author: Boggs, Judge.

text:
    A11A1911.
    HARRISON v. THE STATE.
    (722 SE2d 774)
   Boggs, Judge.

Bernard Harrison III was indicted for felony obstruction of a law enforcement officer by offering violence, misdemeanor obstruction of a law enforcement officer, and interference with government property. A jury found him guilty of the lesser included offense of misdemeanor obstruction on the first charge and guilty of the remaining two charges. His amended motion for new trial was denied, and he appeals only as to his conviction for interference with government property. Harrison contends that the trial court erred in its charge to the jury and in denying his motion in limine. He also asserts ineffective assistance of counsel. Finding no error, we affirm.

The facts, construed to support the jury’s verdict, show that two Douglas County sheriffs deputies attempted to execute an arrest warrant for a probation violation on Harrison. After unsuccessfully visiting Harrison’s home, they located him at a nearby swimming pool and informed him that he was under arrest. Harrison asked for permission to put on his clothes, which were lying on a chair about five feet from the pool, and the deputies allowed him to do so. But after Harrison sat down to put on his shoes and a deputy told him he could not hug his girlfriend goodbye, he stood up and “bolted.” One of the deputies grabbed him, he “whipped [the deputy] around,” they struggled on the edge of the pool, and then both fell into the water. Harrison freed himself from the officer in the water, emerged from the pool, and ran toward the gate. The second officer attempted to stop Harrison, made contact with him, and fell to the ground with Harrison, breaking his glasses and sustaining cuts and abrasions on his face. Harrison again freed himself and fled through the gate, not to be seen again until he turned himself in several days later. The fall into the pool ruined the officer’s cell phone and damaged his new walkie-talkie, both the property of the Douglas County Sheriffs Department. The deputy testified that the property was damaged while Harrison was obstructing and hindering his attempts to arrest him.

1. Harrison first asserts that the trial court erred in giving the charge:

An injury or damage is proximately caused by an act whenever it appears from the evidence in the case that the act played a substantial part in bringing about or actually causing the injury or damage and that the injury or damage was either a direct result or a reasonably probable consequence of an act of the defendant.

Harrison contends that a causation analysis is inapplicable to the offense of interference with government property.

The language in question is taken from Pitts v. State, 253 Ga. App. 373, 374 (1) (559 SE2d 106) (2002), a vehicular homicide case. Pitts led the police on a high speed chase that ended in a collision; his eight-week-old daughter, who was a passenger in his vehicle, was seriously injured and later died. Pitts contended the evidence was insufficient to support the conviction because the police officer’s attempt to execute a stopping maneuver was the cause of the collision, not any action on his part. We observed that the trial court instructed the jury on “direct and proximate cause,” id. at 375 (1), and held the evidence sufficient for the jury to conclude that the victim’s death was “a reasonably probable consequence” of the appellant’s actions. Id.

Similarly, in Edwards v. State, 255 Ga. App. 269 (565 SE2d 127) (2002) (full concurrence in Division 2), after discovering money and a bag of drugs in Edwards’ car, a police officer told Edwards he was under arrest. Edwards snatched the bag, struggled with the officer, broke away from him, and fled, but dropped the bag when he ran into the side of the officer’s patrol car. Id. at 269-270. His collision with the car broke off a mirror, “which was the basis for the charge of interference with government property.” Id. at 270, n. 6. Edwards challenged the sufficiency of the evidence on this charge, and we observed:

[A] person commits the offense of interference with government property when he damages government property. OCGA § 16-7-24 (a). Here, viewed in the light most favorable to the verdict, the record shows that Edwards broke the mirror on the patrol car upon running into it. Thus, this case is quite similar to Fields v. State, 167 Ga. App. 400, 401 (2) (306 SE2d 695) (1983), where evidence that a marked sheriffs car suffered damage when it locked bumpers with the defendant’s car during a high-speed chase was found sufficient under Jackson v. Virginia[, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979)].

Id. at 272 (2) (c).

Like the defendants in Edwards and Pitts, Harrison did not have any direct intention to damage government property, but did have the intention to resist his arrest and flee from the police. Our Supreme Court

has explained that proximate cause is the standard for criminal cases in general. In a criminal case, proximate cause exists when the accused’s act or omission played a substantial part in bringing about or actually causing the victim’s injury or damage and the injury or damage was either a direct result or a reasonably probable consequence of the act or omission.

(Citations and punctuation omitted.) State v. Jackson, 287 Ga. 646, 648-649 (2) (697 SE2d 757) (2010).

Harrison asserts that actual intent is required here, because cases involving criminal damage to property require a showing of intent. But those statutes, as well as the criminal trespass statute, include a requirement that the person “intentionally” (OCGA §§ 16-7-21 (a), (e), 16-7-23 (a) (1)), “knowingly” (OCGA §§ 16-7-21 (b), 16-7-22 (a)), or “recklessly or intentionally” (OCGA § 16-7-23 (a) (2)) commit the proscribed act. OCGA § 16-7-24 (a), in contrast, contains no such requirement, but states in its entirety: “A person commits the offense of interference with government property when he destroys, damages, or defaces government property.” Compare OCGA § 16-7-24 (b), which requires that a person “forcibly” interfere with or obstruct passage into or from government property. Harrison argues that absurd results may arise from this distinction. But “statutes are presumed to be enacted by the General Assembly with full knowledge of the existing condition of the law and with reference to it, and are therefore to be construed in connection and in harmony with the existing law.” (Citations and punctuation omitted.) Burke v. State, 274 Ga. App. 402, 404 (2) (618 SE2d 36) (2005). Any change in the intent requirements of the statute is for the legislature, not this court.

Here, that a police officer may fall into the water and damage his equipment is a reasonably probable consequence of resisting arrest and struggling with the officer at the side of a swimming pool. In the absence of a specific statutory provision, the general standard of proximate cause applies. The trial court’s instruction on proximate cause therefore was not error.

2. Harrison also complains that the trial court erred in denying his motion in limine to prohibit reference to the fact that his arrest was on a probation violation. But the trial court found the evidence relevant as part of the res gestae and observed, correctly, that the reason for Harrison’s arrest also was relevant because Harrison contended during voir dire and at trial that he ran from the police because he was frightened and confused.

Evidence which incidentally puts character in issue may be admitted if otherwise relevant. The evidence at issue here was relevant to explain why the officers went to [defendant’s] residence. That the evidence showed that [defendant] was on probation and/or in violation of his probation does not change the result here.

(Citations and punctuation omitted.) Jones v. State, 268 Ga. App. 246, 249-250 (2) (601 SE2d 763) (2004) (testimony that officers went to defendant’s residence to execute a probation warrant and introduction of arrest warrant with original cocaine possession offense redacted did not impermissibly place his character in evidence). This enumeration of error is without merit.

3. Finally, Harrison contends that his trial counsel was ineffective. Under the two-part test established in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), Harrison

must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong.

(Citations and punctuation omitted.) Evans v. State, 288 Ga. 571, 576 (7) (707 SE2d 353) (2011).

(a) Harrison first asserts that trial counsel was ineffective in failing to object to the introduction of testimony that officers sought to arrest him on a warrant for violation of his probation and the introduction of that warrant. But, as discussed in Division 2, above,

[tjestimony explaining the reason for appellant’s arrest need not be excluded simply because it incidentally shows the commission of another crime. Since the evidence at issue did not impermissibly put [Harrison’s] character in issue, [Harrison] cannot complain of his trial counsel’s failure to object to the evidence.

(Citations and punctuation omitted.) Jones, supra at 250 (2).

(b) Harrison next asserts that his trial counsel was ineffective in failing to object to photographs of the injuries suffered by one of the deputies. But Harrison’s trial counsel testified at the hearing on the motion for new trial that he made that decision for tactical and strategic reasons in support of his successful attempt to obtain a not guilty verdict on the charge of felony obstruction by offering violence to an officer:

Officer Pounds was really our star witness and he got up here and he said he didn’t see . . . Mr. Harrison kick Officer Fields. That was in my mind what convinced the jury that it wasn’t felony obstruction. You know, one of our techniques or tactics was not to be adversarial with Officer Pounds at all and to actually apologize for what happened to Officer Pounds.

Decided February 1, 2012.

Mark R. Jeffrey, for appellant.

David McDade, District Attorney, James A. Dooley, Emily K. Richardson, Assistant District Attorneys, Jeffrey L. Ballew, for appellee.

So I didn’t want to — you know, I kind of felt like objecting to that and saying that that wasn’t important might somehow take that feeling of remorsefulness away from the jury and we didn’t want to do anything that seemed like we were discrediting or arguing with Officer Pounds about what happened because his version of the facts is what we wanted the jury to accept.

In these circumstances,

[i]t is sufficient to say that the decisions on which witnesses to call, how to conduct cross-examinations, and what objections to make are strategic and tactical decisions that, after thorough investigation and client consultation, are virtually unchallengeable and do not amount to ineffective assistance. [Cit.]

Miller v. State, 273 Ga. App. 171, 173-174 (4) (614 SE2d 796) (2005). This is particularly true because trial counsel was successful in obtaining a verdict of not guilty on the felony obstruction charge. “This strongly supports the conclusion that the assistance actually rendered by defendant’s trial counsel fell within that broad range of reasonably effective assistance which members of the bar in good standing are presumed to render.” (Citation and punctuation omitted.) Wilson v. State, 306 Ga. App. 827, 832 (2) (b) (703 SE2d 400) (2010). The trial court did not err in denying Harrison’s motion for new trial on the ground of ineffectiveness of counsel.

Judgment affirmed.

Mikell, P. J., and Dillard, J., concur.

       The trial court also charged the jury that intent “may be in your discretion inferred when it is a natural and necessary consequence of an act. Whether or not you draw such an inference is a matter solely within your discretion.”


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A11A2127.
    CHRISTOPHER v. SINYARD et al.
    (723 SE2d 78)
   PHIPPS, Presiding Judge.

After obtaining a default judgment against Spellbrook Builders, Inc., Anthony and Ellen Sinyard filed a lawsuit against Spellbrook Builders’ officers, R. Dennis Christopher and Joe Spell, seeking to pierce the corporate veil and hold them personally liable for the judgment. Following a nonjury trial, the court granted judgment in favor of the Sinyards and also ordered Christopher and Spell to pay attorney fees. Christopher appeals. For the reasons that follow, we affirm.

1. Christopher contends that the trial court erred in disregarding the corporate status of Spellbrook Builders and holding him personally responsible for the corporation’s obligations. We disagree.

The concept of piercing the corporate veil is applied in Georgia to remedy injustices which arise where a party has overextended his privilege in the use of a corporate entity in order to defeat justice, perpetrate fraud or to evade contractual or tort responsibility. Because the cardinal rule of corporate law is that a corporation possesses a legal existence separate and apart from that of its officers and shareholders, the mere operation of corporate business does not render one personally liable for corporate acts. . . .There must be evidence of abuse of the corporate form. [The] [p]laintiff must show that the defendant disregarded the separateness of legal entities by commingling on an interchangeable or joint basis or confusing the otherwise separate properties, records or control.
Where those who own or control a corporation have brought about such a unity of interest and ownership as between themselves and the corporation, the unpaid corporate creditor may look to them for satisfaction of the corporation’s debts.

“[W]hen litigated, the issue of piercing the corporate veil is for the [trier of fact], unless there is no evidence sufficient to justify disregarding the corporate form.”

The evidence, construed most strongly in support of the judgment, showed that in 2005, the Sinyards contracted with Spellbrook Builders for the construction of a residence. Toward the end of construction, “punch lists” were created, setting out problems that needed to be corrected. By the March 2006 closing date, some of the punch list items had not been completed. Wanting to proceed with the closing, the parties agreed in writing that Spellbrook Builders would complete the work after the closing. At closing, Spell executed a seller’s affidavit on behalf of Spellbrook Builders stating that the building had been completed and that the work and materials were warranted for one year. Christopher met with Anthony Sinyard five days after the closing to discuss the punch lists and the fact that subcontractors were threatening to place liens on the house. When Anthony Sinyard reviewed the punch lists with Christopher, Christopher stated that he could not help and then drove away. The work was never completed. According to Spell, there was no money left after the closing, and the work was not completed because “[w]e were out of money.” Similarly, Christopher knew, at the time of the closing, that Spellbrook Builders “would not be doing any further business.”

Regarding the separateness of Spellbrook Builders’ existence from that of its officers, the evidence showed the following: Spell-brook Builders was incorporated in 2004, and in May 2008 was administratively dissolved or had its certificate revoked by the Secretary of State of the State of Georgia for failing to file its annual registration; Christopher and Spell, the only officers, never signed the corporation’s bylaws; no stock certificates were ever issued; no minutes of corporate meetings were ever kept; no annual registrations for the corporation were filed after 2005; the lots upon which Spellbrook Builders built its houses were titled in Christopher’s name and then transferred to Spellbrook Builders at or near closing (and then conveyed to third parties); the corporation did not have a physical location; funds obtained at the closing of the Sinyards’ home and during construction were paid to Christopher’s and Spell’s other businesses; Christopher made undocumented loans to Spellbrook Builders; and Christopher and Spell paid some of the.corporation’s creditors from their personal funds.

Based on the above and other evidence, the trial court held that Christopher and Spell were personally liable for Spellbrook Builders’ debts. The court found that, inter alia, other than the initial creation of the corporation, Christopher and Spell had ignored the corporate formalities required by law, the corporation was undercapitalized, and Spell executed the seller’s affidavit at closing (stating that all debts and obligations had been paid) with knowledge that it was false in order to induce the Sinyards to close. The court concluded that to allow Christopher and Spell to avoid liability through the use of the corporate entity under the facts of this case would defeat justice. The trial court did not err in disregarding the corporate form.

Here, there was evidence that Christopher and Spell abused the corporate form and disregarded Spellbrook Builders’ separateness by commingling on an interchangeable basis or confusing the otherwise separate properties, records or control. There was also evidence that the officers failed to observe corporate formalities, undercapitalized the corporation, and committed fraud at closing. In sum, the trial court was authorized to conclude that the corporation was a mere alter ego or business conduit of Christopher and Spell.

Christopher asserts that the failure to observe some corporate formalities is not unusual in a “two-man business.” But, as we stated regarding the conduct of a corporation’s principal shareholder or owner,

if the individual who is the principal shareholder or owner of the corporation conducts his private and corporate business on an interchangeable or joint basis as if they were one, then he is without standing to complain when an injured party does the same. Under such circumstances, the court may disregard the corporate entity.

The court was authorized to find from the evidence presented that the corporate form had been abused, and that adherence to the doctrine of corporate entity would in this case promote injustice or promote fraud.

2. Christopher contends that the trial court erred in ordering him to pay attorney fees because he took no part in any of the acts relied upon by the trial court in awarding fees pursuant to OCGA § 13-6-11. This argument is without merit.

OCGA § 13-6-11 pertinently authorizes an award of attorney fees where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. An award of attorney fees under OCGA § 13-6-11 will be affirmed if there is any evidence to support it.

The trial court found that Christopher and Spell had acted in bad faith by promising to correct the items on the punch lists when they had no intention to make the corrections and knew the corporation lacked the funds needed to do so; and by fraudulently swearing that all debts due on the property were paid prior to closing. The court further found that Christopher and Spell had caused the Sinyards unnecessary trouble and expense by ignoring the original complaint filed against the corporation (noting that Christopher had been personally served with that complaint), the result being the entry of a default judgment against the corporation, and then, upon being sued personally, attempting to use the corporate form to avoid personal responsibility.

As discussed above, there was evidence to support the trial court’s findings. And while Christopher argues that only Spell was involved in any fraud or misrepresentation, there was evidence that Christopher was responsible for the “financial part” of Spellbrook Builders, including handling the corporate checking accounts; Spell-brook Builders’ bills had not been paid as represented at closing; Spellbrook Builders was insolvent and lacked funds to pay for repairs at closing; Christopher’s other businesses received funds at the closing of the Sinyards’ home; he maintained the real property in his name until closing or near closing; he made no effort after closing to complete the agreed-upon work on the Sinyards’ home; and he ignored the lawsuit filed against Spellbrook Builders and served upon him, then, after the Sinyards pursued him personally, he defended that action based on the validity of the corporate entity. Notably, issues of fact regarding whether Christopher acted in bad faith and put the Sinyards to unnecessary trouble and expense within the meaning of OCGA § 13-6-11 were for the finder of fact to decide. Because there was some evidence that Christopher acted in bad faith, was stubbornly litigious or caused the Sinyards unnecessary trouble and expense, the trial court did not err in ordering Christopher to pay attorney fees.

Decided February 1, 2012.

Alexander, Royston, Hardman & Shinall, R. Phillip Shinall III, for appellant.

Crudup & Hendricks, Hillary W. Edgar, for appellees.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

       Spell is not a party to the appeal.

        Soerries v. Dancause, 248 Ga. App. 374, 375 (546 SE2d 356) (2001) (citations omitted).

        Ishak v. Lanier Contractors Supply, 254 Ga. App. 237, 238 (1) (561 SE2d 883) (2002) (footnote omitted).

        Soerries, supra (citations omitted); see generally Bourke v. Webb, 277 Ga. App. 749 (627 SE2d 454) (2006) (in a bench trial, the judge sits as trier of fact and the court’s findings are analogous to a jury’s verdict and should not be disturbed if there is any evidence to support them).

       See J-Mart Jewelry Outlets v. Standard Design, 218 Ga. App. 459, 461 (1) (462 SE2d 406) (1995).

       See, e.g., OCGA §§ 14-2-206 (a) (pertinently providing that the incorporators or directors shall adopt initial bylaws for the corporation), 14-2-1601 (pertinently requiring the keeping of minutes of meetings), and 14-2-1622 (pertinently requiring the filing of an annual registration with the Secretary of State).

       Compare Nat Katz & Assocs. v. Barber, 255 Ga. App. 207, 208-209 (1) (564 SE2d 802) (2002).

        Baillie Lumber Co. v. Thompson, 279 Ga. 288, 289-290 (1) (612 SE2d 296) (2005).

       See Soerries, supra at 377 (citation omitted); Abbott Foods of Ga. v. Elberton Poultry Co., 173 Ga. App. 672, 673 (2) (327 SE2d 751) (1985).

       See Ishak, supra at 237-238 (1); Soerries, supra at 376 (trial court was authorized to find from the evidence presented that shareholder commingled individual and corporate assets by personally assuming the corporation’s financial liabilities or using corporate funds to pay noncorporate expenses); Dews v. Ratterree, 246 Ga. App. 324, 326-327 (540 SE2d 250) (2000) (where evidence conflicted as to whether owner/shareholder of corporation commingled corporate and personal assets, issues of fact existed regarding whether corporate veil should be pierced). Cf. Heyde v. Xtraman, Inc., 199 Ga. App. 303, 306 (404 SE2d 607) (1991); Abbott Foods of Ga., supra; see also Kissun v. Humana, Inc., 267 Ga. 419, 421 (479 SE2d 751) (1997).

        Spring Lake Property Owners Assn. v. Peacock, 260 Ga. 80, 81 (390 SE2d 31) (1990); City of Lilburn v. Astra Group, 286 Ga. App. 568, 570 (649 SE2d 813) (2007).

        See Backus Cadillac-Pontiac v. Ernest, 195 Ga. App. 579, 581 (2) (394 SE2d 367) (1990) (questions concerning bad faith, stubborn litigiousness, and unnecessary trouble and expense, under OCGA § 13-6-11, are generally for the jury to decide).

       See generally Clearwater Constr. Co. v. McClung, 261 Ga. App. 789, 792 (584 SE2d 61) (2003) (affirming attorney fee award pursuant to OCGÁ § 13-6-11 based on defendant causing unnecessary trouble and expense where defendant had “sue me” attitude regarding the completion of repairs); Graves v. Diambrose, 243 Ga. App. 802, 803-804 (2) (534 SE2d 490) (2000) (affirming attorney fee award where bad faith finding was supported by defendant’s failure to make repairs to home as agreed, and finding of stubborn litigiousness was supported by defendant forcing plaintiffs to file lawsuit to recover damages defendant admittedly caused).


author: Andrews, Judge.

text:
    A11A2342.
    BIG SANDY PARTNERSHIP, LLC et al. v. BRANCH BANKING & TRUST COMPANY.
    (723 SE2d 82)
   Andrews, Judge.

Branch Banking & Trust Company (BB&T) sued Big Sandy Partnership, LLC; Harlan Forest, LLC; and Thomas H. McCook, Jr. (collectively referred to as the Debtors) to collect amounts due BB&T on promissory notes given or guaranteed by the Debtors. The Debtors appeal from the grant of summary judgment in favor of BB&T on the notes and guarantees. For the following reasons, we affirm.

1. The Debtors claim that the trial court erred in granting summary judgment in favor of BB&T because genuine issues of fact remain as to their affirmative defenses.

It is undisputed that the Debtors defaulted and failed to pay the amounts due under the terms of the notes and guarantees. Under OCGA § 9-11-56, BB&T had the burden on its motion for summary judgment to establish that there was no genuine issue of fact and that it was entitled to judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Where, as here, the record shows that the promissory notes and guarantees were duly executed by the Debtors and are in default, a prima facie right to judgment as a matter of law was established and the burden of production shifted to the Debtors to produce or point to evidence in the record which established an affirmative defense. Miller v. Calhoun/Johnson Co., 230 Ga. App. 648, 649-650 (497 SE2d 397) (1998); Gentile v. Bower, 222 Ga. App. 736, 738 (477 SE2d 130) (1996); Reece v. Chestatee State Bank, 260 Ga. App. 136, 138 (579 SE2d 11) (2003); Helton v. Jasper Banking Co., 311 Ga. App. 363-364 (715 SE2d 765) (2011). In response to BB&T’s motion for summary judgment, the Debtors were not entitled to rest on allegations in their pleadings to establish affirmative defenses on which they had the burden of proof at trial, but were required to come forward with or point to specific facts in the record to establish affirmative defenses. Southeast Reducing Co. v. Wasserman, 229 Ga. App. 1, 4-5 (493 SE2d 201) (1997). Except as to the defense that BB&T failed to mitigate damages, the Debtors did not produce or point to facts in support of their alleged affirmative defenses. Rather, they argue on appeal that the trial court erred in granting summary judgment in favor of BB&T as to their alleged defenses because BB&T “failed to present sufficient evidence to pierce Appellants’ pleadings and overcome each of the Appellants’ defenses.” Contrary to the Debtors’ contentions, BB&T was not required in support of its motion for summary judgment to present evidence to disprove affirmative defenses alleged in the Debtors’ pleadings on which the Debtors had the burden of proof at trial. Bell v. Smith, 227 Ga. App. 17, 18-19 (488 SE2d 91) (1997). Instead, BB&T carried its burden on summary judgment by pointing out the absence of any evidence in the record to support the alleged affirmative defenses. Imex Intl., Inc. v. Wires Engineering, 261 Ga. App. 329, 339 (583 SE2d 117) (2003); Lau’s Corp., 261 Ga. at 491.

2. The Debtors claim that the trial court erred in granting summary judgment in favor of BB&T because there was a genuine issue of material fact as to their affirmative defense that BB&T failed to mitigate damages as required by OCGA § 13-6-5.

In support of their mitigation of damages defense, the Debtors pointed to evidence in the record showing that, as security for the notes, BB&T was the grantee of security deeds over real property owned by the Debtors which, upon default on the notes, gave BB&T the right to sell the property by non-judicial foreclosure. The Debtors claim that, to mitigate damages resulting from default, BB&T was required under OCGA § 13-6-5 to foreclose under the security deeds and use the proceeds from the sale of the property to reduce the amount due under the notes and guarantees.

Under OCGA § 13-6-5, “[w]here by a breach of contract a party is injured, he is bound to lessen the damages as far as practicable by the use of ordinary care and diligence.” BB&T was not bound to mitigate damages under OCGA § 13-6-5 because the notes and guarantees at issue contained absolute promises by the Debtors to pay the amounts due, and “OCGA § 13-6-5 does not apply to an absolute promise to pay. Reid v. Whisenant, 161 Ga. 503, 509-510 (131 SE 904) [(1926)]; Haley v. Oaks Apartments[, Ltd.], 173 Ga. App. 44, 46 (325 SE2d 602) (1984).” American Express Travel Related Svcs. Co. v. WEB, Inc., 261 Ga. 480, 483 (405 SE2d 652) (1991). Moreover, this claim fails because it is well-settled that “[t]he holder of a note who is also the grantee in a deed to secure the indebtedness of the note is not forced to exercise the power of sale in the deed. He may sue on the note or exercise the power of sale.” REL Development, Inc. v. Branch Banking & Trust Co., 305 Ga. App. 429, 431 (699 SE2d 779) (2010) (citation and punctuation omitted). The Debtors concede that BB&T had these rights under the debt instruments at issue.

Decided February 1, 2012

Stone & Baxter, Christopher W. Terry, Matthew S. Cathey, for appellants.

Quirk & Quirk, Kevin E. Quirk, Joseph P. Farrell, for appellee.

Judgment affirmed.

Phipps, P. J., and McFadden, J., concur.


author: McFadden, Judge.

text:
    A11A1773.
    HOSCH v. COLONIAL PACIFIC LEASING CORPORATION.
    (722 SE2d 778)
   McFadden, Judge.

Colonial Pacific Leasing Corporation filed suit against Edward Hosch to collect money owed after Hosch had defaulted on four loans. After the parties filed opposing motions for summary judgment, the trial court granted summary judgment in favor of Colonial and entered final judgment against Hosch in the principal amount of $183,951, plus interest and attorney fees. Hosch appeals, but because the evidence shows no genuine issue of material fact and that Colonial Pacific is entitled to judgment, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the nonmovant.

(Citations and punctuation omitted.) Robinson v. Global Resources, 300 Ga. App. 139 (684 SE2d 104) (2009).

So viewed, the evidence shows that between May 2006 and April 2008, Hosch entered into four loan agreements with Citicapital Commercial Corporation to finance the purchase of heavy construction equipment. In August 2008, Citicapital merged into Citicorp Leasing, Inc., which then changed its name to GE Capital Commercial, Inc. A year later, in August 2009, GE Capital transferred the loans to Colonial. Hosch defaulted under the loans, after which Colonial served a notice of default and demanded payment.

1. Hosch claims that the trial court erred in denying his motion for summary judgment on the ground that Colonial is not the real party in interest. However, summary judgment cannot properly be granted to a defendant on the basis of a real-party-in-interest objection because such an objection is a matter in abatement that does not go to the merits of the action. First Christ Holiness Church v. Owens Temple First Christ Holiness Church, 282 Ga. 883, 886 (655 SE2d 605) (2008).

2. Hosch contends that the trial court erred in granting Colonial’s motion for summary judgment because there is no evidence that the contracts were assigned to Colonial. However, the contention is refuted by the record, which includes affidavits of a GE litigation specialist, a written assignment and other documents establishing that Hosch’s four loans were assigned to Colonial. Hosch has presented no contradictory evidence showing that the loans were not assigned to Colonial, and instead submitted his own affidavit stating that he had not been notified of any such assignment. However, the loan agreements expressly provide that the lender may transfer or assign any or all of its rights under the agreements without notice to or the consent of Hosch.

“A party may assign to another a contractual right to collect payment, including the right to sue to enforce the right. But an assignment must be in writing in order for the contractual right to be enforceable by the assignee.” (Citations and punctuation omitted.) Wirth v. Cach, LLC, 300 Ga. App. 488, 489 (685 SE2d 433) (2009). Because the record, as noted above, contains a written assignment of the loans to Colonial, as well as other evidence of the assignment, the trial court did not err in granting summary judgment to Colonial. Compare Hutto v. CACV of Colorado, 308 Ga. App. 469, 471-472 (1) (707 SE2d 872) (2011) (no evidence of assignment of credit card agreement).

3. Hosch’s further claim that the trial court erroneously made a sua sponte award of damages to Colonial is without merit. Contrary to Hosch’s claim, the trial court’s award was not made sua sponte, but was made pursuant to Colonial’s specific request in its motion for summary judgment for damages in the principal amount of $183,951, plus interest and attorney fees. The amounts requested were supported by affidavit evidence, and Hosch has failed to point to any other evidence in the record creating a genuine issue of material fact as to the damages alleged and proved by Colonial. Accordingly, “the trial court did not err in granting summary judgment based on the evidence contained therein.” (Citations omitted.) Boyd v. Calvary Portfolio Svcs., 285 Ga. App. 390, 392 (1) (646 SE2d 496) (2007).

Decided February 2, 2012

Gray Chamberlin, William E. Gray II, for appellant.

Thompson, O’Brien, Kemp & Nasuti, Ted W. Hight III, for appellee.

Judgment affirmed.

Barnes, E J., and Blackwell, J., concur.


author: Dillard, Judge.

text:
    A11A1906.
    THE STATE v. MINCHER.
    (723 SE2d 300)
   Dillard, Judge.

Rachel Mincher was charged by accusation with DUI per se (under 21), DUI less safe, and making an improper right turn. Mincher filed a motion to suppress, challenging the lawfulness of the traffic stop, which the trial court granted. The State now appeals, arguing that the trial court erred in finding that the arresting officer had no reasonable articulable suspicion to justify the traffic stop. For the reasons set forth infra, we affirm.

Construing the evidence to uphold the trial court’s findings and judgment, the record shows that around 4:30 a.m. on December 19, 2010, Mincher and a friend were traveling in Mincher’s vehicle in the right lane of Highway 278 near Rockmart, when they approached the intersection with Highway 113. As Mincher’s vehicle arrived at the intersection, the traffic light facing her was red, and Mincher stopped her vehicle several feet before the actual stop line.

While waiting for the traffic light to turn green, Mincher realized that her vehicle was nearly out of gas; and noticing a gas station several hundred yards off to the right on Highway 113, she decided to turn right at the intersection despite not being in the dedicated turn lane. But before doing so, Mincher turned on her right turn signal, looked back over her right shoulder to make sure that no other vehicle was approaching in the right turn lane, and then turned right onto Highway 113. At that same moment, a Rockmart police officer, who had been traveling in the same direction on Highway 278 and who had also stopped at the same intersection, saw Mincher’s vehicle and decided to initiate a traffic stop for what he believed was an illegal right turn. Consequently, the officer turned right onto Highway 113 to follow Mincher and turned on his blue lights just as she was pulling into the gas station.

Mincher stopped her vehicle in front of the gas station’s pumps, and the officer parked his vehicle directly behind her. The officer then approached Mincher’s vehicle and explained to her why he had initiated the traffic stop. While doing so, the officer smelled the odor of an alcoholic beverage. And while Mincher denied consuming any alcoholic beverage when asked, the officer nevertheless administered an alco-sensor test, which indicated that Mincher—who was under the age of 21—had indeed consumed alcohol. The officer then had Mincher perform several field sobriety tests and, as a result, he ultimately arrested her for DUI.

Thereafter, Mincher was charged by accusation with driving with more than 0.02 percent blood alcohol content while under the age of 21, driving under the influence of alcohol to the extent that she was a less-safe driver, and making an improper right turn. Mincher subsequently filed a motion to suppress the evidence garnered as a result of the police officer’s traffic stop, arguing that the officer had no reasonable articulable suspicion to justify the stop.

During the hearing on Mincher’s motion to suppress, the arresting officer testified that he initiated the traffic stop after observing Mincher make what he believed to be an illegal right turn. In addition, the State played a video recording of the stop, which was captured by the recording device on the dashboard of the police officer’s vehicle. Mincher also testified at the hearing and claimed that the only reason she did not enter the designated right turn lane sooner was because she was unfamiliar with the area, but that once she decided to turn right, she signaled and looked to make sure no other vehicles were approaching from behind before proceeding. At the hearing’s conclusion, the trial court granted Mincher’s motion to suppress and issued an order to that effect two weeks later. This appeal follows.

At the outset, we note that “[o]n a motion to suppress, the burden of proving the search was lawful is on the [Sítate.” And in reviewing a trial court’s decision on a motion to suppress, “we construe the evidence most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility of the witnesses are adopted unless they are clearly erroneous.” Additionally, because the trial court is the trier of fact, “its findings are analogous to a jury verdict and will not be disturbed if any evidence supports them.”

In its sole enumeration of error, the State contends that the trial court erred in granting Mincher’s motion to suppress because her right turn was illegal, and thus, it provided the officer with sufficient, reasonable articulable suspicion to warrant the traffic stop. We disagree.

As the Supreme Court of the United States held in Terry v. Ohio, “police-citizen encounters are generally categorized into three tiers: consensual encounters; brief investigatory stops, which require reasonable suspicion; and arrests that must be supported by probable cause.” With regard to traffic stops, “although an officer may conduct a brief investigative stop of a vehicle, such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct.” Such a suspicion need not meet the standard of probable cause, “but must be more than mere caprice or a hunch or an inclination.” Indeed, an investigatory stop must be “justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.”

Here, the State argues that the officer had a reasonable articu-lable suspicion justifying the traffic stop because Mincher made an illegal right turn in violation of OCGA § 40-6-120 (1), which provides that: “[b]oth the approach for a right turn and a right turn shall be made as close as practicable to the right-hand curb or edge of the roadway. ...” However, after hearing the officer and Mincher’s testimony and reviewing the exhibits, including the video of the traffic stop, the trial court found that Mincher used her turn signal, checked for traffic behind her to ensure that no one’s safety was at risk, and ultimately made her turn from the dedicated right turn lane. And based on these findings, the trial court concluded that Mincher’s right turn was not illegal, and thus, there was no objective basis for a reasonable suspicion that she was, or was about to be, engaged in criminal activity. Construed most favorably to uphold the trial court’s judgment, we conclude that the trial court did not err in finding that the officer’s traffic stop was unreasonable and not based on the observation of a traffic offense. Accordingly, we affirm the trial court’s grant of Mincher’s motion to suppress.

Decided February 2, 2012.

Robert E. Brooks, Jr., District Attorney, for appellant.

Allen M. Trapp, Jr., for appellee.

Judgment affirmed.

Mikell, P. J., and Boggs, J., concur.

        Hammont v. State, 309 Ga. App. 395, 396 (710 SE2d 598) (2011).

       Although Highway 278 is predominantly a two-lane road, as it approaches Highway 113, there is a dedicated right turn lane for motorists wishing to turn right at that intersection.

        See OCGA § 40-6-391 (k) (1).

        See OCGA § 40-6-391 (a) (1).

        See OCGA § 40-6-120 (1).

        Walker v. State, 299 Ga. App. 788, 788 (683 SE2d 867) (2009).

        Hammont, 309 Ga. App. at 396 (punctuation omitted).

        Id. (punctuation omitted).

       392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

        Groves v. State, 306 Ga. App. 779, 780 (703 SE2d 371) (2010) (punctuation omitted).

        Darden v. State, 293 Ga. App. 127, 130 (1) (a) (666 SE2d 559) (2008) (punctuation omitted).

        Id. (punctuation omitted).

        Id. (punctuation omitted; emphasis supplied).

        See State v. Morgan, 260 Ga. App. 263, 264-65 (1) (581 SE2d 296) (2003) (holding that trial court was authorized to find that defendant’s right turn was not illegal and thus officer had no reasonable articulable suspicion to justify traffic stop).

        See id. at 265 (1).


author: DOYLE, Presiding Judge.

text:
    A11A1522.
    SUMNER v. BATCHELOR.
    (722 SE2d 858)
   DOYLE, Presiding Judge.

This appeal arises from the trial court’s denial of a motion to dismiss a petition for change of custody based on lack of jurisdiction. For the reasons that follow, we reverse the trial court’s order denying the motion to dismiss.

Sherry N. Sumner and Marcus C. Batchelor received a final order of divorce in the Superior Court of Effingham County on April 2, 2009, which order awarded custody of the couple’s minor children to Sumner. Thereafter, Sumner and the children moved to Chatham County. In August 2010, Batchelor filed a change-of-custody petition in the Superior Court of Effingham County. Although Batchelor’s petition alleged that Sumner’s last known address was a residence in Chatham County rather than Effingham County, the Superior Court of Effingham County granted Batchelor’s request for ex parte relief, awarding custody of the children to Batchelor.

Sumner thereafter filed a motion to dismiss the petition and asked the court to vacate its ex parte order, which motion the trial court denied after it found that venue was proper in Effingham County based on “the best interests of the children.” Sumner now appeals, arguing in her single enumeration that the trial court erred by finding that venue was proper. We agree.

Decided February 3, 2012.

Karen D. Barr, for appellant.

Hall & Kirkland, Martha C. Hall, for appellee.

“[AJfter a court has determined who is to be the legal custodian of a child, any complaint seeking to obtain a change of legal custody of the child shall be brought as a separate action in the county of residence of the legal custodian of the child.” This language is clear and unequivocal, and based on the face of Batchelor’s petition, the Superior Court of Effingham County lacked jurisdiction to adjudicate the petition. Moreover, Sumner challenged the court’s jurisdiction based on venue in her responsive pleading, and she presented ample evidence of her residence at the hearing on the matter.

Accordingly, the trial court erred by finding that venue was proper in Effingham County and denying Sumner’s motion to dismiss the petition on this basis, and its judgment granting custody to Batchelor is therefore void.

Judgment reversed.

Ellington, C. J., and Miller, J., concur.

       OCGA § 19-9-23 (a).

       See McCall v. McCall, 246 Ga. App. 770, 772 (542 SE2d 168) (2000).

       Compare Houston v. Brown, 212 Ga. App. 834 (443 SE2d 3) (1994).

       See Hatch v. Hatch, 287 Ga. App. 832, 835 (2) (652 SE2d 874) (2007)


author: Barnes, Presiding Judge.

text:
    A11A1664.
    RAINES v. THE STATE.
    (722 SE2d 779)
   Barnes, Presiding Judge.

A jury convicted Katorian Ronte Raines of trafficking in cocaine, and the trial court sentenced him to 30 years to serve in confinement. He appeals, contending that the evidence against him was insufficient and that the trial court erred in denying his Batson motion. For the reasons that follow, we affirm.

“Following a criminal conviction, we construe the evidence in the light most favorable to the jury’s verdict.” (Citation omitted.) Fortune v. State, 304 Ga. App. 294, 295 (696 SE2d 120) (2010). So viewed, the evidence at trial established that the police stopped Meiko Collier on Interstate 75 for following too closely, obtained his consent to search the rental car he was driving, and found bags of a substance ultimately determined to be cocaine. Collier agreed to participate in a sting operation and called Raines to meet him in a motel parking lot. Raines arrived, got into Collier’s car, and showed him a bag of money that Raines said contained $14,500. Raines then got out, retrieved the drugs from the trunk of Collier’s car, and got back in. At that point the police moved in and arrested both men for trafficking in cocaine. Collier had not entered a plea or gone to trial when he testified for the State during Raines’s trial.

1. Raines argues the evidence against him was insufficient to sustain the trafficking conviction because the sale “was technically never completed and [he] never acquired possession of the cocaine,” citing Epps v. State, 251 Ga. App. 645, 647 (555 SE2d 25) (2001). In Epps, this court reversed a cocaine trafficking conviction, where the evidence showed that Epps took a test sample from a large block of cocaine, which the seller then put into the trunk of his car. Id. at 646. After Epps tested the drugs he returned to the car with cash, at which point the police approached and arrested him. Id. We held that Epps never had actual or constructive possession of all the cocaine, a necessary element of the crime of trafficking under OCGA § 16-13-31 (a). Id. at 647.

In this case, however, the State presented sufficient evidence from which the jury could find that Raines possessed the cocaine he retrieved from the trunk of Collier’s car. In Epps, the seller had locked the drugs away in his trunk where the defendant had no access to them; in this case, Raines retrieved the drugs from the trunk of the car and had them in his hands when the police arrested him. This evidence is sufficient to meet the standards set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Kimble v. State, 301 Ga. App. 237, 240 (1) (a) (687 SE2d 242) (2009).

2. Raines also asserts that the State used its peremptory jury strikes in a racially discriminatory manner in violation of Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

The evaluation of a Batson challenge involves three steps: (1) the opponent of the peremptory challenge must make a prima facie showing of discrimination; (2) the burden then shifts to the proponent of the strike to offer a race-neutral explanation for the strike; and (3) the trial court then must decide whether the opponent of the strike has proven discriminatory intent. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. The trial court’s findings as to whether the opponent of the strike has met the burden of persuasion are entitled to great deference and will be affirmed unless clearly erroneous.

(Citations and punctuation omitted.) Rakestrau v. State, 278 Ga. 872, 874 (3) (608 SE2d 216) (2005).

In this case, Raines is African-American, and 15 of the 36 members of the jury pool were African-American. After voir dire, the State struck eight jurors, all of whom were African-American, and Raines struck nine jurors, all of whom were white, leaving a jury of four African-Americans and eight whites, with an alternate who also was white. Raines objected to the jury panel, contending that the State exercised its peremptory strikes in a racially discriminatory manner. The trial court agreed that Raines presented a prima facie case of discrimination, and the burden shifted to the State to explain why its strikes were racially neutral and not based on the potential juror’s race. The State then explained the reasons for striking each juror, and the trial court concluded that the State gave sufficient race-neutral reasons for all of its strikes.

Upon review, we agree with the trial court that the State gave sufficiently race-neutral reasons for its jury strikes. Raines accepted at trial the State’s reason for striking one of the jurors, who had not admitted on voir dire that he had two felony convictions and numerous misdemeanor convictions. The State struck one juror because he expressed concern that he would have a difficult time being an impartial juror. The next juror was struck because she regularly watched CSI on television and the prosecutor had been involved in a case that ended with a mistrial because a juror who was a CSI fan felt that the scientific evidence presented did not measure up to “CSI standards.” The following juror had served on a jury that was unable to reach a verdict, two jurors had known Raines all of their lives, and another juror had gone to school with him. Finally, the last juror struck had a prior felony conviction.

The trial court found that all of these reasons were racially neutral, and while Raines argues summarily that “it is clear that some of the reasons offered by the State were not race neutral,” we disagree. See Rakestrau, 278 Ga. at 875 (3) (b) (concern about difficulty understanding scientific evidence is race-neutral); Hall v. State, 261 Ga. 778, 780 (2) (a) (415 SE2d 158) (1991) (reasonable suspicion about prospective juror’s impartiality may justify the exercise of a peremptory strike); Aldridge v. State, 222 Ga. App. 437, 437-438 (1) (475 SE2d 195) (1996) (prospective juror’s knowledge of the defendant is legitimate explanation for peremptory strike, as is service on a hung jury); Green v. State, 219 Ga. App. 24, 25 (2) (464 SE2d 21) (1995) (prior felony prosecution is legitimate reason for striking a prospective juror). Because the trial court did not err in concluding that defendant failed to carry his burden of persuasion regarding a racially discriminatory intent in making the jury strikes, we affirm the trial court’s ruling on this issue.

Decided February 3, 2012.

Timothy L. Eidson, Rashawn D. Clark, for appellant.

Denise D. Fachini, District Attorney, Henry O. Jones III, Assistant District Attorney, for appellee.

Judgment affirmed.

Adams and Blackwell, JJ., concur.


text:
    A11A1724.
    THE STATE v. HAMMOND.
    (723 SE2d 89)
   Dillard, Judge.

Walter Hammond was indicted for various offenses related to an incident in which he was stopped by a police officer and found to possess crack cocaine. Hammond filed a motion to suppress this evidence and, following a hearing on the motion, the trial court granted same. This appeal by the State follows, in which the State contends that the trial court improperly granted Hammond’s motion. For the reasons set forth infra, we reverse.

Our story begins with Hammond riding his bicycle through downtown Atlanta close to midnight, in an area known for drug activity. A police officer observed Hammond traveling in the wrong direction down a one-way street and riding without a headlight in violation of OCGA § 40-6-296. Accordingly, the officer stopped Hammond to inquire about the headlight and his direction of travel, and to request identification.

When questioned for identification, Hammond responded that he did not have an identification card but provided the officer with his name and date of birth. The officer then asked for Hammond’s age, to which he responded that he was 52; however, according to the date of birth provided, Hammond was actually 53. According to the officer, this discrepancy raised a red flag. Additionally, he observed that Hammond was abnormally nervous and “fiddling” with something in his pocket, and thus, he believed that Hammond was under the influence of drugs. The officer thereafter ran Hammond’s name and date of birth through the system in his patrol car, checking for any outstanding warrants.

Finding no outstanding warrants, but having no picture with which to confirm Hammond’s identity, the officer returned to Hammond and immediately asked whether he was in possession of anything that the officer “needed to know about.” The officer explained that he would not arrest Hammond if he merely had a crack pipe because “everybody out here has a crack pipe.” Hammond responded that he did have a crack pipe and handed it over to the officer. The officer then asked Hammond if he was in possession of crack, and Hammond hesitated before responding in the affirmative.

Upon hearing this, the officer told Hammond that the two of them were “going to talk about this, but I have to detain you right now,” and he attempted to place Hammond in handcuffs. As this transpired, Hammond reached into his pocket and discarded a pill bottle containing what was later shown to be eight pieces of crack cocaine before grabbing for the officer’s gun and struggling. The scuffle between the officer and Hammond escalated and continued until backup arrived, when Hammond was finally subdued and fully handcuffed.

Hammond was thereafter indicted on one count each of obstruction of an officer, removal of a weapon, possession of cocaine, improperly riding a bicycle, improperly equipping a bicycle, and abandonment of a controlled substance. He then filed a motion to suppress “all evidence resulting from the police officers’ search and seizure . . . .” The trial court granted Hammond’s motion, basing its decision on Hammond’s claim that he was “in custody” when questioned as to whether he possessed illegal drugs but that he had not been read his Miranda rights. Accordingly, the trial court determined that “any admissions made should be suppressed” and that evidence obtained as a result of the statements should be suppressed as “fruits of the poisonous tree.” The trial judge more fully explained his decision at the motion-to-suppress hearing, opining that Hammond was subjected to a lawful tier-two Terry stop with regard to the violations related to his bicycle. However, because the arresting officer testified that Hammond was not free to leave after being approached, the trial court held that the officer had “no right to ask him any questions unless he’s advised him of his Miranda warnings . . . .” This appeal by the State follows.

At the outset, we note that “on a motion to suppress, the State has the burden of proving that a search was lawful.” And on appellate review of a trial court’s order concerning a motion to suppress evidence, “while we review de novo the trial court’s application of the law to undisputed facts, we must accept the trial court’s ruling on disputed facts unless it is clearly erroneous.” With these guiding principles in mind, we turn now to the State’s argument.

The State’s sole argument on appeal is that the trial court improperly granted Hammond’s motion to suppress by determining that Hammond was in custody without the benefit of Miranda warnings, rendering inadmissible statements he made and evidence found as a result of those statements. More specifically, the State contends that “the fact that Hammond had become the focus of an investigation during a roadside traffic stop, even to the point where the officer had probable cause for an arrest, did not constitute a formal arrest requiring Miranda warnings before questioning.” We agree.

To begin with, we note that there are three tiers of Terry-type police-citizen encounters, which encompass

(1) communication between police and citizens involving no coercion or detention . . . , (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.

In a first-tier encounter, an officer “may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave.” In a second-tier encounter, even without probable cause, an officer may stop and detain a person briefly “when the officer has a particularized and objective basis for suspecting the person! ] [is] involved in criminal activity.” But “the officer must possess more than a subjective, unparticularized suspicion or hunch,” and his or her “action must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. ’’ Additionally, in a second-tier encounter, “the officer must have some basis from which the court can determine that the detention was neither arbitrary nor harassing.” Finally, as noted supra, a third-tier encounter is an actual or de facto arrest, which must be supported by probable cause.

In the case sub judice, the trial court determined that Hammond was subjected to a lawful tier-two encounter with the officer but that Hammond “had no right to leave” and Miranda warnings were, therefore, required before the officer could question Hammond. We disagree with the latter half of the trial court’s holding and note that “[r]esolving whether a suspect was in custody for Miranda purposes and whether a suspect was legally seized during a Terry stop require somewhat different analyses.”

In a Terry-type investigative detention, “the suspect is detained, but Miranda is not always triggered” because “the safeguards prescribed by Miranda become applicable only after a detainee’s freedom of action is curtailed to a degree associated with formal arrest.” Indeed,

although an ordinary traffic stop curtails the freedom of action of the detained motorist and imposes some pressures on the detainee to answer questions, such pressures do not sufficiently impair the detainee’s exercise of his privilege against self-incrimination so as to require that he be advised of his constitutional rights.

When an officer makes an ordinary traffic stop, he or she may “temporarily detain anyone who tries to leave before the preliminary investigation is completed” and “[s]uch inquiries and detentions do not trigger the requirements of Miranda, unless the questioning is aimed at obtaining information to establish a suspect’s guilt.”

Instead, to determine whether an individual was “in custody” for purposes of Miranda, the test is “whether a reasonable person in the detainee’s position would have thought the detention would not be temporary.” Under this test, a person is in custody for purposes of Miranda only if “a reasonable person in the suspect’s position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest.” And a “reasonable person” is one who is “neither guilty of criminal conduct and thus overly apprehensive nor insensitive to the seriousness of the circumstances.” Additionally, “the subjective opinion of the officer concerning whether the suspect’s detention constituted a custodial arrest is not controlling.”

Here, as stated previously, we agree with the trial court that Hammond was subjected to a tier-two Terry-type investigative detention, but we disagree that Hammond was “in custody” for purposes of Miranda. We will address each analysis in turn.

First, as to Hammond’s detention, the officer observed Hammond traveling in the wrong direction on a one-way street while riding a bicycle without the required headlight, providing probable cause to initiate a stop. After briefly questioning Hammond about the bicycle infractions and inquiring as to his identification, the officer checked to make sure Hammond was not the subject of any outstanding warrants. Immediately thereafter, the officer began to ask Hammond whether he possessed drug paraphernalia, as further detailed supra, because Hammond “was acting very nervous” and “seem[ed] high.” Additionally, the officer stopped Hammond late at night in an area known for high drug activity, and he observed that Hammond acted “above average nervous” and fidgeted with an object in his pocket.

Given the foregoing facts, Hammond was detained for a reasonable time to investigate in conjunction with the valid stop, which included a check of Hammond’s name and date of birth. And the officer testified that, in total, approximately three minutes passed from the point at which he stopped Hammond to the point at which he placed him under arrest. In this respect, we note that “police may lawfully ask questions unrelated to the purpose of a valid traffic stop, so long as the questioning does not unreasonably prolong the detention.” Thus, it is arguable that Hammond’s traffic stop was complete when the officer discovered no outstanding warrants and, then, that the questions related to drug paraphernalia extended or expanded the stop. Nevertheless, when an officer has “an articu-lable suspicion of another crime,” additional questions and detention do not impermissibly exceed the scope of the investigation. And here, the late hour; location of the stop in a known drug area; Hammond’s excessive nervousness, incorrect response when asked his age, and constant fidgeting; and the officer’s belief, based upon his training and experience, that Hammond was high, provided the necessary reasonable, articulable suspicion to continue the investigation.

Having determined that Hammond was lawfully detained, we must next resolve whether Hammond was nevertheless “in custody” for purposes of Miranda warnings which, it is undisputed, were never read to him during the encounter. As explained supra, “the test for determining whether a person is under arrest at a traffic stop is whether a reasonable person in the suspect’s position would have thought his detention would not be temporary.” In applying this test, we must examine all the surrounding circumstances.

And here, during the valid tier-two stop, the officer inquired as to whether Hammond possessed anything the officer “needed to know about.” The officer told Hammond that he would not be arrested if he had a crack pipe because “everybody out here has a crack pipe.” Hammond then admitted to carrying a crack pipe before handing it over to the officer at his request. And when the officer then immediately asked if Hammond possessed crack, Hammond again admitted to having contraband in his possession. Thereafter, the officer began to handcuff Hammond and the struggle between the two ensued, during which Hammond attempted to dispose of the pill bottle containing crack.

Having heard the foregoing testimony, the trial court found that the officer’s questions were improper because, despite finding that Hammond was subject to a lawful tier-two encounter, Hammond did not have the right to leave. Thus, the trial court suppressed Hammond’s statements and the evidence discovered as a result of those statements. However, as noted supra, during a traffic stop, an officer “may conduct a general on-the-scene investigation, which may even require that persons be temporarily detained, without such being classified as custodial interrogation.” And when an officer briefly detains an individual to conduct an investigation at a traffic stop, “a custodial situation does not arise even if an officer believes he has probable cause to arrest a defendant, where the officer takes no overt step to communicate that belief.”

Here, the question regarding whether Hammond was in possession of contraband occurred within a few seconds of the stop, such that “no reasonable person could believe that they were under arrest and that they were not free to leave after the officer had been afforded a reasonable time to finish conducting a traffic investigation.” Additionally, the officer informed Hammond that he would not be arrested if he merely possessed a crack pipe. No reasonable person, having been told that he or she would not be arrested (denoting a future occurrence), could believe that he or she was currently in custody. And although the officer testified that Hammond was not free to leave during the investigation, there is no indication that the officer made “any statement or otherwise act[ed] in such a way that would cause a reasonable person to believe that he was under arrest and not simply temporarily detained for further investigation . . . ,” Thus, Hammond was not “in custody” for purposes of Miranda at the time he admitted to possessing contraband.

Decided February 3, 2012.

Paul L. Howard, Jr., District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellant.

Kish & Lietz, Jessica K. Stern, for appellee.

Accordingly, the trial court erred in finding that although Hammond was appropriately detained pursuant to a tier-two investigation he was, nevertheless, “in custody” for purposes of Miranda and that all evidence should be suppressed. We therefore reverse the trial court’s judgment.

Judgment reversed.

Mikell, P. J., and Boggs, J., concur.

        See OCGA § 16-10-24 (b).

        See OCGA § 16-10-33 (b).

        See OCGA § 16-13-30 (a).

        See OCGA § 40-6-294 ffl.

        See OCGA § 40-6-296 (a).

        See OCGA § 16-13-3.

       We note that “[t]he ‘fruit of the poisonous tree’ doctrine provides that any evidence acquired by the police through exploitation of information obtained by means of unlawful conduct is inadmissible in a criminal prosecution.” Lawson v. State, 299 Ga. App. 865, 868 (1) (684 SE2d 1) (2009); see also Brown v. Illinois, 422 U. S. 590, 603-04 (III) (95 SC 2254, 45 LE2d 416) (1975) (providing test to determine whether evidence must be excluded under doctrine).

        State v. Austin, 310 Ga. App. 814, 816 (714 SE2d 671) (2011); see also OCGA § 17-5-30 (b).

        State v. Mohammed, 304 Ga. App. 230, 230 (695 SE2d 721) (2010).

        Gonzalez v. State, 235 Ga. App. 253, 254 (509 SE2d 144) (1998) (punctuation omitted).

        Lucas v. State, 284 Ga. App. 450, 452 (644 SE2d 302) (2007) (punctuation omitted).

        Black v. State, 281 Ga. App. 40, 43 (1) (635 SE2d 568) (2006) (punctuation omitted).

        Id. (punctuation omitted).

        Id. (punctuation omitted).

        Thomas v. State, 301 Ga. App. 198, 200 (1) (687 SE2d 203) (2009).

        State v. Wintker, 223 Ga. App. 65, 68 (476 SE2d 835) (1996).

        Id.

        Thomas v. State, 294 Ga. App. 108, 110 (1) (668 SE2d 540) (2008) (punctuation omitted); see also Wintker, 223 Ga. App. at 66 (“If the police take a suspect into custody and ask questions without informing the person of his Miranda rights, the responses cannot be introduced into evidence to establish his guilt.”).

        Thomas, 294 Ga. App. at 110 (1) (punctuation omitted).

        Wintker, 223 Ga. App. at 67 (punctuation omitted); see also Lebrun v. State, 255 Ga. 406, 407 (3) (339 SE2d 227) (1986) (“[Rloadside questioning at a routine [traffic] stop does not constitute ... a custodial situation.”); Tibbs v. State, 207 Ga. App. 273, 273 (1) (427 SE2d 603) (1993) (“Police officers at the scene of a traffic stop may conduct a general on-the-scene investigation, which may even require that persons be temporarily detained, without being classified as custodial interrogation.” (punctuation omitted)).

        Thomas, 294 Ga. App. at 110 (1) (punctuation omitted).

        Wintker, 223 Ga. App. at 67.

        Id. (punctuation omitted); see also Brown v. State, 223 Ga. App. 364, 367 (477 SE2d 623) (1996) (“A reasonable person does not mean a person with a guilty conscience who knows as soon as they see the blue light that they will be arrested for matters known to them, but are not as yet known to the police.” (punctuation omitted)).

        Williams v. State, 293 Ga. App. 842, 844 n.2 (668 SE2d 825) (2008).

        See Wesley v. State, 275 Ga. App. 363, 364 (620 SE2d 580) (2005) (holding that officer had probable cause to stop individual after observing traffic violation).

        See Matthews v. State, 294 Ga. App. 836, 838 (2) (670 SE2d 520) (2008) (“A reasonable time includes the time necessary to verify the driver’s license, insurance, registration, and to complete any paperwork connected with the citation or written warning. A reasonable time also includes the time necessary to run a computer check to determine whether there are any outstanding arrest warrants for the driver or the passengers.” (emphasis and punctuation omitted)).

        Id.; see also Salmeron v. State, 280 Ga. 735, 736 (1) (632 SE2d 645) (2006) (“A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.” (punctuation omitted)).

        See Faulkner v. State, 256 Ga. App. 129, 129-30 (567 SE2d 754) (2002) (detainee’s valid traffic stop ended when officer returned license and insurance card but held a signed ticket while interrogating detainee as to “whether [he] had anything in the vehicle that [the officer] should know about”).

        See Henderson v. State, 250 Ga. App. 278, 280 (551 SE2d 400) (2001); see also Faulkner, 256 Ga. App. at 130 (“[0]nce the tasks related to the investigation of the traffic violation and processing of the traffic citation have been accomplished, an officer cannot continue to detain an individual without articulable suspicion.”).

        See Almond v. State, 242 Ga. App. 650, 651 (1) (530 SE2d 750) (2000) (officer properly expanded traffic stop inquiry into whether defendant “had anything in her vehicle that he should know about” when defendant illegally stopped in intersection, provided inconsistent responses, was seen with suspected drug dealer, and was nervous); see also Wesley, 275 Ga. App. at 364 (holding that traffic stop was properly extended to include drug-sniff walk-around after detainee admitted that he might be in possession of marijuana). See generally Evans v. State, 262 Ga. App. 712, 717 (1) (b) (586 SE2d 400) (2003) (“[T]he determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior. All of this conduct. . . suggested that the individual[ ] [was] engaged in criminal activity.” (punctuation omitted)).

        State v. Pierce, 266 Ga. App. 233, 235 (1) (596 SE2d 725) (2004) (punctuation omitted).

        Id.

        Tibbs, 207 Ga. App. at 273 (1) (punctuation omitted).

        Pierce, 266 Ga. App. at 235 (1).

        Brown, 223 Ga. App. at 367.

        Loden v. State, 271 Ga. App. 632, 633 (610 SE2d 593) (2005). Compare Wintker, 223 Ga. App. at 68-69 (detainee was “in custody” for purposes of Miranda after observing arrest of car’s driver; being placed in locked patrol car while other passengers remained outside; observing drug sniff by police dog; and watching as police thoroughly searched her parents’ car after she refused consent to search).

        See, e.g., Pierce, 266 Ga. App. at 236 (1) (reversing trial court’s grant of a motion to suppress when a reasonable person in defendant’s position would not have believed that he or she was in custody).


author: Miller, Judge.

text:
    A11A2141.
    NEWTON v. THE STATE.
    (723 SE2d 95)
   Miller, Judge.

Following a jury trial, Donald E Newton was convicted of criminal attempt to manufacture methamphetamine (OCGA §§ 16-13-30 (b), 16-4-1). Newton filed a motion for new trial, which the trial court denied. Newton appeals, contending that the trial court erred in admitting his prior drug conviction as similar transaction evidence, and in denying his motion to suppress evidence seized as a result of a search warrant issued without sufficient probable cause. Discerning no error, we affirm.

Viewed in the light most favorable to the jury’s verdict, see Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979), the evidence shows that two officers of the Carroll County Sheriff s Office attempted to execute an arrest warrant on a suspect thought to be residing at Newton’s rental home. Although the suspect was not there, Newton and his co-defendant were present at the residence and gave the officers permission to search it. One of the officers, who had been trained in methamphetamine detection, smelled a strong odor of ether, which he recognized as a primary ingredient used to manufacture methamphetamine. The officers contacted a Carroll County investigator and secured the scene until she arrived.

Based on the officer’s report of an ether odor, as well as her own knowledge that Newton’s co-defendant and the absent owner of the residence were associated with prior methamphetamine manufacturing activities, the investigator prepared and obtained a search warrant for the residence and surrounding property. Upon execution of the search warrant, the officers discovered a methamphetamine laboratory in an outbuilding on the property. Inside the residence, officers found surveillance equipment that was used to observe the front door area of the residence; glass smoking devices containing white substance residue; and corner baggies. They also located pill binders and numerous containers containing substances used to manufacture methamphetamine. Newton and his co-defendant were arrested and charged with criminal attempt to manufacture methamphetamine.

1. Newton argues that the trial court erred by allowing the State to introduce his prior drug conviction as similar transaction evidence. We disagree. “Absent an abuse of discretion, we will not disturb a trial court’s determination that similar transaction evidence is admissible.” (Citation omitted.) Porter v. State, 264 Ga. App. 526, 531 (4) (591 SE2d 436) (2003).

Before similar transaction evidence can be introduced, the State “must make three affirmative showings as to each independent offense or act it seeks to introduce.” Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). Specifically, the State must show

that it is seeking to introduce the evidence for a permissible purpose; there is sufficient evidence that the accused committed the independent offense or act; and there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.

(Punctuation omitted.) Mattox v. State, 287 Ga. App. 280, 282 (1) (651 SE2d 192) (2007). “Implicit also are the concepts that the evidence must be relevant to an issue in the case and that its probative value outweighs its prejudicial effect.” (Citations and punctuation omitted.) Morrison v. State, 300 Ga. App. 405, 407 (685 SE2d 413) (2009).

Here, the State filed a notice of intent to present similar transaction evidence involving Newton’s 2003 guilty plea and conviction to a number of drug charges, including the offense of criminal attempt to manufacture methamphetamine. During the similar transaction hearing, the State explained that Newton’s prior drug conviction was based upon the execution of a search warrant of his residence, which revealed a number of items associated with the manufacture of methamphetamine. The State informed the trial court that its purpose in proffering such evidence was to demonstrate Newton’s mode of operation and his bent of mind. The State contended that a certified copy of Newton’s guilty plea proved with sufficient certainty that it was Newton who committed the prior drug offenses. The State further asserted that there was an element of similarity between Newton’s prior drug conviction and the offense charged insofar as they both involved the same crime of criminal attempt to manufacture methamphetamine, and in both instances, components of methamphetamine laboratories were found at the respective residences. The trial court ruled that Newton’s prior drug conviction was admissible for the purpose of showing Newton’s bent of mind and his course of conduct.

Newton argues on appeal that the trial court abused its discretion in admitting evidence of his prior guilty plea and conviction because (a) introduction of similar transaction evidence for the purpose of showing “bent of mind” was improper; (b) the probative value of the similar transaction evidence did not outweigh its prejudicial effect; and (c) the similar transaction evidence was not necessary for the State to prove its case.

(a) Relying solely upon the new Georgia Rules of Evidence, Newton first asserts “that ‘bent of mind’ evidence is wholly prejudicial to the defendant, rarely is relevant to the facts of an underlying case, and is basically admitted for the purpose of showing that the defendant is a criminal.” As Newton himself acknowledges in his appellate brief, however, the new Georgia Rules of Evidence do not go into effect until January 1, 2013. See Ga. L. 2011, p. 100, § 1. Presently, and at the time of the trial court’s finding in this case, “[cjourse of conduct and bent of mind are appropriate purposes for which similar transaction evidence can be introduced.” (Footnote omitted.) Henderson v. State, 303 Ga. App. 527, 529 (1) (693 SE2d 896) (2010); see also Wade v. State, 295 Ga. App. 45, 48 (670 SE2d 864) (2008) (“[W]e are not authorized to depart from the precedent of the Supreme Court of Georgia authorizing the bent of mind rationale for admitting similar transaction evidence here.”) (citations and footnotes omitted). Thus, based on Newton’s position that he was not involved with the methamphetamine laboratory in this case, as well as the similarity of his prior drug crime with the offense at issue, we discern no abuse of the trial court’s discretion in admitting the evidence of Newton’s prior attempts to manufacture methamphetamine for the purpose of showing his bent of mind and course of conduct in this case. Cf. Robertson v. State, 306 Ga. App. 721, 724-725 (2) (703 SE2d 343) (2010).

(b) The trial court was also authorized to find that the probative value of the similar transaction evidence outweighed its prejudicial effect. See Morrison, supra, 300 Ga. App. at 408. As stated above, Newton’s prior drug conviction was relevant and admissible to prove his bent of mind and course of conduct. Moreover, “the trial court provided jury instructions that limited consideration of the similar transaction evidence to the appropriate purposes and provided guidance so as to diminish its prejudicial impact.” Id. “Given its relevance and the court’s appropriate limiting instruction contemporaneous with its admission and in its jury charge, the probative value of the evidence . . . outweighed its prejudice to [Newton].” (Citation and footnote omitted.) Bilow v. State, 262 Ga. App. 850, 856 (2) (586 SE2d 675) (2003).

(c) Newton also contends that the trial court erred insofar as it admitted similar transaction evidence that was not “needed by the State,” asserting that the State’s case against him “was very solid and the State did not need this similar transaction evidence in order to present sufficient evidence to support a conviction.” We disagree. In determining whether the State’s need for the similar transaction evidence outweighs its prejudicial effect, one of the questions a trial court should consider is, “[D]oes the State need this evidence to prove the issue, or can the fact be proved otherwise . . . [by] less-inflammatory evidence[?]” (Punctuation omitted.) Smith v. State, 232 Ga. App. 290, 292-293 (1) (501 SE2d 523) (1998). As described above, Newton disclaimed any involvement with or knowledge of the methamphetamine laboratory contained in the outbuilding. Accordingly, the State needed the evidence of Newton’s prior drug conviction to show his bent of mind and course of conduct with respect to the methamphetamine offense at issue. Moreover, Newton’s concession that the State presented sufficient evidence to support his conviction, even without the jury’s consideration of Newton’s prior drug conviction, renders it “highly probable that its admission did not contribute to the judgment.” (Citation omitted.) Porter, supra, 264 Ga. App. at 531-532 (4). Thus, no reversible error has been shown. See id. (applying the harmless error test to the alleged erroneous admission of similar transaction evidence).

2. Newton argues that the trial court erred by denying his motion to suppress evidence seized during the search of the residence, because there was no probable cause to issue the search warrant. We disagree.

On appeal, we determine if the magistrate had a “substantial basis” for concluding that probable cause existed to issue the search warrant, applying the well-established principles that the trial court’s findings as to disputed facts will be upheld unless clearly erroneous and the trial court’s application of law to undisputed facts is subject to de novo review and keeping in mind that a magistrate’s decision to issue a search warrant based on a finding of probable cause is entitled to substantial deference by a reviewing court.

(Punctuation and footnote omitted.) Arnica v. State, 307 Ga. App. 276, 278 (1) (704 SE2d 831) (2010).

Here, the trial court found that sufficient probable cause existed to authorize the issuance and execution of a search warrant encompassing the entire premises. The trial court’s finding was based upon oral testimony and the search warrant itself, including the affidavit submitted to the magistrate in support of the warrant that showed the following circumstances. One of the responding officers, who was trained by the DEA in methamphetamine detection and discovery, smelled a strong odor of ether on the premises. The responding officers contacted an investigator, who knew the individuals at the residence to be previously associated with the manufacture of methamphetamine. Notably, during a separate investigation one month prior, Newton’s co-defendant had admitted to the investigator that he was selling methamphetamine to support his girlfriend’s addiction. Approximately two months earlier, the investigator had responded to the same residence to investigate a report of a methamphetamine laboratory being operated on the premises.

On appeal, Newton argues that the investigator’s knowledge of previous methamphetamine activities was too remote in time to establish probable cause, and that the smell of ether alone was not sufficient to establish probable cause. First, Newton’s staleness argument is without merit. “[T]he proper procedure to determine whether information is stale is to view the totality of the circumstances for indications of the existence of reasonable probability that the conditions referred to in the sworn testimony would continue to exist at the time of the issuance of the search warrant.” (Punctuation and footnote omitted.) Shivers v. State, 258 Ga. App. 253, 257 (573 SE2d 494) (2002). Here, the investigator’s knowledge coincided with the officer’s detection of a strong odor of ether at the premises, and the search warrant was both issued and executed on the same day that the odor was detected. Compare id. (concluding that there was no evidence indicating that consumable drug — marijuana — would be found at suspect’s residence two days after the odor of marijuana was detected on suspect’s person, and not his residence). Given these circumstances, we cannot say that the investigator’s knowledge was so remote that it made it unlikely that methamphetamine manufacturing activities would be found at the premises at the time the warrant was issued.

Second, Newton is mistaken in focusing solely on the odor of ether as providing the basis for a finding of probable cause in this case. See Dawson v. State, 238 Ga. App. 263, 265 (1) (518 SE2d 477) (1999) (“Probable cause need not be defined in relation to any one particular element, but may exist because of the totality of circumstances.”) (citation and punctuation omitted). In reviewing the trial court’s denial of Newton’s motion to suppress, we consider whether the totality of the circumstances, and not merely the smell of ether, supported a finding of probable cause. See id. Here, in addition to the strong odor of ether, the DEA-trained officer knew that the odor was indicative of a methamphetamine laboratory operation, there was a prior report that a methamphetamine laboratory was being operated on the premises, and Newton’s co-defendant had previously admitted to selling methamphetamine. Thus, pretermitting the question of whether the odor of ether by itself supplied probable cause for the search, we conclude that the totality of the circumstances in this case presented probable cause supporting the magistrate’s issuance of a search warrant of the premises. See id. (“[T]he existence of probable cause is determined by whether, given all the circumstances, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.”) (citations and punctuation omitted); O’Keefe v. State, 189 Ga. App. 519, 526 (3) (376 SE2d 406) (1988) (pretermitting the question of whether the odor of burning marijuana by itself could have supplied sufficient probable cause, and instead considering it as a part of the totality of circumstances that were sufficient to establish probable cause for the issuance of a search warrant). Therefore, the trial court did not err in denying Newton’s motion to suppress the evidence seized from the residence.

Decided February 3, 2012.

Drummond & Swindle, Jason W. Swindle, for appellant.

Peter J. Skandalakis, District Attorney, Jeffery W. Hunt, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       Newton’s co-defendant is not a party to this appeal.

       See Ga. L. 2011, p. 99, § 2 (to be codified at OCGA § 24-4-404).

       The State asserts that Newton lacked standing to object to the search of the outbuilding in which the methamphetamine laboratory was found. Indeed, as the State points out, Newton disclaimed any ownership or possessory interest in the outbuilding. See Henderson v. State, 211 Ga. App. 102, 103 (2) (438 SE2d 181) (1993) (“When, as in the instant case, the accused disavows ownership of or other legitimate possessory interest in the item searched, he has no legitimate expectation of privacy in that item, and thus a search violates no right.”) (citation and punctuation omitted). Significantly, Newton conceded at the motion to suppress hearing that he had no reasonable expectation of privacy with respect to the outbuilding and was seeking only to suppress evidence seized from the residence. Thus, we address Newton’s claim of error only with respect to the search of the residence.