007) (DJJ does not become a child’s legal custodian until the child is committed to DJJ restrictive custody following an adjudication of delinquency).

Decided June 25, 2015.

James J. Anagnostakis, for appellant.

Brian K. Fortner, District Attorney, Steven C. Knittel, Barry H. Wood, James A. Dooley, Assistant District Attorneys, for appellee.

Given that the legal conclusions on which the juvenile court based its finding of good cause were erroneous, we must vacate the order granting the requested continuance. In doing so, however, we note that the juvenile court did not consider whether the State’s proffered reason for a continuance constituted good cause. Accordingly, we remand the case so that the juvenile court may consider whether, under the circumstances of this case (including A. H.’s objection to the continuance and his expressed desire to admit to the charged crimes), the State’s request for additional time to determine whether to file a removal petition constituted the good cause necessary for a continuance.

Judgment vacated and case remanded with direction.

Andrews, P. J., and Miller, J., concur.

       This technique, also known as a PIT maneuver, is a tactic by which a pursuing car can cause a fleeing car to turn sideways. This maneuver usually causes the driver of the fleeing car to lose control of his vehicle and come to a stop.

       Whenever a juvenile defendant is placed in preadjudication custody, OCGA § 15-11-472 requires the juvenile court to hold a hearing on the issue of whether detention should be continued prior to adjudication. Such a hearing must take place within two business days after a juvenile is taken into custody without an arrest warrant and must take place within five business days after a juvenile is taken into custody pursuant to an arrest warrant. OCGA § 15-11-472 (a).

       A. H. was not represented by an attorney at the detention hearing because the circuit public defender’s office had a conflict resulting from its representation of another of the juveniles that had been riding in the stolen car with A. H. On appeal, however, A. H. does not challenge the juvenile court’s finding that probable cause existed for his continued detention.

       Georgia law provides that before hearing a motion to transfer, the juvenile court must determine, inter alia, that the child in question “is not committable to an institution for the developmentally disabled or mentally ill.” OCGA § 15-11-561 (a) (2).

       That Code section provides:
      Upon request of an attorney for a party, the court may continue any hearing under this article beyond the time limit within which the hearing is otherwise required to he held; provided, however, that no continuance shall be granted that is contrary to the interests of the child. In considering a child’s interests, the court shall give substantial weight to a child’s need for prompt resolution of his or her custody status, the need to provide a child with a stable environment, and the damage to a child of prolonged temporary placements.

       The good cause standard for granting a continuance did not exist under the prior Juvenile Code. Rather, until the new Juvenile Code became effective, the decision to grant a continuance was within the discretion of the juvenile court. See In the Interest of R. D. F., 266 Ga. 294, 295 (1) (466 SE2d 572) (1996); In the Interest of A. S., 293 Ga.App. 710, 711 (1) (667 SE2d 701) (2008).

       To the extent that A. H. is arguing that the juvenile court’s failure to set forth these findings in writing requires us to conclude that no good cause existed for the continuance, we find that argument to be without merit. As the plain language of OCGA § 15-11-478 makes clear, the juvenile court is not required to enter a written order containing factual findings every time it grants a continuance. Rather, the court just has to make a factual finding as to good cause on the record; thus, the required factual findings may be pronounced orally at a hearing that is being transcribed.

       Compare Sanchez v. Walker County Dept. of Family and Children Svcs., 237 Ga. 406, 410 (229 SE2d 66) (1976) (“the [1971 Juvenile] Code recognizes that the parent is a ‘party’ to proceedings involving his child”) (interpreting Ga. Code Ann. § 24A-2001 (a) (1971)), disapproved on other grounds, R. D. F., 266 Ga. at 296 (3).

       Similarly, D JJ is also entitled to notice of the disposition hearing. OCGA § 15-11-474 (c).

       We are not holding that the absence of a child’s parent, guardian, or legal custodian could never constitute good cause for a continuance. We are holding only that the trial court erred when it found that despite A. H.’s expressed desire to enter an admission, the court could not, as a matter of law, accept that admission in the absence of A. H.’s legal custodian.


source: Caselaw Access Project

author: MCMILLIAN, Judge.

license: Public Domain

text:
    A15A0346.
    GEORGIA DEPARTMENT OF TRANSPORTATION v. WYCHE.
    (774 SE2d 169)
   MCMILLIAN, Judge.

Defendant Georgia Department of Transportation (“DOT’) appeals the trial court’s order denying its motion to dismiss the complaint of Plaintiff Mary Wyche, individually and as surviving mother of Larry J. Bowen, Jr., deceased. Because we find that Wyche’s claims against the DOT are barred by the doctrine of sovereign immunity for the reasons that follow, we reverse.

“We review de novo a trial court’s ruling on a motion to dismiss based on sovereign immunity grounds, which is a matter of law. Factual findings are sustained if there is evidence supporting them.” (Citation and punctuation omitted.) Bd. of Regents of the Univ. System of Ga. v. Canas, 295 Ga. App. 505, 509 (3) (672 SE2d 471) (2009).

So viewed, the record shows that Bowen was killed on the night of May 4, 2005 while employed as a construction worker by Reeves Construction Company (“Reeves”). Reeves was performing paving work on Eisenhower Parkway in Macon, Georgia pursuant to a contract with the DOT for Project No. STP-3201(9). At approximately 11:20 p.m., Bowen was standing in the area of the intersection of Eisenhower Parkway and Log Cabin Drive when he was struck by a vehicle traveling south on Log Cabin Drive. He was then struck and dragged through the intersection by a second vehicle also traveling southbound on Log Cabin Drive. Tragically, he died at the scene. The drivers later deposed that they were proceeding through a green light at the intersection, which was “very dark,” and that they did not see any signs indicating construction work was underway at the intersection. That evening, the only DOT employee present was Johnny Moss, a field materials inspector, who had just arrived to perform asphalt testing and was still stopped at the traffic light at the time of the accident. Also at the scene was Cedric Howard, an employee of Moreland Altobelli Associates, Inc. (“Moreland”), which was under contract with the DOT to perform inspections and ensure that Reeves was in compliance with the DOT contract in all respects, including safety requirements.

On May 2, 2007, Wyche filed a complaint against the DOT and Moreland, asserting claims of ordinary and professional negligence against both defendants, alleging that their lack of inspection and planning left drivers “without positive guidance, conspicuous, and unambiguous road signage and appropriate lighting.” With respect to the DOT, Wyche alleged that the DOT failed to inspect and enforce its contract with Moreland when it did not provide appropriate signage and lighting at the intersection and failed to oversee and train “its employees and agents as to appropriate inspection procedures.” The DOT was subsequently granted leave to file a third-party complaint against Reeves for indemnification under their contract.

In its third-party complaint, the DOT cites Section 150 of the contract’s Special Provisions, which “as supplemented by the Plans, Specifications, and Manual on Uniform Traffic Control Devices (MUTCD),” constitutes the project’s “Traffic Control Plan.” The DOT also cites subsection 150.01 of the contract, which provides that Reeves is responsible for “ ‘furnishing, installing, maintaining, and removing necessary traffic signs, barricades, lights, signals, cones, pavement markings and other traffic control devices and shall include flagging and other means for guidance and protection of vehicular and pedestrian traffic through the Work Zone.’ ”

On March 7, 2014, the DOT filed a motion to dismiss on the grounds of sovereign immunity. Following a hearing, the trial court denied the motion, and this appeal followed.

1. In its first enumeration of error, the DOT asserts that the trial court erred in finding a waiver of sovereign immunity for the negligent acts committed by Reeves and Moreland, as independent contractors. The Georgia Constitution provides that sovereign immunity extends to the State and all of its departments and agencies. Ga. Const, of 1983, Art. I, Sec. II, Par. IX (e). This sovereign immunity can only be waived by a constitutional provision or an Act of the General Assembly that specifically provides for such waiver. Id. The Georgia Tort Claims Act (“GTCA”) is one such Act and provides for a limited waiver of sovereign immunity for the torts of State employees while acting within the scope of their employment. See OCGA § 50-21-20 et seq.; Johnson v. Ga. Dept. of Human Resources, 278 Ga. 714, 715 (1) (606 SE2d 270) (2004).

In determining whether there has been a waiver of sovereign immunity, we must keep in mind that, “in acting for the public good and in responding to public need, state government must provide a broad range of services and perform a broad range of functions throughout the entire state, regardless of how much exposure to liability may be involved.” (Citations omitted.) Bd. of Regents of the Univ. System of Ga. v. Brooks, 324 Ga. App. 15, 17 (1) (749 SE2d 23) (2013). For this reason, our legislature determined that “the exposure of the state treasury to tort liability must therefore be limited, and that state government should not have the duty to do everything that might be done.” (Citation omitted.) Id. And, “the doctrine of sovereign immunity requires that the conditions and limitations of the statute that waives immunity be strictly followed.” (Citation and punctuation omitted.) Id. Moreover, “[t]he party seeking to benefit from the waiver of sovereign immunity has the burden of proof to establish waiver.” Id. at 16.

Wyche asserts that because the DOT has a nondelegable duty to maintain traffic safety in construction zones on state highways, the DOT can be held liable for the actions of contractors like Reeves and Moreland, which should be considered “employees” under the GTCA. This question has been answered unequivocally under state law. Although the DOT is tasked with the duty to “plan, designate, improve, manage, control, construct, and maintain a state highway system” under the Georgia Code of Public Transportation, OCGA § 32-1-1 et seq., nothing in that Code prohibits the DOT from delegating its responsibilities to a private contractor. See Johnson, 278 Ga. at 716 (2) (state departments “have meaningful statutory responsibilities . . . and they satisfy those responsibilities by exercising reasonable care in the selection and supervision of their independent contractors”); Comanche Constr., Inc. of Ga. v. Dept. of Transp., 272 Ga. App. 766, 770 (2) (613 SE2d 158) (2005) (physical precedent only) (finding no language in the statute that would prohibit the DOT from delegating its responsibility to a private contractor through a construction contract). Here, the DOT delegated its responsibilities with respect to Project No. STP-3201(9) to Reeves and Moreland under their respective contracts, including the responsibility for traffic control and inspections for contract compliance. And the DOT is correct that corporations and independent contractors doing business with the State are not included within the GTCA’s definition of “employee.” See OCGA § 50-21-22 (7); Brooks, 324 Ga. App. at 17-18 (1) (the State is immune from liability if the tort was committed by a third party). Thus, under the GTCA, the DOT’s sovereign immunity has not been waived for the negligence committed by independent contractors such as Reeves or Moreland. Id.

Wyche now argues for the first time on appeal that the DOT was not permitted to delegate its duties to Reeves or Moreland because the State’s project was partially funded by federal highway funds, and pursuant to 23 CFR § 635.105 (a), the DOT was required to maintain full authority over the construction project. However, “[a]s she raises [this] question for the first time on appeal, she presents nothing for us to consider.” Kumar v. Hall, 262 Ga. 639, 644 (3) (423 SE2d 653) (1992). We also note that this Court rejected a similar argument in Comanche, and although it is physical precedent only, we find it persuasive. 272 Ga. App. at 771 (2). The plaintiff in Comanche also argued that federal regulations placed sole responsibility for traffic control plans on the DOT, but this Court found that nothing in those regulations necessarily rendered DOT ultimately liable for design decisions related to traffic control plans. Id. (“23 CFR § 630.1010 (a) (4) (2004) specifically allows a state highway agency to permit a contractor to develop and use its own traffic control plan in a roadway project.”). And while the State is required to designate a person who will have “ ‘the primary responsibility and sufficient authority for assuring that the [plan is] effectively administered,’ ” there is “no reason why this requirement necessarily elevates DOT’s involvement to something more than inspection and approval.” Id. (quoting 23 CFR § 630.1010 (b) (2004)). See Ga. Dept. of Corrections v. James, 312 Ga. App. 190, 194 (1) (718 SE2d 55) (2011) (“Implied waivers of governmental immunity should not be favored. Thus, even if, pursuant to the cited statutory provisions, [the third parties] are subject to the DOC’s rules and supervision, those statutory provisions did not authorize the trial court’s ultimate conclusion that sovereign immunity was waived.”) (citations and punctuation omitted).

Accordingly, Wyche’s claims against the DOT for negligence relating to the paving operations on the night of the accident, including the alleged failure to provide appropriate signage and lighting at the intersection, are actually claims based on the actions of one or more independent contractors and are harred hy the doctrine of sovereign immunity. See Dept. of Transp. v. Jarvie, 329 Ga. App. 681, 683 (766 SE2d 94) (2014) (“GTCA’s waiver of immunity does not include torts committed by independent contractors, so the DOT is not subject to suit for the conduct of its contractors, such as negligently designing the ... area’s traffic plan or negligently driving the truck which caused [decedent’s] death.”) (citations omitted); Ga. Dept. of Transp. v. Owens, 330 Ga. App. 123, 133-135 (4) (766 SE2d 569) (2014) (under the GTCA, independent contractor doing business with the State is not a state officer or employee and the DOT is not liable for traffic control plans implemented by an independent contractor).

2. With respect to Wyche’s claims based on the DOT’s own actions, essentially that it failed to inspect and ensure a proper traffic control plan, the DOT contends that the trial court erred in finding that the exceptions to the State’s waiver of sovereign immunity with respect to its inspection powers or functions (OCGA § 50-21-24 (8)) or its licensing powers or functions (OCGA § 50-21-24 (9)) are inapplicable here. We will address each statutory exception in turn.

(a) To the extent the GTCA sets forth an exception to the waiver of sovereign immunity, the State and its departments remain immune from suit. See OCGA § 50-21-24 (setting forth 13 limitations to the State’s waiver of sovereign immunity). One such exception relates to the State’s inspection powers. OCGA § 50-21-24 (8) provides:

The state shall have no liability for losses resulting from... [inspection powers or functions, including failure to make an inspection or making an inadequate or negligent inspection of any property other than property owned by the state to determine whether the property complies with or violates any law, regulation, code, or ordinance or contains a hazard to health or safety[.]

And we have held that there is no principled distinction between the DOT’s inspection of physical property to determine whether it complies with accepted safety standards and an inspection of construction plans. See, e.g., Magueur v. Dept. of Transp., 248 Ga. App. 575, 578 (547 SE2d 304) (2001) (“Because the duty allegedly breached by DOT — i.e., a duty to inspect the construction plans and/or the property and to advise the county of any safety hazards — falls within OCGA § 50-21-24 (8), DOT is entitled to sovereign immunity.”).

Here, Wyche’s claims that the DOT was negligent in “approving construction plans and inspecting the physical property” clearly fall within this inspection exception. In asserting that the exception is inapplicable here, Wyche argues, and the trial court agreed, that because the accident occurred on a State-owned highway, the DOT is not immune from suit. The trial court, relying on Dept. of Transp. v. Kovalcik, 328 Ga. App. 185 (761 SE2d 584) (2014), which involved an accident on a State-owned highway after the construction was completed, concluded that the holding should also apply to this case involving an active construction project.

However, shortly after the trial court entered its order, this Court clarified the scope of this exception. In Jarvie, we held that the DOT was immune from liability under the inspection powers exception with respect to monitoring compliance with the DOT’s conditions (including the submission of a traffic control plan) for approval of a contractor’s request to stockpile rock in the median as part of a road-widening project on the interstate. 329 Ga. App. at 684. We found that the factual scenario presented was distinct from that in Kovalcik, “which involved inspecting a completed state roadway project with an allegedly hazardously designed curb and left turn lane[,]” whereas in Jarvie “the DOT’s relevant on-site conduct was monitoring the method of construction as previously approved.” Id. at 684, n. 14. And we rejected the plaintiffs’ argument that the DOT’s actions amounted to inspection of State property and should not be covered by the inspection powers exception, explaining:

[T]he conduct in this case amounts to oversight of construction activities for purposes of administering the contract, and it does not amount to an inspection of State property for regulatory compliance or safety hazards as contemplated by the language of OCGA § 50-21-24 (8). Absent a clear legislative directive, we decline to extend the waiver of sovereign immunity to include independent contractors’ conduct even if the State actor in some way attempts to ensure that contractors are operating safely on a State-approved project.

(Footnote omitted.) Id. at 684.

So too here, to the extent that Wyche contends that the DOT was negligent in failing to adequately inspect the work performed by Reeves during the course of the paving project, her claims fall under the inspection powers exception, and the DOT is immune from those claims. See Jarvie, 329 Ga. App. at 684.

(b) In its order, without otherwise characterizing her claims, the trial court also concluded that Wyche “does not contend [the] DOT was negligent in any way as to its licensing power or function.” We disagree.

OCGA § 50-21-24 (9) provides that the State shall have no liability for losses resulting from its “[(licensing powers or functions, including, but not limited to, the issuance, denial, suspension, or revocation of or the failure or refusal to issue, deny, suspend, or revoke any permit, license, certificate, approval, order, or similar authorization.” In Owens, C. W. Matthews Contracting Company contracted with the DOT to perform repaving work on portions of 1-75/85 in Atlanta. 330 Ga. App. at 124. In the early morning hours of May 16, 2010, while it was still very dark, a dump truck driver was delivering a load of asphalt to the construction site. Id. The driver was traveling approximately 15-25 miles per hour in the second lane over from the right shoulder, which lane was supposed to have been, and which he mistakenly believed had been, closed to normal traffic. Id. at 124-125. Owens, who was driving his Jeep in the second lane at 70 miles per hour at the time, struck the dump truck from behind and was killed. Id. at 125. This Court found that OCGA § 50-21-24 (9) shielded the DOT from liability for alleged negligence in approving a site-specific traffic control plan that was in effect on the date of the collision, explaining that “this exception, by its plain terms, is not strictly limited to decisions related to permits or licenses. Instead, it also applies as to decisions relating to issuance, denial, suspension, or revocation of approvals.” (Emphasis in original.) Id. at 137 (4) (b).

Here, Reeves was performing paving work following the DOT’s authorization granted in the Notice to Proceed issued on April 22, 2003. The DOT’s review and approval of traffic control plans that were supposed to be submitted by Reeves and its alleged failure to suspend or revoke its approval thus fall within the licensing power exception. See Murray v. Ga. Dept. of Transp., 284 Ga. App. 263, 266 (2) (644 SE2d 290) (2007) (physical precedent only) (“the [licensing powers] exception grants broad immunity for losses resulting from virtually any action the State DOT could take regarding the authorization” to install a traffic light); Dept. of Transp. v. Cox, 246 Ga. App. 221, 225 (540 SE2d 218) (2000) (DOT immune as to claims arising out of the State’s issuance of the construction permit and the State’s alleged refusal to timely issue a permit for a traffic signal).

Decided June 25, 2015

Samuel S. Olens, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, C. McLaurin Sitton, Senior Assistant Attorneys General, for appellant.

The Boston Law Firm, Russell M. Boston, Wendy S. Boston, for Wyche.

Carlock, Copeland & Stair, Kent T. Stair, Cheryl H. Shaw, for Moreland Altobelli Associates, Inc.

Drew, Eckl & Farnham, Stevan A. Miller, Melanie C. Eyre, for Reeves Construction Company.

Accordingly, whether Wyche’s claims are characterized as either claims that the DOT negligently approved Reeves’ paving project or negligently inspected the project, they are barred under the doctrine of sovereign immunity. See Reidling v. City of Gainesville, 280 Ga. App. 698, 703 (1) (634 SE2d 862) (2006) (pursuant to OCGA § 50-21-24 (8) and (9), “sovereign immunity precludes plaintiffs’ claims that the DOT either negligently approved the disposal site for the excess fill soil or negligently inspected the site”). The trial court’s denial of the DOT’s motion to dismiss must be reversed.

Judgment reversed.

Barnes, P. J., and Ray, J., concur.

       “Amotion to dismiss on sovereign immunity grounds is based upon the trial court’s lack of subject matter jurisdiction, and as a result, a trial court is entitled to make factual findings necessarytoresolvethejurisdictionalissue.” Bd. of Regents of the Univ. System of Ga. v. Brooks, 324 Ga. App. 15, 16, n. 2 (749 SE2d 23) (2013).

       That evening, a member of the Reeves paving crew had instructed Bowen to be in that area to observe the intersection’s traffic signal and direct the equipment operators, also employed by Reeves, as to when they had the right-of-way to cross the intersection.

       Howard testified that DOT employee Moss had no authority to give him job directions.

       The contract, entered into by the DOT and Moreland provides, in part, that Moreland “shall utilize effective control procedures to determine and to ensure that the contractor’s construction of this project is performed in reasonably close conformity with the plans, specifications, and contract provisions.” The contract specifically required Moreland to “inspect traffic control and monitor traffic operations during the normal course of other inspection duties.”

       Both drivers were also named in the complaint, but were eventually dismissed with prejudice.

       The contract further provides:
      [Reeves] shall designate a qualified individual as a Worksite Traffic Control Supervisor (WTCS) who shall be responsible for selecting, installing and maintaining all traffic control devices in accordance with the Plans, Specifications and the MUTCD. ... As the representative of [Reeves], the WTCS shall have full authority to act on behalf of [Reeves] in administering the Traffic Control Plan____ The WTCS shall regularly perform inspections to ensure that traffic control is maintained.

       Although Wyche objects to this enumeration of error because the trial court did not specifically address this issue in its order,
      [l]ong-standing statutory and case law requires courts to dismiss an action whenever it appears by suggestion of the parties or otherwise, that the court lacks jurisdiction of the subject matter. The 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.
      (Citations and punctuation omitted.) Dept. of Transp. v. Kovalcik, 328 Ga. App. 185, 190 (1) (b) (761 SE2d 584) (2014). And we have consistently held that the sovereign immunity of a State agency “raises the issue of the trial court’s subject matter jurisdiction to try the case.” Id. Moreover, the DOT raised this issue in its answer and its motion to dismiss, so we will address the DOT’s argument here. See id. (finding no equitable argument to preclude review of additional argument on appeal where sovereign immunity generally was raised below).

       As a department of the State, the DOT is subject to the waiver, and exceptions thereto, set forth in the GTCA. See Kovalcik, 328 Ga. App. at 188 (1) (a).

       OCGA § 32-2-2 (a) (1).

       We express no opinion here as to any potential liability of either Reeves or Moreland.

       Wyche contends that Reeves failed to submit a traffic control plan as required by the DOT contract. But whether the DOT failed to revoke approval of its authorization after Reeves failed to submit a traffic control plan or Reeves submitted a problematic plan makes no difference in analyzing whether the licensing power exception applies.

       We are unpersuaded by Wyche’s attempt to characterize her claim as one that falls outside the licensing powers exception because she does not fault the DOT’s original “decision to make or not to make the improvements to the subject intersection.” Rather, she claims that the DOT “was negligent in failing to enforce the terms of the... contract,” including the portions related to traffic control. Thus, she is essentially arguing that the DOT should have revoked its authorization for Reeves to proceed, which claim falls within the licensing power exception. See Owens, 330 Ga. App. at 137 (4) (b).


author: Branch, Judge.

text:
    A15A0600.
    BOSTIC v. THE STATE.
    (774 SE2d 175)
   Branch, Judge.

Perry Bostic appeals from an order of the Laurens County Superior Court denying Bostic’s motion to suppress the results of his alcohol breath test, which were obtained following Bostic’s arrest for DUI less safe. Specifically, Bostic contends that the trial court erred in finding that police had probable cause to arrest him for DUI. We agree and therefore reverse the order of the trial court.

The evidence in this case was uncontested and consisted of the testimony of the arresting officer and a videotape of the traffic stop of Bostic’s car and his subsequent arrest. Moreover, on appeal Bostic does not dispute any factual findings made by the trial court in its order denying his motion to suppress. Rather, he contends that the trial court erred as a matter of law in finding that these facts provided probable cause to arrest Bostic for DUI. Accordingly, because there are no disputed facts, we review de novo the trial court’s application of the law to those facts. Williams v. State, 318 Ga. App. 715 (734 SE2d 535) (2012). See also Silva v. State, 278 Ga. 506, 507 (604 SE2d 171) (2004).

The record shows that Michael Talbott, an officer with the Dublin Police Department, observed a car driven by Bostic with the license plate partially obscured by the frame surrounding the tag. Talbott therefore initiated a traffic stop of the vehicle. Upon making contact with Bostic, Talbott noticed that Bostic’s eyes were bloodshot and watery, so the officer asked Bostic if he had been drinking. Bostic responded that he had consumed one beer approximately one hour earlier. In response to further questions from Talbott, Bostic admitted that his driver’s license was currently suspended as a result of a previous DUI charge. The officer then asked Bostic if he would be willing to “take some tests,” and Bostic agreed. Talbott had Bostic exit his vehicle and walk to Talbott’s patrol car where Talbott administered an alco-sensor test, which showed that alcohol was present on Bostic’s breath. Talbott did not conduct any field sobriety tests because, as best he could recall, he was not certified at that time to conduct such tests.

Based on Bostic’s admission that he had consumed a beer earlier in the evening, the appearance of his eyes, and the positive alcosensor test, Talbott arrested Bostic for DUI less safe. Talbott then read Bostic Georgia’s implied consent notice and after being asked three times, Bostic agreed to submit to an alcohol breath test. The results of that test showed that Bostic had a blood alcohol level above the legal limit.

Bostic was subsequently indicted for improper display of license plate, driving without a license, DUI per se, and DUI less safe to drive. Prior to trial, Bostic filed a motion to suppress the results of his alcohol breath test on the grounds that Talbott lacked probable cause to arrest him for DUI. Following a hearing on that motion, the trial court denied the same, but certified its order for immediate review. Bostic then filed an application for an interlocutory appeal, which we granted. This appeal followed.

Probable cause exists for an arrest where the objective facts known to the officer establish a probability that the suspect has been engaged in illegal activity. See Campbell v. State, 313 Ga. App. 436, 438 (721 SE2d 649) (2011). A “probability” is “less than a certainty but more than a mere suspicion or possibility.” Gregoire v. State, 285 Ga. App. 111, 113 (1) (645 SE2d 611) (2007) (footnote omitted). Thus, 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 him incapable of driving safely. Mere presence of alcohol is not the issue.” State v. Sanders, 274 Ga. App. 393, 396 (617 SE2d 633) (2005) (punctuation and footnotes omitted; emphasis supplied). Accordingly, 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. Handley v. State, 294 Ga. App. 236, 237 (668 SE2d 855) (2008); State v. Ellison, 271 Ga. App. 898, 901 (3) (b) (611 SE2d 129) (2005). “Impaired driving ability depends solely upon an individual’s response to alcohol. Because 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.” Ellison, 271 Ga. App. at 902 (3) (b) (punctuation and footnote omitted). See also Armour v. State, 315 Ga. App. 745, 747 (1) (728 SE2d 270) (2012) (“evidence which shows only that a defendant had [alcohol] in her body while driving provides insufficient probable cause to arrest for DUI”) (punctuation and footnote omitted; emphasis in original); Slayton v. State, 281 Ga. App. 650, 652 (1) (637 SE2d 67) (2006) (“a positive alco-sensor result shows only the presence of alcohol, not that the driver is intoxicated and it is less safe for him to drive”).

Here, the evidence shows that Talbott did not have probable cause to believe that Bostic’s driving ability was impaired due to alcohol consumption. The officer testified that he initiated the traffic stop not because of Bostic’s driving, but because of an obstructed license plate. The video of the stop shows that Bostic answered all of Talbott’s questions promptly and that his speech was clear. Bostic can be seen on the video exiting his vehicle and walking to the patrol car, and his gait was steady and otherwise normal. Although Talbott testified that Bostic’s eyes were bloodshot and watery, there is no evidence that Bostic’s eyes were glassy or unfocused. As the trial court’s order reflects, the only evidence of a potential impairment available to Talbott was Bostic’s admission that he had consumed a beer earlier that evening, the appearance of his eyes, and the alcosensor test showing the presence of alcohol. While this evidence could give rise to the suspicion or possibility that Bostic was an impaired driver, it “is insufficient as a matter of law to constitute probable cause to arrest [Bostic] for driving under the influence.” Handley, 294 Ga. App. at 238 (fact that officer smelled alcohol on driver’s breath and that alco-sensor test revealed the presence of alcohol did not provide officer with probable cause to arrest driver for DUI) (citations omitted). See also State v. Damato, 302 Ga. App. 181, 182-183 (1) (690 SE2d 478) (2010) (fact that officer smelled alcohol on defendant’s breath, that her eyes were bloodshot, and that she admitted having consumed alcohol several hours before was insufficient to provide the officer with probable cause to arrest for DUI); Ojemuyiwa v. State, 285 Ga. App. 617, 620 (2) (647 SE2d 598) (2007) (although two officers detected “a strong odor of alcohol” coming from the defendant’s person, that fact did not support an arrest for DUI where “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”). Compare Armour, 315 Ga. App. at 747 (1) (probable cause to arrest for DUI existed where officer detected odor of burnt marijuana, driver admitted smoking marijuana daily, driver’s eyes were bloodshot and her pupils dilated, and officer’s evaluation of driver’s performance on field sobriety tests led him to conclude she was an impaired driver); Sultan v. State, 289 Ga. App. 405, 409 (2) (657 SE2d 311) (2008) (probable cause supported arrest for DUI where evidence showed that the officer detected the odor of alcohol coming from driver’s vehicle, driver 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).

Decided June 25, 2015.

Natalie K. Glaser, for appellant.

L. Craig Fraser, District Attorney, Cheryl A. Banks, Assistant District Attorney, for appellee.

Given that Talbott lacked probable cause to arrest Bostic for DUI, we reverse the order of the trial court denying Bostic’s motion to suppress any evidence obtained as a result of that arrest.

Judgment reversed.

Andrews, P. J., and Miller, J., concur.

       See OCGA § 40-6-391 (a) (1) (prohibiting any person from being “in actual physical control of any moving vehicle while . . . [u]nder the influence of alcohol to the extent that it is less safe for the person to drive”). Although Bostic’s motion to suppress also argued that the traffic stop of his car was illegal, Bostic has not pursued that argument on appeal. Accordingly, the trial court’s ruling that the traffic stop itself was lawful is not at issue.

       According to Talbott, although he could read the license plate, the frame partially obscured the sticker indicating the tag’s expiration date.

       The applicable implied consent notice for suspects age 21 or over is set forth in OCGA § 40-5-67.1 (2) and states:
      “Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?”

       The DVD of the traffic stop shows that at the time he arrested Bostic, Talbott informed him only that he was under arrest for DUI. At the hearing below, however, Talbott testified that he had also arrested Bostic for driving without a license. It may be that Talbott had probable cause to arrest Bostic for that offense. This issue is not before us, however, as it was neither raised, argued, nor ruled on below. See Harris v. State, 265 Ga. App. 876, 877 (1) (a) (595 SE2d 683) (2004). Moreover, on appeal the State does not argue that an arrest for driving without a license would support the admission of that evidence which Bostic sought to suppress, i.e., the results of his alcohol breath test. As a matter of law, that evidence is the fruit of Bostic’s arrest for DUI. This conclusion results from the fact that Georgia law does not empower officers to request that every individual they arrest for any kind of traffic violation submit to chemical tests designed to detect the presence of alcohol in the blood. Rather, an officer has the right to request that a person submit to such tests only where the officer has arrested that person for DUI or where that person has been “involved in a traffic accident resulting in serious injuries or fatalities.” OCGA §§ 40-5-55 (a); 40-5-67.1. See also Massey v. State, 331 Ga. App. 430, 432 (1) (771 SE2d 122) (2015) (“[a]n officer’s authority to request at the time of arrest that a driver submit to . . . chemical testing for alcohol or drugs . . . derives from the implied consent provisions of OCGA § 40-5-55 (a)”). Thus, Georgia’s implied consent notice, pursuant to which Bostic consented to the alcohol breath test, is read to an individual only when that person has been arrested for DUI or was “involved in a traffic accident resulting in serious injuries or fatalities.” OCGA § 40-5-67.1 (a). Accordingly, with respect to Bostic’s motion to suppress, the relevant question is whether Talbott had probable cause to arrest Bostic for DUI and not whether Talbott had probable cause to arrest Bostic for some other traffic violation.


author: Miller, Judge.

text:
    A15A0035.
    THE STATE v. BRAGG.
    (774 SE2d 182)
   Miller, Judge.

Becky Sheree Bragg filed a plea in bar asserting that her indictment for violating Georgia’s Employment Security Law (OCGA § 34-8-256 (a)) was barred by the applicable four-year statute oflimitation under OCGA § 17-3-l(c). The trial court granted Bragg’s plea in bar, and the State appeals. The State contends that the statute oflimitation was tolled under OCGA § 17-3-2 (2) for the period of time in which the crime was unknown. For the following reasons, we affirm.

“When reviewing a trial court’s ruling on a plea in bar, the trial court’s findings on disputed facts and witness credibility are affirmed unless those findings are clearly erroneous.” (Citation omitted.) Harper v. State of Ga., 292 Ga. 557, 563 (3) (738 SE2d 584) (2013). We review the trial court’s application of law to undisputed facts de novo, keeping in mind that the State has the burden of proving that the statute of limitation does not bar the indictment. State v. Mullins, 321 Ga. App. 671 (742 SE2d 490) (2013).

So viewed, the evidence shows that the Georgia Department of Labor (the “DOL”) maintains two separate computer databases which store personal information. One database stores information on claimants who receive unemployment benefits, and the other stores information on working employees’ earned wages as reported by their employers for tax purposes. Personal information in both databases includes the relevant individual’s social security number. The two databases are compared on a quarterly basis using a “skip trace” automated computer program.

The skip trace program compares the information in the earned wages database with the information in the unemployment benefits database and identifies individuals whose social security number appears in both databases for the same quarterly period. The DOL then sends a quarterly wage audit inquiry letter to each individual’s employer, asking the employer to verify whether the individual has been working while receiving unemployment benefits.

In this case, Bragg received unemployment benefits in 2009. On or before January 21,2010, Bragg was identified in the DOL’s system and the DOL sent Bragg’s employer a quarterly wage audit inquiry letter because the system showed that she had been working while receiving unemployment benefits. Bragg may have been identified in the DOL’s system as early as January 1, 2010. On February 2, 2010, the DOL received a response from Bragg’s employer stating that Bragg was employed from December 29, 2008 to September 23, 2009, and that she earned more than $7,000 during this time period. Consequently, Bragg received unemployment benefits while she was employed. The State, however, waited until January 7,2014 to charge Bragg with violating the Georgia Employment Security Law for knowingly failing to disclose that she was gainfully employed between January 3, 2009 and September 5, 2009, while she was receiving unemployment benefits in excess of $4,000.

On March 13, 2014, Bragg filed her plea in bar, based on the running of the four-year statute of limitation set forth in OCGA § 17-3-1 (c). Following an evidentiary hearing, the trial court granted Bragg’s plea in bar, and this appeal ensued.

1. As an initial matter, we note that the State’s brief in this case violates numerous rules of this Court. The brief was untimely filed more than 35 days after this appeal was docketed in violation of Court of Appeals Rule 23 (a). Additionally, the State’s brief contains no statement of jurisdiction as required by Court of Appeals Rule 22 (b); the State has failed to file or include in its brief an enumeration of errors as required by OCGA § 5-6-40 and Court of Appeals Rule 25 (a) (2); and the State’s brief does not include a concise statement of the applicable standard of review as requiredby Court of Appeals Rule 25 (a) (3).

This Court could dismiss the State’s appeal for violation of this Court’s rules, including its failure to file a timely brief. Nevertheless, we exercise our discretion to reach the merits of this case, and we address the State’s arguments to the extent they are apparent from the notice of appeal, the record and the State’s brief. See State v. Madison, 311 Ga. App. 31, 32 (1) (714 SE2d 714) (2011) (reaching the merits of the case although the State failed to include enumerations of error in its brief).

2. The State argues that pursuant to OCGA § 17-3-2 (2), the trial court erred in granting Bragg’s plea in bar because the statute of limitation was tolled until February 2, 2010, when the DOL received a response from Bragg’s employer confirming her wages. We disagree.

In deciding when the statute of limitation begins to run in a given case several considerations guide our decision. The purpose of a statute of limitation is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. As a general rule, exceptions will not be implied to statutes of limitation for criminal offenses, and ordinarily the running of such a statute is not interrupted unless it contains an exception or condition that will toll its operation.

(Citation and punctuation omitted.) Womack v. State, 260 Ga. 21, 22-23 (4) (389 SE2d 240) (1990).

Pursuant to OCGA § 17-3-1 (c), the State was required to commence the prosecution of its case against Bragg within four years after she violated Georgia’s Employment Security Law (OCGA § 34-8-256 (a)). Since the charging instrument — Bragg’s indictment — was filed outside of the four-year limitation period, Bragg’s prosecution for this crime is barred, unless the State proves that OCGA § 17-3-2 (2) — the tolling provision alleged in her indictment — tolled the limitation period. See Moss v. State, 220 Ga. App. 150 (469 SE2d 325) (1996) (exception to statute of limitation must be alleged in indictment and proved by State); Mullins, supra, 321 Ga. App. at 673 (1) (State must plead and prove that tolling provision applies).

OCGA § 17-3-2 (2) provides: “The period within which a prosecution must be commenced ... does not include any period in which ... the crime is unknown[.]” The crime victim’s actual knowledge of the crime, however, is imputed to the State for purposes of determining whether the tolling provision applies. See Harper, supra, 292 Ga. at 559. Moreover, the victim’s “lack of knowledge of the illegality of the act [is] not sufficient to toll the limitation period, but rather there must be lack of knowledge of the act itself.” (Citation omitted; emphasis supplied.) State v. Robins, 296 Ga. App. 437, 439 (1) (674 SE2d 615) (2009). Accordingly, in analyzing the statute of limitation, the correct date to apply is the date that the defendant’s act or actions became known to the victim. Harper, supra, 292 Ga. at 563 (3); Robins, supra, 296 Ga. App. at 439 (1).

The State alleged in Bragg’s indictment, and it argues on appeal, that the crime was unknown to it until February 2, 2010, when the DOL received a response from Bragg’s employer confirming her wages. Contrary to the State’s argument, the evidence showed that the victim, in this instance, the DOL, had actual knowledge of Bragg’s actions — collecting unemployment benefits while she was employed — when Bragg was identified by the DOL’s system, which occurred as early as January 1, 2010.

We also reject the State’s argument that neither the DOL, nor the State, could confirm that a crime had been committed until the DOL received the response from Bragg’s employer. As set forth above, the DOL’s lack of knowledge that Bragg was illegally collecting unemployment benefits while employed is not sufficient to toll the limitation period. See Robins, supra, 296 Ga. App. at 439 (1). Moreover, the tolling exception to the statute of limitation cannot be based upon the subjective opinion of the DOL or the State as to whether there is enough evidence to file charges because the statute of limitation is not tolled for the routine investigation of crimes. See Jenkins v. State, 278 Ga. 598, 603 (1) (A) (604 SE2d 789) (2004).

Decided June 26, 2015.

K. David Cooke, Jr., District Attorney, Myra H. Tisdale, Assistant District Attorney, for appellant.

Andrew W. Jenkins, for appellee.

The DOL admittedly had actual knowledge of Bragg’s actions as early as January 1, 2010, when its system identified her as having collected unemployment benefits while she was employed. The statute of limitation began to run on January 1, 2010. The State failed to prove that the limitation period was tolled since the evidence established that the State had knowledge of the illegality and failed to bring charges timely. See Mullins, supra, 321 Ga. App. at 673. Accordingly, the trial court did not err in granting Bragg’s plea in bar.

Judgment affirmed.

Branch, J., concurs. Andrews, P. J., concurs in judgment only.

       Specifically, the DOL asks the employer to verify the claimant’s name and social security number against payroll records, show the claimant’s gross wages on a weekly basis and enter the dates during which the claimant was employed.


text:
    A15A0136.
    OLDS v. THE STATE.
    (774 SE2d 186)
   Miller, Judge.

Following a jury trial, Vashon Olds was convicted of false imprisonment (OCGA § 16-5-41 (a)) and battery (OCGA § 16-5-23.1 (a)). Olds appeals from the judgment on his convictions, contending that the trial court abused its discretion in admitting evidence of similar acts over Olds’s objections. For the reasons that follow, we affirm.

Viewed in the light most favorable to Olds’s convictions, the evidence shows that Olds was a close family friend of the victim, and they were briefly involved in a romantic relationship. In February 2009, the victim moved to Albany to attend college, and she contacted Olds about possibly living in his trailer. The victim and Olds agreed that the victim and her son would move in with Olds, and the victim would pay for half of the utilities. The victim and her son each had their own room and they had their own bathroom that they shared. The victim told Olds that they would not be resuming their prior romantic relationship, and Olds confirmed that he understood.

Shortly after the victim moved in, she and her boyfriend were sitting in a car outside of her grandmother’s house when Olds pulled up behind their vehicle, got out of his car, and told the victim’s boyfriend that she was “his lady.” Olds subsequently apologized for his behavior, and the victim returned to the trailer.

The next day, the victim told Olds that she was going out of town. She got into her car, intending to leave, but then realized that she had forgotten her son’s jacket in the trailer. The victim went inside the trailer and, as she walked into her bedroom, Olds followed her. When the victim asked Olds what he was doing, he responded that he was getting ready to take out the trash. The victim then walked down the hallway, and Olds jumped her from behind, while holding a white tie in his hand. The victim put her arms up to keep the tie away from her neck and avoid being choked.

The victim begged Olds to let her go, but he told her “you’re not going anywhere,” and he pushed her onto a chair in his bedroom. Olds then tied up the victim, picked her up and threw her on the bed. When the victim again begged him to stop, Olds got on top of her and told her that if she cooperated and shut up, “it’ll be over with.” Olds began to unbutton and unzip the victim’s pants. The victim screamed, and Olds put his hands over the victim’s nose and mouth so that she could not breathe.

Olds then duct taped the victim’s mouth. When she removed the tape, he told her that if she screamed, he was going to kill her. Olds also told the victim that he was going to kill himself because he was “not going back to prison.” When the victim continued to plead with Olds, he turned her over and sat her up on the edge of the bed. The victim continued to talk to Olds to calm him down, because she was afraid that he would kill her.

After about 30 minutes, Olds untied one of the victim’s ties, and picked up a long blade from a tray beside his bed. The victim was afraid Olds was going to cut her so she told him to stop and asked him for some water. At that point, the victim received a phone call from her grandmother; Olds had a brief conversation with the victim’s grandmother; and after the phone call, the victim begged Olds to let her go. Olds picked up the blade and began to cut the ties off the victim’s arms and stomach.

Once free, the victim continued to talk to Olds, telling him that she forgave him, and they could “work it out.” Eventually, the victim asked Olds to walk her to the car, which he did, after she told him that she would return. The victim drove down the street, flagged down a police officer about a minute later and told the officer what had happened.

At trial, the State presented evidence of extrinsic acts involving Olds’s ex-girlfriend, T. H. T. H. testified that, in June 1999, Olds called her, told her she had forgotten something at his house and said he would come over to return the item. When Olds arrived, T. H. was in the kitchen cooking. Olds came up behind T. H. with a knife, told T. H. that he was not leaving, said if he could not have her, then nobody else would, and then cut T. H.’s chin. T. H. yelled for her kids to run out of the house and struggled with Olds before running to a neighbor’s house.

The State also presented evidence of extrinsic acts involving K. B., who testified that, in August 2012, Olds drove her to Walmart to buy a part for her mother’s car, which he was repairing. After buying the part, Olds and K. B. headed back to her house when Olds suddenly took a detour, saying that he needed to go home to grab a missing part. When they arrived at Olds’s home, he told K. B. that she could not stay in his car, so she followed him up to his room. After looking around, Olds told K. B. that he could not find the missing part, so K. B. turned toward the door to leave. Olds grabbed K. B. from behind and threw her onto the bed. Olds then forcibly held K. B. down, pulled down her shorts and underwear and placed his tongue on her vagina.

K. B. told Olds to stop and tried to push him away, but he refused to stop, and he then tried to insert his penis into her vagina. When K. B. grabbed Olds’s penis and scratched his leg and back, Olds got off of her. After Olds drove K. B. home, she told her mother what had happened, and her mother immediately called the police.

In his sole enumeration of error, Olds contends that the trial court erred in admitting evidence of extrinsic acts over his objection. We disagree.

Because this case was tried after January 1, 2013, Georgia’s new Evidence Code applies. See Ga. L. 2011, p. 99, § 101; Bradshaw v. State, 296 Ga. 650, 655 (3) (769 SE2d 892) (2015). OCGA § 24-4-404 (b) of the new Evidence Code provides:

Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .

Accordingly, in determining the admissibility of evidence of extrinsic crimes and acts under OCGA § 24-4-404 (b), we apply a three-part test adopted from the Eleventh Circuit, which provides:

(1) the evidence must be relevant to an issue other than defendant’s character; (2) the probative value must not be substantially outweighed by its undue prejudice; (3) the government must offer sufficient proof so that the jury could find that defendant committed the act.

(Citation omitted.) Bradshaw, supra, 296 Ga. at 656 (3).

Under OCGA § 24-4-403, which mirrors Federal Rule of Evidence 403,

[rjelevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

See Bradshaw, supra, 296 Ga. at 655 (3). We review the trial court’s decision to admit evidence under OCGA § 24-4-404 (b) for a clear abuse of discretion. Id. at 656 (3).

To satisfy the first prong of the test for admission of extrinsic acts, the State had to show that the evidence of the extrinsic acts was relevant to an issue other than Olds’s character. At trial, the trial court admitted evidence of Olds’s extrinsic acts to show his intent, identity, motive and opportunity and to disprove mistake or accident. With regard to intent, Olds argues that his intent was not at issue because the issue was whether the crimes in this case actually happened. Contrary to Olds’s contention,

[a] defendant who enters a not guilty plea makes intent a material issue which imposes a substantial burden on the government to prove intent, which it may prove by qualifying [extrinsic] evidence absent affirmative steps by the defendant to remove intent as an issue. Where the extrinsic offense is offered to prove intent, its relevance is determined by comparing the defendant’s state of mind in perpetrating both the extrinsic and charged offenses. Thus, where the state of mind required for the charged and extrinsic offenses is the same, the first prong of the [extrinsic evidence] test is satisfied.

(Citations and punctuation omitted.) United States v. Edouard, 485 F3d 1324, 1345 (II) (C) (1) (11th Cir. 2007).

In this case, the charged offenses included aggravated assault. By pleading not guilty, Olds made his intent a material issue, and he took no affirmative steps before trial to indicate that the State was relieved from proving intent. See Edouard, 485 F3d at 1345 (II) (C) (I) . With regard to Olds’s state of mind, the charged offense of aggravated assault and both of the extrinsic acts are very similar since all three offenses involve violent assaults on female acquaintances whom Olds attacked from behind. Clearly, all three offenses involved the same state of mind — Olds’s intent to harm women he knew by attacking them from behind. Therefore, the evidence of Olds’s extrinsic acts was plainly relevant to the issue of intent, and the first prong was satisfied. See United States v. Zapata, 139 F3d 1355, 1358 (11th Cir. 1998).

With regard to the second prong, we are satisfied that the trial court did not clearly abuse its discretion in determining that the probative value of evidence of the extrinsic acts was not substantially outweighed by its prejudicial effect. Similarity between the charged offense and the extrinsic acts is one factor that may be considered in determining probative value. See Edouard, supra, 485 F3d at 1345 (II) (C) (1); Bradshaw, supra, 296 Ga. at 657 (3). As set forth above, the charged offense of aggravated assault and the two extrinsic acts were very similar since all three acts involved Olds’s violent attacks from behind on women he knew. Moreover, any unfair prejudice caused by admitting evidence of the extrinsic acts was mitigated by the trial court’s detailed limiting instructions to the jury. See Edouard, supra, 485 F3d at 1346 (II) (C) (1); Zapata, supra, 139 F3d at 1358.

Finally, we conclude that the third prong is satisfied. T. H. testified that Olds attacked her from behind in 1999, K. B. testified that Olds attacked her from behind in 2012, and Olds presented no evidence to rebut their testimony. Given T. H. and K. B.’s detailed and unrebutted testimony about those attacks, a jury could have found by a preponderance of the evidence that Olds committed the extrinsic acts. See Edouard, supra, 485 F3d at 1345 (II) (C) (1). Accordingly, we conclude that the trial court did not clearly abuse its discretion by admitting evidence of the extrinsic acts, and we affirm Olds’s convictions.

Judgment affirmed.

Andrews, P. J., and Branch, J., concur.

Decided June 26, 2015

Kevin C. Armstrong, for appellant.

Gregory W. Edwards, District Attorney, for appellee.

       The jury acquitted Olds on additional charges of kidnapping and aggravated assault with intent to rape.

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

       With regard to the third prong of this test, “[extrinsic] acts evidence may be admitted if the [trial] court concludes that the evidence is sufficient for the jury to find by a preponderance of the evidence that the other act was committed.” (Citation omitted.) Bradshaw, supra, 296 Ga. at 656 (3), n. 4.

       At trial, Olds argued that the victim lied about the crimes after he told her that she needed to find somewhere else to live.

       Since we determine that evidence of the extrinsic acts was admissible to prove Olds’s intent, we need not address his additional arguments that evidence of those acts was not relevant to show plan or motive.


text:
    A15A0489.
    SUMMERVILLE v. THE STATE.
    (774 SE2d 190)
   Miller, Judge.

Following a jury trial, Kent Summerville was convicted of marijuana trafficking (OCGA § 16-13-31 (c) (2010)) and driving with a suspended license (OCGA § 40-5-121 (a)). Summerville appeals from the denial of his motion for new trial, contending that the evidence was insufficient to sustain his marijuana trafficking conviction because the statute existing at the time of his offense required the State to prove that he had knowledge the marijuana weighed more than ten pounds and the State failed to prove this element of the offense. Summerville also contends that the State withheld material evidence in violation of Brady v. Maryland, 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963), and that he received ineffective assistance of counsel. For the reasons that follow, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict; the defendant no longer enjoys the presumption of innocence; and we do not weigh the evidence or determine witness credibility. The standard of review is whether, based on the evidence of record, a rational trier of fact could have found the essential elements of the charged offense beyond a reasonable doubt.

(Citations omitted.) Smith v. State, 289 Ga. App. 236, 237 (656 SE2d 574) (2008).

So viewed, the evidence shows that on the afternoon of June 30, 2010, Summerville asked two friends, Ashley Brown and Mario Allen, to drive him from Birmingham, Alabama to Atlanta. Brown and Allen agreed, and they picked up Summerville at his apartment at about 7:30 p.m. Summerville drove Brown’s vehicle and would not tell her where they were headed.

On the way to Atlanta, the trio smoked marijuana that Summer-ville provided. Brown also took some Xanax, which caused her to “zone out” and fall asleep for most of the trip.

Brown testified that she woke up when Summerville stopped at a gas station. At the gas station, Summerville met an unidentified bald man driving a Chrysler 300. After briefly talking to the bald man, Summerville drove away from the gas station and followed the man to a house. Summerville entered the house with the man, and he returned to the car a few minutes later to grab a bag. Sometime later, Summerville and the bald man exited the house. Summerville then returned to the vehicle and opened and closed the trunk, causing Brown to wake up. Allen was sitting in the back seat at the time playing on his phone. Allen testified that he could smell marijuana after Summerville closed the trunk, but thought little of it because they had previously smoked marijuana in the vehicle. Summerville then began driving back to Birmingham.

At about 1:30 a.m., a police officer stationed along Interstate 20 observed that Summerville was driving slowly and causing several tractor-trailers and a recreational vehicle to back up behind him. Summerville did not yield to allow the larger vehicles to pass, and at one point, he abruptly decelerated, causing a dangerous situation for the vehicles behind him. Summerville then crossed the striped line and moved into the right-hand lane, which was occupied by another vehicle. Observing this behavior, the police officer turned on his patrol lights to initiate a traffic stop. Summerville asked Brown if he should stop or keep driving. Brown told him to stop because their small amount of marijuana could be hidden. Summerville responded that he had more than a small amount of marijuana in the car.

Summerville ultimately stopped the vehicle. Upon approaching the vehicle, the police officer smelled a strong odor of burnt marijuana and could see smoke hanging in the air when Brown rolled down the passenger window. The police officer asked Summerville for his driver’s license, and Summerville responded that he did not have one. Summerville handed the officer an identification card, and as he did, his whole arm was trembling. Summerville exited his vehicle at the request of the police officer and consented to a pat-down search. During the pat-down, the police officer smelled a strong odor of burnt marijuana emanating from Summerville, and he uncovered approximately $450 in cash from Summerville’s front pocket. While discussing the reason for the stop, Summerville admitted that his Alabama driver’s license had been suspended.

The police officer began to write Summerville a citation and called for backup. The police officer then asked Brown for consent to search her vehicle because he smelled the odor of burnt marijuana. When Brown failed to give a clear response, the police officer asked his backup officer, who had since arrived at the scene, to retrieve the backup officer’s drug dog so the officers could conduct a free-air sniff of Brown’s car. After the drug dog alerted to the presence of narcotics, the police officers began searching the vehicle. During the search, the officers found marijuana debris scattered inside of the vehicle, and they smelled fresh, or unsmoked, marijuana. The police officers continued searching the vehicle and found a large brick of marijuana weighing about 21 pounds located under the spare tire cover. When the police officers were about to place Summerville, Brown, and Allen into custody, Summerville began to move toward traffic and appeared to be getting ready to run. One of the police officers blocked Summer-ville and arrested him.

1. Summerville contends that the evidence was insufficient to sustain his conviction because the State failed to prove that he had knowledge that the weight of the marijuana was over ten pounds. We disagree.

Former OCGA § 16-13-31 (c) provided in pertinent part that “[a]ny person who knowingly . . . has possession of a quantity of marijuana exceeding 10 pounds commits the offense of trafficking in marijuana[.]” This former Code provision was substantially analogous to former OCGA § 16-13-31 (a) (1), the cocaine trafficking provision in effect prior to July 2013. See Wilson v. State, 312 Ga. App. 166, 168 (2) (718 SE2d 31) (2011); see also OCGA § 16-13-31 (a) (1) (2010) (“Any person . . . who is knowingly in possession of 28 grams or more of cocaine . . . commits the felony offense of trafficking in cocaine [.]”). The Supreme Court of Georgia has held that the plain language of former OCGA § 16-13-31 (a) (1) required that the State prove knowledge of the quantity of the cocaine as an element of the crime. See Scott v. State, 295 Ga. 39, 40 (1) (757 SE2d 106) (2014). Since the former marijuana trafficking provision also contains the same “knowingly” language, it follows that the reasoning of Scott applies to the former marijuana trafficking provision. Accordingly, the State was required to prove that Summerville knowingly possessed more than ten pounds of marijuana. Id.

In determining whether a defendant had the requisite knowledge, a jury may consider

the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. Indeed, both knowledge and possession may be proved, like any other fact, by circumstantial evidence.

(Punctuation and footnotes omitted.) Freeman v. State, 329 Ga. App. 429, 432 (1) (765 SE2d 631) (2014).

Contrary to Summerville’s argument, the State presented sufficient evidence to show that he had knowledge of the weight of the marijuana. Notably, the evidence shows that Summerville refused to provide Brown with driving directions, he met an unidentified man at a gas station, and he followed that man to a house, where he retrieved something from the house and placed it into the trunk of Brown’s vehicle. Additionally, Summerville’s trip was brief, as he left Birmingham at around 7:30 p.m., stopped in Atlanta only to meet this unidentified male, and then began the return trip to Birmingham after retrieving marijuana from this individual. See Calixte v. State, 197 Ga. App. 723, 724 (2) (399 SE2d 490) (1990) (generally, drug traffickers have a short turnaround time on round-trip travel). The marijuana found in the trunk of the car was shrink wrapped and weighed approximately twenty-one pounds, more than twice the amount of the ten pounds required to constitute trafficking. See former OCGA § 16-13-31 (c); see siso Freeman, supra, 329 Ga. App. at 432-433 (1) (the fact that drug quantity was almost twice the trafficking threshold was a significant factor in showing the defendant’s knowledge of drug quantity).

Moreover, when the police officer activated his patrol lights, Summerville asked Brown whether to stop. When Brown responded that he should stop because they could hide the small amount of marijuana, Summerville informed Brown that he had more than just a small bag of marijuana in the car. Based on these circumstances, the jury was authorized to conclude that Summerville had knowledge that the recovered marijuana weighed more than ten pounds.

2. Summerville contends that the trial court erred in denying his motion for a new trial on the ground that the State committed a Brady violation by failing to disclose prior to trial that it had attempted to lift fingerprints from the packaged marijuana but no usable prints could be obtained. We disagree.

In order to demonstrate a Brady violation, Summerville had to show that: (1) the State possessed evidence favorable to him; (2) he did not possess the evidence nor could he obtain it with any reasonable diligence; (3) the State suppressed the evidence; and (4) a reasonable probability exists that the outcome of the trial would have been different had the evidence been disclosed. See Blackshear v. State, 285 Ga. 619, 622 (5) (680 SE2d 850) (2009). Summerville has failed to make such a showing.

First, the fact that there are fingerprints that cannot be processed is neither exculpatory nor inculpatory. See Williams v. State, 303 Ga. App. 222, 226 (2) (692 SE2d 820) (2010). More importantly, even assuming arguendo that this information was favorable to Summerville and that the State suppressed it, he has failed to establish a Brady violation. In light of the overwhelming evidence that it was Summerville who placed the marijuana in the vehicle, there is no reasonable probability that the result of his trial would have been different had he known that no usable prints were found on the marijuana package. See Blackshear, supra, 285 Ga. at 622 (5) (no reversible error because the disclosure of any suppressed information would not have changed the outcome of the trial where there was overwhelming evidence of guilt). Consequently, Summerville’s Brody claim fails.

3. Summerville also contends that trial counsel rendered ineffective assistance.

To establish an ineffective assistance claim, an appellant must show not only that his counsel’s performance was deficient but also that the deficiency so prejudiced him as to create a reasonable probability that but for counsel’s errors, the outcome of the trial would have been different. Failure to satisfy both requirements is fatal to an ineffectiveness claim.

(Footnotes omitted.) Mitchell v. State, 250 Ga. App. 292, 295-296 (2) (551 SE2d 404) (2001).

(a) Summerville contends that trial counsel was ineffective for failing to request a jury charge that knowledge was a material element of the trafficking offense. We disagree.

Trial counsel in this case testified at the new trial hearing that he did not request a jury charge that the State was required to prove knowledge of the marijuana weight because the law at the time did not support such a request. Summerville was tried and convicted in January 2012. In October 2011, a few months before Summerville’s trial, this Court issued Wilson, supra, which held that the State was not required to prove knowledge as an element of the marijuana trafficking offense. Accordingly, the trial court did not err in charging the jury that a defendant’s knowledge of the quantity of marijuana was not an element of the offense, and the defendant’s trial counsel was not ineffective in failing to object to the jury charge. See Wilson, supra, 312 Ga. App. at 168-170 (2), (3).

Subsequent to Summerville’s trial, the Supreme Court of Georgia issued Scott, holding that under former OCGA § 16-13-31 (a) (1), the State was required to prove that the defendant had knowledge of the weight of cocaine in order to sustain a conviction for cocaine trafficking. See Scott, supra, 295 Ga. at 42 (2)-(3). As discussed above in Division 1, the reasoning of Scott applies equally to marijuana trafficking, and the State was required to prove knowledge of the drug quantity for offenses occurring prior to July 1, 2013. See id. at 41-42 (2).

Scott was issued after Summerville’s trial, and

when addressing a claim of ineffectiveness of counsel, the reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial. Thus, a new decision does not apply in a manner that would require counsel to argue beyond existing precedent and anticipate the substance of the opinion before it was issued. The standard for effectiveness of counsel does not require a lawyer to anticipate changes in the law.

(Citations and punctuation omitted.) Maldonado v. State, 325 Ga. App. 41, 48 (3) (a) (752 SE2d 112) (2013). Since the law at the time of Summerville’s trial did not require the State to prove knowledge of the weight of the marijuana, trial counsel was not deficient for failing to request a charge on this issue. Consequently, Summerville’s claim that trial counsel was ineffective on this ground fails.

(b) Summerville next contends that trial counsel was ineffective for failing to object to the trial court’s Allen charge to the jury. We disagree.

After about a day of deliberation, the jury sent a note stating that it was unable to reach a unanimous decision. The State requested an Allen charge, and trial counsel asked to review the charge before it was given to the jury. The trial court then informed trial counsel that it planned to give the pattern Allen charge, and the court gave that charge to the jury. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 1.70.70 (3d ed. 2003). After the jury returned a guilty verdict, the trial court polled the jury members on their verdict. Each juror confirmed that he or she reached a verdict freely and voluntarily.

Summerville argues that the jury charge was impermissibly coercive, but he has not identified any language in the pattern charge that was potentially coercive. See Scott v. State, 290 Ga. 883, 888 (6) (725 SE2d 305) (2012) (no error when defendant fails to identify any language in pattern or modified Allen charge that was potentially coercive). Although Summerville points to the short length of deliberations following the Allen charge as proof of the charge’s coerciveness, the fact that the verdict was apparently returned less than an hour later does not render it coercive. See id. (length of deliberations alone cannot make a charge coercive). As a result, the trial court did not err in giving the pattern Allen charge to the jury, and trial counsel cannot be said to have been ineffective for failing to object to the charge. See Sharpe v. State, 288 Ga. 565, 570 (8) (707 SE2d 338) (2011) (trial counsel not ineffective for failing to object to Allen charge where charge was not coercive).

Decided June 26, 2015.

Mark R. Jeffrey, for appellant.

Brian K. Fortner, District Attorney, Rachel D. Ackley, Assistant District Attorney, for appellee.

In sum, the trial court did not err in denying Summerville’s motion for new trial because the State introduced sufficient evidence to sustain his conviction for marijuana trafficking, there was no Brady violation, and trial counsel did not render ineffective assistance.

Judgment affirmed.

Andrews, P. J., and Branch, J., concur.

       In 2013, the General Assembly deleted “knowingly” throughout OCGA § 16-13-31, and the amended statute became effective on July 1, 2013. See Ga. L. 2013, p. 222, §§ 4, 21. Since the offense in this case occurred in 2010, the former statute applies. See Scott v. State, 295 Ga. 39, 42 (2) (757 SE2d 106) (2014).

        Allen v. United States, 164 U. S. 492 (17 SCt 154, 41 LE 528) (1896).


text:
    A15A0683.
    ROSS et al. v. WATERS.
    (774 SE2d 195)
   Miller, Judge.

Aprile B. Waters filed a medical malpractice suit against Dr. William A. J. Ross and Ross Orthopaedic Wellness Center, P.C., (collectively the “Defendants”) in DeKalb County State Court. Thereafter, the Defendants filed a motion to dismiss for improper venue and a motion to dismiss because they allege the statute of repose was not tolled under the Servicemembers Civil Relief Act (SCRA). The trial court denied both motions. We granted the Defendants’ application for interlocutory review and this appeal ensued. After a thorough review, we reverse because venue was improper in DeKalb County.

The record shows that on July 26, 2007, Waters received a left total hip arthroplasty by Dr. Ross at Ross Orthopaedic Wellness Center (“Ross Orthopaedic”) located in DeKalb County and having its registered office in Fulton County. After the surgery, Waters experienced severe pain in her left hip until October 2008, when she had another doctor perform a second surgery on her hip. Waters’s expert, an orthopedic surgeon, opined that the left total hip arthroplasty performed by Dr. Ross was not medically necessary and deviated from the required standard of care of orthopedic surgeons.

In July 2009, Waters filed a complaint for damages in Fulton County State Court against the Defendants alleging a claim of medical malpractice. On May 25, 2010, the case was stayed because Dr. Ross was beginning his military duty with the United States Army. The stay was lifted in June 2012, and the case was scheduled for trial on September 18, 2012. On September 14, 2012, Waters voluntarily dismissed her complaint. In the same month, Ross Orthopaedic was administratively dissolved.

On March 1, 2013, Waters filed a renewal action against the Defendants in DeKalb County State Court. Subsequently, the Defendants filed their motion to dismiss or transfer based on improper venue, arguing that venue was proper in Fulton County where Dr. Ross was domiciled and where Ross Orthopaedic had its registered office prior to its administrative dissolution. The Defendants also filed a motion to dismiss arguing that Waters’s complaint was barred under the five-year statute of repose for medical malpractice suits and that the statute of repose was not tolled by Dr. Ross’s military service under the SCRA.

Following a hearing, the trial court found that venue was proper in DeKalb County because Ross Orthopaedic had its principal office in DeKalb County prior to its dissolution. The trial court also found that the plain and unambiguous text of § 526 (a) of the SCRA tolled the five-year statute of repose for medical malpractice suits under OCGA § 9-3-71 (b).

1. The Defendants contend that the trial court erred by denying their motion to dismiss/transfer venue to Fulton County. We agree.

In ruling on a motion to dismiss, the trial court must accept as true all well-pled material allegations in the complaint and must resolve any doubts in favor of the plaintiff. We review the trial court’s ruling de novo.

(Citations and footnotes omitted.) Roberson v. Northrup, 302 Ga. App. 405 (691 SE2d 547) (2010).

“Suits against joint tortfeasors residing in different counties may be tried in either county.” (Punctuation and footnote omitted.) Colony Bank Worth v. Caterpillar Financial Svcs. Corp., 281 Ga. App. 397, 398 (636 SE2d 119) (2006). Here, Dr. Ross is a resident of Fulton County, so the question of whether venue is appropriate in DeKalb County requires this Court to look to the relevant statutory authority and case law involving venue for domestic corporations.

Under Georgia law, for the purpose of venue, a domestic corporation is deemed to reside in the county where its registered office or principal office is maintained, as shown by the records of the Secretary of State. OCGA § 14-2-510 (b) (1). In tort actions, venue will also lie in the county where the cause of action arose, provided the corporation has an office and transacts business in that county. OCGA § 14-2-510 (b) (3). “[T]he determination of venue must be based upon the facts as they exist at the time that suit is initiated, not as the facts may have existed at some previous point in time.” (Citations omitted.) Savannah Laundry & Machinery Co. v. Owenby, 186 Ga. App. 130, 131 (366 SE2d 787) (1988).

Here, while it is undisputed that the cause of action arose in DeKalb County, by March 2013, when Waters filed her renewal suit, Ross Orthopaedic had been administratively dissolved and no longer had an office or transacted business in DeKalb County. Consequently, venue lies where Ross Orthopaedic last maintained its registered office prior to dissolution, which was in Fulton County. See Savannah Laundry, supra, 186 Ga. App. at 132 (proper venue in suit against dissolved corporation was county wherein dissolved corporation had its last registered office); see also OCGA § 14-2-510 (b) (3).

In its ruling on venue, the trial court relied upon former OCGA § 14-2-293, now amended as OCGA § 14-2-1410, which provides for the post-dissolution survival of pre-dissolution claims against a corporation. The trial court’s reliance on former OCGA § 14-2-293 is misplaced, however, because that statute did not specifically address the issue of venue for a survival action against a dissolved corporation. See Savannah Laundry, supra, 186 Ga. App. at 131. Therefore, the trial court erred in denying the Defendants’ motion to dismiss and in finding that venue was proper in DeKalb County.

Since venue did not lie in DeKalb County, the trial court did not have the authority to rule on the Defendants’ motion to dismiss based on an expiration of the statute of repose. See Chung v. Hair Trend USA, 322 Ga. App. 429, 432 (745 SE2d 681) (2013) (“A trial court without venue lacks authority to issue an order or judgment, and any such order or judgment is void.”) (citation omitted). Thus, we remand this case to the DeKalb County trial court with direction to transfer this case to Fulton County to address the merits of the Defendants’ statute of repose argument. See Coastal Transport v. Tillery, 270 Ga. App. 135, 140 (3) (605 SE2d 865) (2004) (“Georgia’s Constitution requires a court to transfer to the appropriate court in the state any civil case in which it determines that jurisdiction or venue lies elsewhere”).

2. Based on our holding in Division 1, we need not address the Defendants’ second claim of error.

Decided June 26, 2015.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Robert G. Tanner, Robert P. Marcovitch, Henry C. DeBardeleben TV, for appellants.

Kenneth M. Sissel, Alan B. Gordon, for appellee.

Judgment reversed and case remanded with direction.

Andrews, P. J., and Branch, J., concur.