text:
    A15A2317.
    ALLEN v. THE STATE.
    (783 SE2d 680)
   MILLER, Presiding Judge.

The State charged Rueben Allen with committing armed robbery, aggravated assault and other crimes during a home invasion. One of Allen’s co-defendants, James Marino, entered a guilty plea to the charges. At Allen’s jury trial, the trial court granted Marino immunity from further prosecution in exchange for his testimony. The jury found Allen guilty on several of the charges. Allen appeals from the denial of his motion for new trial, challenging the trial court’s grant of immunity to Marino and raising an ineffective assistance of counsel claim. For the reasons explained below, we find that Allen has no standing to challenge the grant of immunity to Marino. We also conclude that Allen cannot show prejudice to sustain his ineffective assistance claim. Accordingly, we affirm.

1. In his first enumeration of error, Allen contends that the trial court erred by granting Marino immunity in exchange for his testimony at Allen’s trial. Allen argues that, in granting immunity to Marino, the trial court failed to comply with the procedural requirements of former OCGA § 24-9-28 and that this failure violated Marino’s constitutional rights.

This Court, however, has previously considered and rejected the same arguments in Gilbert v. State, 306 Ga. App. 776, 778-779 (703 SE2d 374) (2010). In that case, this Court ruled that the defendant had no right to contest the grant of use immunity to a co-defendant who then testified against him at trial. Id. In so ruling, this Court relied upon an opinion by the Supreme Court of Georgia, which held that,

[wjhile [the defendant] might have preferred that a key witness not be ordered to testify truthfully in his trial, there is nothing in Georgia law that would have permitted him to object to the State’s request for the [immunity] order or that would suggest that [the defendant’s] rights were the subject matter under consideration

during the hearing on the State’s request. (Citation omitted.) King v. State, 273 Ga. 258, 264-265 (15) (539 SE2d 783) (2000).

Given this ruling, we conclude that Allen has no standing to contest the grant of use immunity to Marino. Consequently, we affirm his convictions.

2. To the extent Allen contends that his defense counsel provided ineffective assistance at trial, he has failed to show prejudice. Allen raised an ineffective assistance of counsel claim in his motion for a new trial and thus may raise it on direct appeal. See, e.g., Walden v. State, 291 Ga. 260, 262 (2) (728 SE2d 186) (2012) (explaining that an ineffective assistance claim must be raised in a post-conviction motion in order to be raised on direct appeal). Although Allen offered little case law to support his claim, he proffered the bare minimum to preserve his argument. Cf. McBee v. State, 296 Ga. App. 42, 46 (2) (b), n. 19 (673 SE2d 569) (2009) (noting that the failure to provide any cogent argument or citation of authority would constitute waiver). Therefore we will address its merits.

In order to succeed on his claim of ineffective assistance, [Allen] 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. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong.

Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012).

Here, we conclude that Allen cannot show prejudice because the evidence strongly suggests his culpability. Marino testified, over counsel’s repeated objections, that Allen was involved in the robbery. There was additional evidence of Allen’s DNA on a ski mask found near the scene. Allen then testified in his own defense, denying his involvement and that his DNA could have been on the ski mask. The jury was free, as it ultimately did, to disbelieve Allen’s testimony and consider it as evidence of guilt. Daughtie v. State, 297 Ga. 261, 263-264 (2) (773 SE2d 263) (2015) (explaining that “a statement by a defendant, if disbelieved by the jury may be considered as substantive evidence of the defendant’s guilt ... at least where some corroborative evidence exists for the charged offense”) (citation and emphasis omitted). In light of the significant evidence against Allen, he failed to show that there was a reasonable probability that the trial result would have been different if not for counsel’s allegedly deficient performance. Thus, on this record, we cannot conclude that counsel’s performance prejudiced Allen.

Judgment affirmed.

Andrews, P. J., concurs. Peterson, J., concurs fully as to Division 1 and in judgment only as to Division 2.

Decided March 4, 2016.

Steven A. Miller, for appellant.

PaulL. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.

       Specifically, Allen was convicted on two counts of armed robbery (OCGA § 16-8-41), four counts of aggravated assault (OCGA § 16-5-21), one count of battery (OCGA § 16-5-23.1), and four counts of false imprisonment (OCGA § 16-5-41).

       Former OCGA § 24-9-28 (a) provided as follows:
      Whenever in the judgment of the Attorney General or any district attorney the testimony of any person or the production of evidence of any kind by any person in any criminal proceeding before a court or grand jury is necessary to the public interest, the Attorney General or the district attorney may request the superior court in writing to order that person to testify or produce the evidence Any order entered under this Code section shall be entered of record in the minutes of the court so as to afford a permanent record thereof; and any testimony given by a person pursuant to such order shall be transcribed and filed for permanent record in the office of the clerk of the court.


source: Caselaw Access Project

author: Peterson, Judge.

license: Public Domain

text:
    A15A1922.
    CRIDER v. THE STATE.
    (783 SE2d 682)
   Peterson, Judge.

Troy Crider appeals from a jury verdict finding him guilty of trafficking in methamphetamine and possession of drug-related objects. He argues that (1) the trial court erred in denying his motion to suppress; (2) the evidence is insufficient to sustain his trafficking conviction; (3) the trial court erred in not giving certain jury instructions; and (4) the trial court erred in denying his motion for a new trial based on alleged ineffective assistance of counsel. The trial court did not err in denying Crider’s motion to suppress evidence found during a traffic stop of a vehicle in which Crider was a passenger, as the officer did not unreasonably prolong the detention before obtaining the driver’s consent to search. The trial court also did not err in denying the motion to suppress evidence obtained during a search of a motel room, as the court’s factual finding that the search was conducted pursuant to a warrant is not clearly erroneous. The evidence is sufficient to sustain Crider’s convictions, as the testimony of Crider’s accomplice was corroborated independently. The trial court did not err in failing to instruct the jury on presumption of possession and equal access, as the State did not rely on a presumption of possession by Crider. Finally, the trial court did not err in rejecting Crider’s claims that his trial counsel’s performance amounted to ineffective assistance of counsel, because the various actions or omissions by counsel of which Crider complains either did not fall below a reasonable standard of representation or did not prejudice Crider’s defense. Therefore, we affirm Crider’s convictions.

Crider was a passenger in a car that was stopped by police. After some investigation of the sobriety of the driver, Buffie Douglas, police obtained her consent to search the vehicle. Finding methamphetamine under the seat where Crider had been sitting, police arrested both Crider and Douglas. Acting on information provided by Douglas, police searched a motel room, to which Crider had a key card on his person, finding additional methamphetamine and drug-related paraphernalia. Based on the two seizures and other evidence, including testimony for the prosecution by Douglas, Crider was prosecuted and convicted for trafficking in methamphetamine and possession of drug-related objects. We will address his appellate arguments as to the legality of the searches and seizures before considering his sufficiency argument, noting that different standards of review govern each inquiry.

1. Crider challenges the trial court’s denial of his motion to suppress evidence seized (1) during a stop of a vehicle in which he was a passenger and (2) in a subsequent seizure during a search of a motel room. “On appeal from a denial of a motion to suppress, this court must construe the evidence most favorably to uphold the ruling of the trial court. Furthermore, the trial court’s application of law to undisputed facts is subject to de novo review.” Thomas v. State, 300 Ga. App. 120, 120 (684 SE2d 290) (2009) (footnotes omitted). We may examine not only the evidence in the record of the hearing on the suppression motion, but also the evidence from the trial. Owens v. State, 334 Ga. App. 203, 205 (1) (778 SE2d 830) (2015) (citation and punctuation omitted). However, “when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. . . . [T]he trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous.” Perez v. State, 249 Ga. App. 399, 399-400 (547 SE2d 699) (2001) (citation omitted). The reviewing court may also consider facts indisputably discernible from a videotape, as is available with respect to the traffic stop in this case. State v. Allen, 298 Ga. 1, 2 (1) (a) (779 SE2d 248) (2015).

(a) So viewed, the record shows that an officer observed the car driven by Douglas make a “rough movement” from the right lane into the left lane then swerve back into the right lane. The officer initiated a traffic stop, approached Douglas, and asked for her driver’s license. The officer asked Douglas to step out of the car, questioned her about her travels that evening and whether she had consumed any alcohol or drugs, and checked the status of her driver’s license and registration. The officer also asked Crider for his identification and questioned him about his travels. After conducting some sobriety tests on Douglas, the officer told her that her eyes were red but he did not smell any alcohol. The officer asked Douglas whether she had consumed any drugs or was on any prescription medications, or had anything illegal in the vehicle. Immediately thereafter, about eight minutes after the traffic stop began, the officer requested and was granted Douglas’ permission to search the vehicle. Before searching the car, the officer spoke to Crider again, asked him to exit the vehicle, and patted him down. Finding what was later determined to be methamphetamine under the front passenger seat where Crider had been sitting, the officer told Douglas and Crider that they were under arrest, about 10 minutes after the stop began. In an oral ruling, the trial court denied the motion to suppress evidence gathered from the traffic stop.

Valid consent to search eliminates the need for either probable cause or a search warrant. Brooks v. State, 285 Ga. 424, 425 (677 SE2d 68) (2009). However, consent cannot validate a search if the consent is the product of a wrongful detention. State v. Lanes, 287 Ga. App. 311, 313 (651 SE2d456) (2007). Apassenger may indirectly challenge the search of a vehicle on the basis that the search is a fruit of his own illegal detention. State v. Menezes, 286 Ga. App. 280, 281-82 (1) (648 SE2d 741) (2007). Although there is no dispute in this case that the initial traffic stop was valid, “a seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution.” Duncan v. State, 331 Ga. App. 254, 255-56 (770 SE2d 329) (2015) (quoting Illinois v. Caballes, 543 U.S. 405 (125 S. Ct. 834, 160 LE2d 842) (2005)).

A stop that extends beyond the conclusion of the investigation that warranted the detention in the first place is unreasonable, unless “good cause has appeared in the meantime to justify a continuation of the detention to pursue a different investigation.” Rodriguez v. State, 295 Ga. 362, 369 (2) (b) (761 SE2d 19) (2014). In denying the motion to suppress, the trial court found that the officer did not unreasonably lengthen the stop as he continued to investigate possible impairment of Douglas, the court citing Douglas’ driving behavior and her red eyes as reasons for continuing the investigation. Crider argues that the search of Douglas’ vehicle was conducted after the detention was illegally prolonged beyond the conclusion of the investigation that warranted the detention. He does not argue that the officer altogether lacked reasonable suspicion to investigate Douglas for DUI. Instead, Crider argues that, by the time the officer asked Douglas for permission to search her vehicle, the officer already had concluded that Douglas was not intoxicated to the point that she was less safe to drive.

That assertion appears to be based on a police report in which, before stating that he asked for Crider’s identification or sought Douglas’ consent to search the vehicle, the officer said that he “checked [Douglas’] sobriety’ and “determined that she was not under the influence of any intoxicating substance.” But the police report does not recount events in chronological order. The officer testified, and the video recording confirms, that he asked for Crider’s ID before performing field sobriety tests on Douglas. The officer testified that although the constricted pupils and redness in the eyes that he had observed in Douglas are indicative of someone being under the influence of a stimulant, his statement in the report was intended to convey that she did not appear to be intoxicated such that she could be charged with DUI. The trial court found that the officer continued his investigation of Douglas’ possible impairment “as late as two minutes or so before the drugs were found,” and the video shows that consent was requested and obtained about 90 seconds before the drugs were found.

The trial court’s finding that the officer was still investigating was not clearly erroneous. Just before seeking Douglas’ consent to search, the officer commented on her red eyes and asked her whether she had taken any drugs or used prescription medication, indicating he still had not resolved the question of whether she was intoxicated. As soon as Douglas responded that she had not taken any medication or drugs, the officer asked for consent to search. Thus, even if Douglas’ responses to the officer’s questions about drugs marked the end of his investigation into her possible impairment, the officer’s contemporaneous request for her consent to search was permissible because it did not unreasonably prolong the detention. See Hayes v. State, 292 Ga. App. 724, 731 (2) (665 SE2d 422) (2008) (“virtually contemporaneous request” to search made 30 seconds after defendant issued warning ticket did not unreasonably prolong detention). Accordingly, Douglas’ consent was valid, and the trial court did not err in denying the motion to suppress evidence found in the search of the vehicle.

(b) Crider also challenges the seizures made by police at a motel room, arguing that a search warrant was not obtained until after police searched the room. An overnight guest in a hotel room has a constitutionally-protected reasonable expectation of privacy in the room, and thus the Fourth Amendment provides the guest the same protection as he would have for his private home. Snider v. State, 292 Ga. App. 180, 182 (663 SE2d 805) (2008). Police were led to the motel room by Douglas, who told them that, when she and Crider visited the motel room before setting out the night of the traffic stop, he had sold her the small amount of methamphetamine that police later found in her purse. She could not recall the room number, but rode with police to the motel to point out the room. Police obtained a search warrant for the room. There police found additional methamphetamine, smoking devices, and other items. On its face, the warrant indicates that it was issued at 4:31 a.m. on the morning after the traffic stop. However, the return on the warrant says it was executed at 4:00 a.m. that same day, and a police property record appears to indicate that the contraband recovered at the motel was obtained by 4:30 a.m.

Denying the motion to suppress, the trial court rejected Crider’s attempt to argue that the warrant had not been obtained until after the motel room was searched. The trial court found that someone — the magistrate judge who signed the warrant, a police officer, or both — made a mistake in recording times, saying, “I don’t know who made the mistake about the time and I don’t really care.” At trial, Douglas testified on cross-examination that when she went to the motel with the officers so that she could point out Crider’s room for them, police entered the room. However, she also testified that she did not actually see them enter the room. Based on Douglas’ testimony, Crider renewed his motion to suppress on the basis that she had testified that police had entered the motel room before getting a search warrant. The trial court rejected that argument, saying that although Douglas had been “confused” at various points in her testimony, she never testified that the officers entered the motel room prior to obtaining the search warrant.

The trial court’s factual finding that the motel room was searched pursuant to a warrant is supported by evidence in the record. The officer who stopped Douglas and Crider testified that the officers did not enter the motel room when they went there with Douglas, but only went in later after another officer obtained a search warrant. That other officer was not asked directly during the suppression hearing whether police obtained a warrant before entering the motel room, but he testified at trial that he did not enter the motel room when he went there with Douglas but subsequently obtained a search warrant. Although Douglas offered testimony that contradicted the police officers’ testimony, her testimony was inconsistent, and she stated that she did not actually see the officers go into the room. It was for the trial court to resolve conflicts in the evidence. See Perez, 249 Ga. App. at 399-400. The trial court was authorized to accept the officers’ testimony that they did not go into the motel room without a warrant. Accordingly, the trial court did not err in denying the motion to suppress evidence seized from the motel room.

2. Crider argues that the evidence was insufficient to support his trafficking conviction, specifically arguing that there was insufficient evidence that he possessed the drugs found under the front passenger seat of the vehicle Douglas had been driving. When appellate courts review the sufficiency of the evidence, they do not “re-weigh the evidence or resolve conflicts in witness testimony” but instead defer “to the jury’s assessment of the weight and credibility of the evidence.” Greeson v. State, 287 Ga. 764, 765 (700 SE2d 344) (2010) (citation omitted). We determine whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (99 S. Ct. 2781, 61 LE2d 560) (1979) (citation omitted; emphasis in original).

Douglas testified that, prior to their encounter with police, she and Crider visited a motel room where she purchased methamphetamine from him. Douglas saw Crider had additional methamphetamine, which she believed he left behind when they went out. As police were pulling them over, Crider attempted to place some additional drugs in her purse, but she refused. Douglas testified that she did not know what Crider did with those drugs but she had not put any methamphetamine under the passenger seat of her car.

At the time of the offense, OCGA § 16-13-31(e) provided that anyone who knowingly possessed 28 grams or more of methamphetamine committed the offense of trafficking. The methamphetamine found under the front passenger seat in Douglas’ car weighed 7.36 grams. At the motel room, unlocked with a key card found on Crider, police found 23.51 grams of methamphetamine, along with a toy gun, multiple cell phones, glass pipes and a scale. As neither the amount of methamphetamine found in Douglas’ vehicle nor the amount found in Crider’s motel room by itself met the 28 gram threshold, Crider’s trafficking required evidence showing that he possessed both the drugs found under his seat in the car and those found in the motel room. On appeal, he argues that because there was insufficient corroboration of Douglas’ testimony to the effect that the drugs found underneath the passenger seat of her car were Crider’s, there is insufficient evidence that he possessed those drugs.

Aperson has constructive possession of a thing if he or she “knowingly has both the power and intention at a given time to exercise dominion or control over” it. Smith v. State, 331 Ga. App. 296, 297-98 (1) (771 SE2d 8) (2015) (citation and punctuation omitted). As long as there is “slight evidence of access, power, and intention to exercise control or dominion over the contraband,” the question of whether the defendant constructively possessed contraband is one for the jury. Id. at 298 (1) n.6 (punctuation omitted). “A finding of constructive possession of contraband cannot rest upon mere spatial proximity to the contraband, especially where ... the contraband is hidden.” Mitchell v. State, 268 Ga. 592, 593 (492 SE2d 204) (1997). A felony conviction cannot be based solely on the testimony of an accomplice, but only “slight evidence from an extraneous source” is needed to corroborate the accomplice’s testimony. Grimes v. State, 296 Ga. 337, 340 (1) (766 SE2d 72) (2014) (citing former OCGA § 24-4-8, found in the new Evidence Code at OCGA § 24-14-8). “The sufficiency of any corroborating evidence is for the trier of fact to decide.” Matthews v. State, 284 Ga. 819, 820 (1) (672 SE2d 633) (2009) (citation omitted).

Here, Crider’s trafficking conviction is not based on his mere spatial proximity to the contraband, but on Douglas’ testimony that she had not put any methamphetamine under her passenger seat, that Crider had tried unsuccessfully to hide the drugs in her purse, and that Crider had sold her drugs from the motel room and had additional drugs there. That testimony was corroborated by more than slight evidence. Crider had more than $700 in cash on him, consistent with drug trafficking behavior. See Hamilton v. State, 293 Ga. App. 297, 299 (1) (a) (666 SE2d 630) (2008) ($494 found on defendant’s person evidence of possession with intent to distribute drugs). He also had on his person a key to a motel room containing drugs, a scale, and multiple cell phones, which is consistent with drug trafficking. Thus, Douglas’ testimony that drugs found under Crider’s passenger seat belonged to him was sufficiently corroborated. The evidence authorized the jury to find Crider guilty of possession of methamphetamine with intent to distribute.

3. Crider argues that his trial counsel was ineffective in his cross-examination of Douglas in two respects: (1) he unnecessarily and imprudently introduced evidence of Crider’s prior bad acts; and (2) he failed to cross-examine Douglas adequately regarding the range of punishment that she potentially faced in the case.

In order to prevail on an ineffective assistance of counsel claim, Crider “must show that trial counsel’s performance fell below a reasonable standard of conduct and that there existed a reasonable probability that the outcome of the case would have been different had it not been for counsel’s deficient performance.” Scott v. State, 290 Ga. 883, 889 (7) (725 SE2d 305) (2012) (citing Strickland v. Washington, 466 U.S. 668 (104 S. Ct. 2052, 80 LE2d 674) (1984)). In reviewing a claim of ineffective assistance, the appellate courts give deference to the trial court’s factual findings and credibility determinations unless clearly erroneous, but review a trial court’s legal conclusions de novo. Grant v. State, 295 Ga. 126, 130 (5) (757 SE2d 831) (2014).

(a) Crider’s first claim of ineffectiveness stems from his trial counsel’s introduction of a statement that Douglas gave to police about Crider. During his cross-examination of Douglas, trial counsel apparently attempted to show that Douglas’ statements to police changed over time. At one point, trial counsel elicited Douglas’ admission that a written statement that she provided at 1:09 a.m. the night of the traffic stop did not mention drug transactions beyond saying that she had purchased from Crider $30 worth of methamphetamine found in her purse. Later, trial counsel successfully moved for the admission of a second written statement Douglas had provided to police, at 3:00 a.m. the same day.

On redirect examination, the State asked Douglas to read from several portions of her 3:00 a.m. statement. In the process, Douglas told the jury that she knew Crider was selling methamphetamine because she would take him to pick it up, and that Crider “never stopped” selling. On further cross-examination, Crider’s trial counsel elicited Douglas’ agreement that in her statement at the scene she said she did not “know anything about it,” at 1:09 a.m. she said she had some knowledge but attempted to diminish her responsibility, and at 3:00 a.m. she “unloaded] on Mr. Crider,” making “all these other accusations against him.”

The trial court denied the motion for new trial on the basis that trial counsel’s introduction of prior drug transactions by Crider was part of a strategy to show that Douglas changed her version of events, limiting her own culpability while incriminating Crider further as time went on. We conclude that, regardless of whether trial counsel’s motion to admit the 3:00 a.m. statement constituted deficient performance, any such deficiency did not prejudice Crider’s defense. See Gordon v. State, 273 Ga. 373, 377 (4) (541 SE2d 376) (2001) (“Strickland does not require that we inquire first into the alleged deficiency in counsel’s performance, or even address it at all, if we find that no prejudice has been shown[.]”) (citation and punctuation omitted).

Crider argues on appeal that the introduction of the 3:00 a.m. statement was prejudicial because the only evidence to support the conclusion that he possessed the requisite amount of methamphetamine was the testimony of his accomplice and his presence in the vehicle that she was driving, and the 3:00 a.m. statement opened the door for the State to ask Douglas about Crider’s prior drug dealing. However, as discussed above, Douglas’ testimony was corroborated by additional evidence. Moreover, to the extent that the case turned on a challenge to Douglas’ credibility, there is no reasonable probability that the introduction of her statement would have made a difference in the outcome of the case. The statement essentially accused Crider of being a drug dealer. If the jury found Douglas credible, the statement would have been cumulative of her other testimony to that effect. If the jury did not find Douglas credible, the statement would not have mattered then, either, because in that case there is no reasonable probability that the jury would have credited Douglas’ statements to the police implicating Crider. Therefore, we cannot say that “there existed a reasonable probability that the outcome of the case would have been different” had the 3:00 a.m. statement implicating Crider as a drug dealer not been introduced. Scott, 290 Ga. at 889 (7).

(b) Crider next claims that his trial counsel was ineffective for failing to cross-examine Douglas adequately regarding the range of punishment that she potentially faced in the case. During her direct examination by the State, Douglas testified that she had been given first offender treatment. On cross-examination, Douglas acknowledged that she initially had been charged with possession with intent to distribute methamphetamine, but reached a plea deal with the State allowing her to plead guilty to a lesser offense in exchange for her testimony against Crider, resulting in a sentence of five years probation. Douglas testified that she could be resentenced to the maximum sentence for possession with intent to distribute methamphetamine if she did not testify, in defense counsel’s words, “like they want you to,” but he did not ask her to specify that maximum sentence. On redirect examination, Douglas clarified that her obligation under the terms of her plea agreement was to give truthful testimony. In denying the motion for new trial, the trial court found that trial counsel’s cross-examination of Douglas was not deficient, saying Crider had failed to show what additional questions should have been asked.

“The scope of cross-examination is grounded in trial tactics and strategy, and will rarely constitute ineffective assistance of counsel.” Simpson v. State, 277 Ga. 356, 359 (4) (b) (589 SE2d 90) (2003) (footnote omitted). Crider essentially argues that trial counsel should have asked Douglas more probing questions about the sentences she faced in order to show her motive for testifying for the State. However, Douglas testified that she could be resentenced to the maximum sentence for possession with intent to distribute if she did not testify in the manner desired by the State, later clarifying that her obligation was to give truthful testimony. Because trial counsel elicited testimony from Douglas that she had substantial motivation to testify against Crider, we cannot say that trial counsel’s decision not to delve further into the issue was unreasonable. See Daugherty v. State, 291 Ga. App. 541, 544 (3) (a) (662 SE2d 318) (2008); see also Holder v. State, 319 Ga. App. 239, 248-50 (3) (b) (736 SE2d 449) (2012) (rejecting ineffectiveness claim based on counsel’s failure to ask State witnesses about the maximum possible sentences they avoided by making a deal with the prosecution). The cases cited by Crider on appeal address whether trial judges erred in limiting cross-examination of State witnesses, not claims of deficient performance by counsel in this regard.

4. Finally, Crider raises several arguments regarding jury instructions, including an additional ineffective assistance claim. In his written set of requested jury instructions, Crider asked for a pattern charge on equal access, which provides that if the jury determines “that persons other than the defendant had equal opportunity to possess or to place the articles of contraband upon the described premises,” the jury “should acquit the defendant, unless it is shown beyond a reasonable doubt that the defendant knowingly possessed the contraband or shared possession or control with another person and helped or procured the other person in possessing and having control of the contraband.” Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2016), § 2.76.20. The trial court said it would not give the equal access charge with respect to Douglas’ vehicle, as it was clear the State was not relying on a presumption that Crider possessed the drugs found there, given that Douglas was the driver and owner of the car. The trial court ruled that it would not give an equal access charge as to the motel room, either, because it had decided not to give a charge on presumption of possession and it would give the defense a “one-sided benefit” to charge on equal access only.

On appeal, Crider argues that the trial court erred by not giving the presumption of possession charge sua sponte and by not giving the requested equal access charge. He also argues that trial counsel was ineffective for failing to request the presumption of possession jury charge. Crider concedes on appeal that the trial court’s decisions not to give the presumption of possession and equal access instructions are subject to only plain error review, given that trial counsel did not specify his objection to the charges pursuant to OCGA § 17-8-58(a). See OCGA § 17-8-58(b).

Georgia law establishes a rebuttable presumption that the owner or driver of a vehicle has possession of contraband found in the automobile. See Reyes v. State, 322 Ga. App. 496, 499 (3) (745 SE2d 738) (2013). This presumption applies to the owner or resident of a premises, as well. See Kirchner v. State, 322 Ga. App. 275, 282 (1) (c) (744 SE2d 802) (2013). Our Supreme Court has held that “[e]qual access is merely a defense available to the accused to whom a presumption of possession flows.” State v. Johnson, 280 Ga. 511, 513 (630 SE2d 377) (2006). When the trial court elects not to charge the jury on the presumption of possession, an equal access instruction is not required. Seeid.; Kan v. State, 199 Ga. App. 170, 171 (3) (404 SE2d 281) (1991).

Here, the trial court elected not to charge the jury on the presumption of possession, and thus there was no need to instruct the jury on how equal access to the contraband in question might rebut any such presumption. Of course, the State did not rely on any presumption of possession to show that Crider possessed the contraband found under the seat of the vehicle, as there was no evidence that he either owned or was driving the vehicle. As for the motel room, the State did not rely solely on a presumption that Crider possessed whatever was in the motel room that he had rented, but instead presented Douglas’ testimony that he sold and consumed drugs out of the room. The trial court did not commit error, let alone plain error, in declining to charge on presumption of possession or equal access.

The trial court also did not err in finding that trial counsel’s failure to request the presumption of possession charge constituted deficient performance. Although a presumption of possession charge might have helped Crider defend against the allegation that the drugs found in the car were not his, such a charge might also have hurt his defense as to the drugs found in the motel room. See Scott v. State, 298 Ga. App. 376, 381 (4) (b) (680 SE2d 482) (2009) (not ineffective to fail to request presumption of possession charge, since that could have operated to defendant’s detriment). And, at any rate, it is clear from the transcript that the trial court entertained the notion of instructing the jury on the presumption of possession. In deciding not to do that, the trial court did not reference any lack of a request on the part of Crider’s counsel. The trial court did not err in rejecting Crider’s ineffectiveness claim based on his trial counsel’s failure to request a presumption of possession instruction.

Judgment affirmed.

Ellington, R J., and Dillard, J., concur.

Decided March 7, 2016.

James K. Luttrell, for appellant.

Brian K. Fortner, District Attorney, Thomas E. Kegley, Assistant District Attorney, for appellee.

       It is unclear from the video how Douglas performed on those tests, although she appeared to pass a test involving recitation of the alphabet. The trial court made no findings on that point.

       Crider faults the arresting officer’s reliance on the pair’s nervousness in continuing the investigation. But the trial court made no factual findings on this point and did not rely on this factor, and so it does not play a part in our analysis, either.

       Crider was arrested on October 19,2007 and tried in March 2010. Effective July 1,2013, the Legislature deleted the word “knowingly” throughout the Code section. Ga. L. 2013, p. 222, §4.

       As suggested by the timing of the introduction of the statement and testimony by trial counsel, the statement may also have been introduced as part of defense counsel’s attempt to show that police entered the motel room before they obtained a search warrant.

       At the motion for new trial hearing, defense counsel testified that he had wanted to recall one of the officers who had testified for the State so that he could testify regarding “mandatory minimums and that sort of thing,” as he would have been “more concise and precise” than Douglas. However, the trial court rejected defense counsel’s request to recall the officer.

        See Manley v. State, 287 Ga. 338, 339-46 (2)-(3), (5) (698 SE2d 301) (2010); Howard v. State, 286 Ga. 222, 224-26 (2) (686 SE2d 764) (2009); State v. Vogleson, 275 Ga. 637 (571 SE2d 752) (2002); Hines v. State, 249 Ga. 257, 259-60 (2) (290 SE2d 911) (1982).

       Douglas told the arresting officer that the car was in her father’s name, but the officer testified that he determined the car belonged to her.


text:
    A15A1964.
    CASCADE PARC PROPERTY OWNERS ASSOCIATION, INC. v. CLARK.
    (783 SE2d 692)
   Peterson, Judge.

Cascade Parc Property Owners Association, Inc. ("Cascade Parc”) brought a refiled action against Stephani Rebecca Clark seeking to recover unpaid homeowners’ association fees, interest, and other charges. Cascade Parc appeals from the trial court’s denial of its motion for service by publication and subsequent dismissal of its complaint for failure to perfect service. Because the trial court’s order effectively rewarded Clark’s impermissible knowing evasion of service, we reverse.

Clark failed to file a responsive brief, and so she is deemed to admit the statement of facts as set out by Cascade Parc to the extent supported by the record. See Green v. Waddleton, 288 Ga. App. 369, 369 n. 1 (654 SE2d 204) (2007). So viewed, the facts show that Cascade Parc initially filed suit against Clark on November 4, 2014, seeking to recover unpaid homeowners’ association fees, interest, and other charges. Shortly after the complaint was filed, Cascade Parc unsuccessfully attempted service on a vacant unit in Atlanta. The trial court subsequently ordered Cascade Parc to perfect service on Clark or show cause why the case should not be dismissed by December 5, 2014. Cascade Parc located another address for Clark and attempted to serve her on December 2 without success. On December 3, Clark, who apparently had moved to Texas, spoke with a Texas process server by phone and agreed to meet and accept service, but then reneged on her agreement on December 4, refusing to accept service or to make herself available for service. Cascade Parc did not perfect service on Clark nor did it show cause why the case should not be dismissed by the court-ordered deadline. Rather, on December 18, Cascade Parc moved for service by publication, but the trial court denied the motion and dismissed without prejudice Cascade Parc’s complaint for failure to perfect service.

Cascade Parc then refiled suit on February 2, 2015. On February 24, service was attempted on Clark at her residence in Texas, but the process server stated via affidavit that after speaking to her through a speaker on a security keypad, Clark refused to grant entry to the building to the process server, or to otherwise make herself available for service, saying the documents “have nothing to do with her.” Two days later service was reattempted at the same address unsuccessfully, and the process server was unable to access Clark’s residence.

Three weeks later, Cascade Parc filed a motion for service by publication. On March 31, 2015, the trial court denied the motion, finding that Cascade Parc had not “exercised due diligence in pursuing reasonably available channels of information to locate and perfect service” and stating that the court was “unpersuaded that [Clark] is concealing herself to avoid service.” The court also issued an order directing Cascade Parc to perfect service or show cause why the court should not dismiss by April 17. Cascade Parc filed a motion for reconsideration of the trial court’s order denying the motion for service, but apparently did not otherwise again attempt to serve Clark within the time ordered by the court. The court denied the motion for reconsideration, and then dismissed Cascade Parc’s complaint for failure to perfect service upon Clark. This appeal followed.

On appeal, Cascade Parc claims that the trial court erred when it (1) denied Cascade Parc’s motion for service by publication, and (2) dismissed Cascade Parc’s complaint sua sponte for failure to perfect service. We agree and reverse.

We review a trial court’s denial of a motion for service by publication and associated dismissal of a complaint for an abuse of discretion. See Bailey v. Lawrence, 235 Ga. App. 73, 77-78 (2) (508 SE2d 450) (1998) (analyzing analogous provision for service by publication under the uninsured motorist provisions of OCGA § 33-7-11(e)), overruled on other grounds by Giles v. State Farm Mut. Ins. Co., 330 Ga. App. 314, 319-21 (2) (765 SE2d 413) (2014); Pickens v. Nationwide Mut. Ins. Co., 197 Ga. App. 550, 551 (398 SE2d 792) (1990) (same). See also Bailey v. Bailey, 252 Ga.App. 175, 177 (1) (555 SE2d 853) (2001).

The purpose of Georgia’s service laws is to give the defendant fair notice of the lawsuit against him. See Melton v. Johnson, 242 Ga. 400, 403-04 (249 SE2d 82) (1978).

It is the duty of a defendant to accept and submit to the service of process when he is aware of the process server’s purpose. It is generally held that if the process server and the defendant are within speaking distance of each other, and such action is taken as to convince a reasonable person that personal service is being attempted, service cannot be avoided by physically refusing to accept the summons.

Jacobson v. Garland, 227 Ga. App. 81, 83 (1) (487 SE2d 640) (1997) (citation and punctuation omitted). When a defendant knows that a process server is physically present and attempting service, but the defendant still attempts to evade service, we have held that service may be accomplished by simply leaving the papers at the residence. See, e.g., Newsome v. Johnson, 305 Ga. App. 579, 582-83 (1) (699 SE2d 874) (2010) (service proper where papers left outside of door after process server verified defendant’s identity through the door, but defendant refused to open the door); Tavakolian v. Agio Corp., 304 Ga. App. 660, 665 (4) (697 SE2d 233) (2010) (service sufficient where person meeting the description of the defendant’s wife declared that she was not the defendant and then closed the garage door and process server dropped complaint and summons on the garage floor); Hickey v. Merrit, 128 Ga. App. 764, 765 (197 SE2d 833) (1973) (service sufficient where papers left outside door after defendant talked to marshal through the door but refused to open it, and where defendant was seen through the window). The defendant attempting to evade service “cannot seek to benefit from her own refusal to cooperate.” Newsome, 305 Ga. App. at 583 (1).

Here, although Cascade Parc might have chosen simply to leave papers for Clark and argue proper service under the above-cited Georgia law, it instead undertook additional effort to secure service by filing a motion for service by publication. The trial court denied Cascade Parc’s motion for service by publication after finding that it had not “exercised due diligence in pursuing reasonably available channels of information to locate and perfect service” upon Clark, and further noted that the court was “unpersuaded that [Clark] is concealing herself to avoid service [,]” and denied reconsideration, noting that nothing changed the court’s original analysis and that although Clark had “apparently refused to permit the process server entry into a building, nothing in the record suggests that [Clark], who has been located, has concealed herself.”

It is unclear what additional “channels of information” the trial court believed Cascade Parc should have pursued, or what relevant information those channels might have provided. Cascade Parc did locate Clark’s residence. Cascade Parc attempted service at that residence multiple times, but the defendant, who knew service of the lawsuit was being attempted, evaded the process server by remaining behind a locked door. Whether or not this constituted “concealment” is beside the point, as the defendant had a duty to accept and submit to the service. See Jacobson, 227 Ga. App. at 83 (1). Under these circumstances, the trial court should have granted Cascade Parc’s motion for service by publication, and erred by denying it and dismissing the case. See Luca v. State Farm Mut. Auto. Ins. Co., 281 Ga. App. 658, 660-63 (1) (637 SE2d 86) (2006) (trial court abused its discretion in denying motion for service by publication); Wentworth v. Fireman’s Fund Am. Ins. Cos., 147 Ga. App. 854, 854-55 (I) (250 SE2d 543) (1978) (where due diligence was shown in attempt to track down defendant, request for service by publication should be granted). See also Lee, 252 Ga. at 547 (2). Given our conclusion, the trial court also erred in ruling that it had inherent authority to dismiss the case due to failure to prosecute and abandonment.

Decided March 7, 2016.

Lueder, Larkin & Hunter, Brandon D. Wagner, for appellant.

Stephani R. Clark, pro se.

Judgment reversed and case remanded.

Ellington, P. J., and Dillard, J., concur.

       OCGA § 9-10-94 “provides that service under the long arm statute is the same as that for persons found within the state” under OCGA § 9-11-4. Lee v. Pace, 252 Ga. 546, 547 (2) (315 SE2d 417) (1984); see also OCGA § 9-10-94. Service by publication on a nonresident is permissible. See Marbury v. Marbury, 256 Ga. 651, 652 (1) (352 SE2d 564) (1987).

       Afinding of “concealment” is not necessary. OCGA § 9-11-4 provides for service by publication where the defendant conceals herself or resides out-of-state. OCGA § 9-ll-4(f)(l)(A); Luca v. State Farm Mut. Auto. Ins. Co., 281 Ga. App. 658, 663 (1), n.27 (637 SE2d 86) (2006). The statute is disjunctive and gives independent grounds for service by publication. Id.


author: Branch, Judge.

text:
    A15A1858.
    THE STATE v. WILLIAMS.
    (783 SE2d 700)
   Branch, Judge.

The State appeals the trial court’s decision granting Michael Lloyd Williams’s motion to suppress the admission of a statement he provided after his arrest for obstruction. For the reasons that follow, we reverse.

At the hearing on the admissibility of Williams’s statements, Deputy Wesley Aaron, the only witness at the hearing, testified that on March 9,2014, he was dispatched to investigate a forced entry and burglary of a metal shop owned by Angie and Travis Wilkerson. Aaron spoke to Travis Wilkerson and learned that several items had been taken from the shop, including “chains and chain bucks.” Wilkerson told Aaron that a person had told him that Williams had some chains and bucks that supposedly had been stolen from Wilkerson at a property not far from Wilkerson’s shop. On cross-examination, Aaron was asked, “So basically, Mr. Wilkerson heard some gossip or some talk that Mr. Williams might have information about this case, and you went out there to talk to him about it?” Aaron replied, “Not exactly at that time. I talked to the source that he got his information from before — ” At that point, defense counsel interrupted Aaron and moved on to another point. On redirect examination, the State did not ask any follow-up questions about the source of the information.

Aaron proceeded to Williams’s mother’s residence to look for Williams, whom Aaron knew. There, Aaron told Williams that Williams was a suspect in the burglary. Aaron admitted that Williams was not in custody or under arrest. Aaron testified that as he asked questions, Williams became “very agitated and fidgety,” and as the conversation continued, Williams suddenly “took off running.” When Williams fled, Aaron demanded that Williams stop, which he did not, and Aaron then tasered Williams and arrested him for misdemeanor obstruction of an officer for hindering the investigation. Aaron explained to Williams his rights under Miranda and transported Williams back to the sheriff’s office. There, Aaron reread the Miranda warnings, and Williams agreed to make a statement, which is the subject of his motion to suppress. Following the hearing on Williams’s motion, the trial court issued an order stating that after considering the facts and the law, the court found that Williams

fled a first-tier encounter, [] something . . . the Defendant was permitted to do under Georgia law, thus his subsequent arrest for obstruction was illegal and without probable [cause,] thereby making any statement made after his arrest inadmissible.

The State appeals.

Generally, on review of a ruling on a motion to suppress the trial judge’s findings of fact should not be disturbed if there is any evidence to support them; determinations of fact and credibility must be accepted unless clearly erroneous; and the evidence must be construed in favor of the trial court’s findings and judgment. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994); Jackson v. State, 258 Ga. App. 806, 807-808 (2) (575 SE2d 713) (2002). And “[i]n all cases, [appellate courts] independently apply the law to the facts.” Drake v. State, 296 Ga. 286, 288 (2) (766 SE2d 447) (2014) (citations omitted). Here, the trial court did not make any factual findings; its rulings were either mixed questions of law and fact or questions of law. Without any specific factual findings, we construe the evidence in the light most favorable to uphold the trial court’s findings and judgment, and determine the necessary factual findings “from reading the entire order,” “by looking at how the trial court ultimately ruled.” Tate, 264 Ga. at 56 (3); see also Barnett v. State, 204 Ga. App. 491, 492 (1) (420 SE2d 43) (1992) (“The trial court perforce of its ruling on the suppression motion found [certain] testimony credible.”) (citation omitted). See generally Hughes v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015) (setting out rules for review of suppression rulings).

1. The trial court’s ruling that Williams fled a first-tier encounter means that the trial court made one or both of two findings: either Aaron did not have enough information to make a second-tier stop, Aaron did not seize Williams so as to effect a second-tier stop, or both. Construed in favor of the trial court’s decision, we conclude that the trial court necessarily made both of these findings, and we conclude that both findings are supported by the record.

As for the first finding, the State failed to elicit testimony from Aaron to show that the source of the information implicating Williams was a concerned citizen as opposed to one or more anonymous witnesses; at best, the tip came from an informant of unknown reliability. See State v. Dukes, 279 Ga. App. 247, 250 (630 SE2d 847) (2006).

Although a tip provided by an informant of unknown reliability will not ordinarily create a reasonable suspicion of criminal activity, if the tip is detailed enough to provide some basis for predicting the future behavior of the suspect, reliability may be established if the details are corroborated by the observations of the police.

Brown v. State, 223 Ga. App. 364, 366 (1) (477 SE2d 623) (1996) (citation and punctuation omitted). Here, however, the tip did not contain any detail that would provide a basis for predicting Williams’s future activity, and therefore the tip was not sufficient to create a reasonable articulable suspicion of criminal activity. Id. Accordingly, the testimony supports the conclusion that Aaron did not have enough information to make a second-tier stop.

As for the second finding, the evidence shows that Aaron did not place Williams in custody or under arrest at the time that Williams fled. Although Aaron told Williams that he was a suspect in the burglary, the trial court was authorized to find that prior to Williams’s flight, the State failed to carry its burden of showing that Aaron made a show of authority sufficient to seize Williams or that Williams had submitted to Aaron’s authority. See Chamblee v. State, 317 Ga. App. 673, 675 (732 SE2d 327) (2012) (there being no evidence that the officer engaged a siren, drew a firearm, or made any other show of force; used language or a tone of voice reflecting that compliance was compelled; or threatened, coerced, or physically restrained the defendant; and where officer admitted that defendant was not under arrest and was free to leave, “the evidence authorized the trial court to conclude that the officer’s approach of and initial inquiries to [defendant] amounted to a first-tier encounter”) (footnote omitted); Dukes, 279 Ga. App. at 249. Accordingly, the trial court did not err by concluding that Williams fled a first-tier encounter with Aaron.

2. Nevertheless, “[f]light in connection with other circumstances may be sufficient probable cause to uphold a warrantless arrest or search,” State v. Smalls, 203 Ga. App. 283, 286 (2) (416 SE2d 531) (1992), and also sufficient to give rise to articulable suspicion that the person fleeing has been engaged in a criminal act sufficient to perform a brief investigatory stop. Ransom v. State, 239 Ga. App. 501, 504 (2) (521 SE2d 430) (1999); see also illinois v. Wardlow, 528 U. S. 119, 124 (120 SCt 673, 145 LE2d 570) (2000) (“Headlong flight — wherever it occurs — is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.”); Barber v. State, 317 Ga. App. 600, 602 (1) (b) (732 SE2d 125) (2012). Although the suspect’s actions could be “ambiguous and susceptible of an innocent explanation,” officers are authorized to “detain the individuals to resolve the ambiguity.” Wardlow, 528 U. S. at 125 (citation omitted).

Decided March 9, 2016

Richard A. Mallard, District Attorney, Keith A. McIntyre, Assistant District Attorney, for appellant.

Robert L. Persse, for appellee.

Here, “other circumstances” than flight exist. Aaron had just told Williams about the stolen chains and stated that Williams was a suspect when Williams took off in headlong flight. Aaron was therefore authorized to briefly detain Williams for an investigatory stop. See McClary v. State, 292 Ga. App. 184, 187 (663 SE2d 809) (2008) (when officer questioned defendant in an area known for vehicle break-ins and radioed dispatch to confirm the defendant’s answer, at which point the defendant burst into headlong flight, officer had articulable suspicion to order defendant to halt for a brief investigatory stop); Ransom, 239 Ga. App. at 504 (2) (flight, coupled with earlier, suspicious behavior in a known drug sale location when approached by law enforcement provided officer with reasonable suspicion of criminal activity). As Williams admits, Aaron then ordered Williams to halt, thereby attempting to perform a second-tier stop, but Williams continued to flee thereby obstructing Aaron’s proper request. Compare Dukes, 279 Ga. App. at 250-251 (even if officer had reasonable suspicion of criminal activity based on defendant’s flight, officer did not perform a second-tier stop but instead arrested defendant, for which officer did not have probable cause). Because Williams failed to stop in response to Aaron’s order, Aaron then had probable cause to arrest Williams for obstruction. Thus the trial court’s conclusion that Aaron lacked probable cause to arrest Williams was erroneous as a matter of law and must be reversed.

Judgment reversed.

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

       “The United States Supreme Court has sculpted out three tiers of encounters between the police and citizens: (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.” State v. Dukes, 279 Ga. App. 247, 248-249 (630 SE2d 847) (2006) (footnote omitted).

       The categorization of a police-citizen encounter into one of the three tiers established by case law interpreting the Fourth and Fourteenth Amendments is a mixed question of law and fact. State v. Fisher, 293 Ga. App. 228, 230 (666 SE2d 594) (2008); Parker v. State, 326 Ga. App. 175, 178 (2) (754 SE2d 409) (2014). “The existence of probable cause is a legal question as to which the appellate courts owe no deference to trial judges.” Hughes v. State, 296 Ga. 744, 752 (2) (770 SE2d 636) (2015).

       See Stafford v. State, 284 Ga. 773, 774 (671 SE2d 484) (2008) (a second-tier stop requires reasonable, articulable suspicion that a crime may have been committed).

       “A person is seized by the police and thus entitled to challenge the government’s action under the Fourth Amendment when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement.” Brendlin v. California, 551 U. S. 249, 254 (II) (A) (127 SCt 2400, 168 LE2d 132) (2007) (citations and punctuation omitted). “A police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission; otherwise, there is at most an attempted seizure, so far as the Fourth Amendment is concerned.” Id. (citations omitted). Thus, a person has not been seized where an officer has approached an individual and asked a few questions. Florida v. Bostick, 501 U. S. 429,434 (II) (111 SCt 2382, 115 LE2d 389) (1991); see also State v. Walker, 295 Ga. 888, 891 (764 SE2d 804) (2014) (no seizure where instead of submitting to the officer’s direction to remove his hands from his pockets, defendant fled).

       “[A] person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.” OCGA § 16-10-24 (a).


author: Mercier, Judge.

text:
    A15A1937.
    BUTLER v. LEE.
    (783 SE2d 704)
   Mercier, Judge.

This Court granted Margaret Butler’s application for discretionary review of the trial court’s order awarding attorney fees to Jenai Lee in connection with the underlying child custody and support action. Butler contends that the trial court’s award of $25,000, made pursuant to OCGA § 9-15-14, was unauthorized because (a) she had no notice that the court was considering making such an award and, (b) the amount of the award was an unapportioned “lump sum,” and was inconsistent with the evidence and the court’s own findings. We hold that Butler received sufficient notice that the court was considering awarding fees against her pursuant to OCGA § 9-15-14 (b), but that the court erred by failing to show that the award was apportioned to include only those fees incurred because of the sanctionable conduct. We therefore vacate the court’s order and remand the case with direction.

Butler and Lee were married in New York and underwent in vitro fertilization procedures while living there. Lee’s eggs were fertilized with sperm from an anonymous donor and transferred to Butler to carry to term. The child was born in Georgia in 2011. Because at that time Georgia law did not recognize marriages between persons of the same sex, Lee petitioned the Superior Court of Fulton County to enter an adoption order “to confirm her status” as the child’s mother. See OCGA § 19-3-3.1 (2011) (prohibiting and not recognizing marriages between persons of the same sex); but see Obergefell v. Hodges,_ U. S._(135 SCt 2584, 192 LE2d 609) (2015) (holding that same-sex couples have a fundamental right to marry, and state laws excluding same-sex couples from civil marriage are invalid; states cannot refuse to recognize a lawful same-sex marriage performed in another state on the ground of its same-sex character). The trial court granted the adoption in August 2011, finding that Butler (the child’s legal mother) expressly consented to the adoption; that Lee was “an equal second parent to the child,” that the child should have the legal benefits and protections of both women as his parents; that the parent-child relationship between Butler and the child would be preserved intact; and that Lee would be recognized as the child’s second parent.

The parties later separated and, on February 18, 2013, Butler filed a petition for the court to determine child custody and support issues. In the petition, Butler sought joint legal and physical custody of the child and to be designated the child’s primary physical custodian. Lee answered, seeking sole legal and physical custody.

In December 2013, before the custody and support issues were resolved, Lee filed a motion for declaratory relief, seeking a deter mi - nation that the adoption decree terminated the legal relationship between Butler and the child. In her response to the motion, Butler argued that Lee’s motion was filed in bad faith and unnecessarily expanded the litigation. The court denied Lee’s motion, finding that Lee was estopped from taking a position contrary to the one she had taken when she petitioned the court for an adoption (i.e., requesting that both parties be granted equal rights to the child).

The court entered a final order on child support on August 25, 2014, and entered a consent order providing for joint legal custody in October 2014.

On September 15, 2014, Butler filed a motion for attorney fees and litigation costs pursuant to OCGA § 9-15-14, in connection with the defense of Lee’s motion for declaratory relief. The same day, Lee filed a request for legal fees and litigation expenses. On September 16, 2014, Lee filed a motion for reconsideration of the child support order. She also filed a response to Butler’s motion for fees and costs, arguing that the motion for declaratory relief was necessary as it sought to clarify the uncertainty of the parties’ legal rights, given that the case raised issues that were undeveloped under Georgia law, and asserting that the motion for reconsideration (for which Butler also sought fees pursuant to an amendment to her motion) was necessary to, among other things, correct a clerical error in the support order.

In November 2014, Butler filed a response to Lee’s request for legal fees and litigation expenses. In the response, Butler asserted that Lee had included no legal authority or argument to support the request; stated that she (Butler) reserved the right to present evidence on the reasonableness of the fees requested; quoted OCGA § 9-15-14 (b) and asserted that Lee “cites no factual basis to support the fee request specified in OCGA § 9-15-14”; and noted that a hearing was scheduled for January 8, 2015 on the issue of attorney fees.

The court held a hearing regarding fees and, on January 12, 2015, ordered Lee to pay Butler $4,346 in fees pursuant to OCGA § 9-15-14 in connection with the motion for declaratory relief. On January 15, 2015, the trial court entered the order at issue in this appeal, ordering Butler to pay Lee $25,000 in attorney fees pursuant to OCGA § 9-15-14, finding that Butler’s conduct of “posturing and wrangling . . . constituted stubborn litigiousness,” unnecessarily expanded the litigation and was interposed for delay and harassment. The court found that Butler had, among other things, (1) made it difficult for Lee to take the child to a dentist; (2) argued that the child should stay with a third party during the day rather than with Lee, who was a stay-at-home parent; and (3) refused mediation and forced Lee to file a motion to enforce the parties’ agreement.

1. Butler argues that the trial court erred by awarding attorney fees to Lee pursuant to OCGA § 9-15-14 (b), when Butler received no notice that Lee was seeking such fees. This Court reviews a trial court’s decision to award attorney fees pursuant to OCGA § 9-15-14 (b) for an abuse of discretion. Murray v. DeKalb Farmers Market, 305 Ga. App. 523, 525 (2) (699 SE2d 842) (2010).

OCGA § 9-15-14 (b) provides, in pertinent part:

The court may assess reasonable and necessary attorney’s fees and expenses of litigation in any civil action in any court of record if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct[.]

Thus, OCGA § 9-15-14 (b) allows the court, either on its own motion or on the motion of any party, to assess attorney fees and litigation expenses (where the above circumstances are present). However, the party against whom such fees are sought is entitled to notice that such relief may be awarded. See Williams v. Cooper, 280 Ga. 145, 147 (1) (625 SE2d 754) (2006).

What the statute provides as the means of giving proper notice is a motion for such fees filed of record by a party or some form of notice to any person potentially liable for an assessment of fees under the statute that the trial court is considering its own motion for the imposition of the sanctions made available by the statute.

Id.

We conclude that Butler received adequate notice. Specifically, in Lee’s motion to enforce the parties’ mediated custody agreement (filed in July 2014), Lee sought attorney fees based on Butler’s conduct as allegedly having “unnecessarily expanded] . . . the[se] proceeding^]”; although Lee did not cite a particular statute in the motion, the quoted language is found in OCGA § 9-15-14 (b). Then, on August 25, 2014, in its final order on child support, the court stated that it was reserving for later “[t]he issue of legal fees which may be awarded, if there is such an issue in this case,” and that after the parties have attempted to settle the fee issue, “any party seeking such fees shall make submissions on this issue ... within 20 days from the entry of this Order”; the court noted in the order that the stated deadline was intended to shorten the time allowed in OCGA § 9-15-14 (e). On September 15, 2014, Lee filed a request for oral argument, legal fees and litigation expenses (without specifying a statutory basis therefor), accompanied by an attorney’s affidavit, itemized fee statements, and other documents. On September 30, 2014, the court issued a notice that it would hear “Petitioner’s [Butler’s] and Respondent’s [Lee’s] Motion for Attorney Fees” on January 8, 2015. In Butler’s November 2014 response to Lee’s request for fees, Butler specifically cited OCGA § 9-15-14, asserted that Lee was not entitled to a fee award pursuant to that statute, reserved the right to present evidence of reasonableness of fees at oral argument, and noted that a hearing was scheduled for January 2015 on the issue of attorney fees. It was after hearing argument on the attorney fee issue that the court issued its ruling. Under the circumstances, the record shows that Butler received sufficient notice that the court was considering imposing attorney fees and litigation expenses against her pursuant to OCGA § 9-15-14 (b), and also that she had an opportunity to challenge Lee’s request for an award thereunder. See Citizens for Ethics in Government v. Atlanta Dev. Auth., 303 Ga. App. 724, 736-737 (3) (694 SE2d 680) (2010) (affirming fee award where, although trial court had not specifically stated that it was considering an award of attorney fees under OCGA § 9-15-14 (b), appellant had received ample notice and an opportunity to challenge the award, because the trial court had told appellant that it intended to take up at a bond hearing on its own motion the issue of sanctions against him, including attorney fees). Compare Williams, supra at 146 (1) (vacating attorney fee award under OCGA § 9-15-14 (b) based on lack of notice because, prior to making fee award, no party had filed a motion seeking attorney fees from appellant, the court had not mentioned that it was considering an award under OCGA § 9-15-14 (b) or an award on any basis against the appellant, and the hearing notice contained no reference either to OCGA § 9-15-14 (b) or to the possibility that appellant could be assessed attorney fees for her conduct); Rowan v. Reuss, 246 Ga. App. 139, 140 (1) (539 SE2d 241) (2000) (award of attorney fees made upon the court’s own motion under OCGA § 9-15-14 (b) was vacated and case remanded for hearing where attorney fee issue was raised during closing arguments at child support hearing and record did not demonstrate that appellant had received adequate notice of court’s intention to impose attorney fees).

2. Alternatively, Butler contends that the trial court erred by awarding Lee $25,000 in attorney fees because the amount of the award was inconsistent with the evidence and the court’s findings of fact, and the law prohibited the trial court from making an unapportioned or lump sum award of fees.

In its order, the trial court stated that Lee had incurred $106,000 in attorney fees, but that she was only requesting $25,000 in fees. The court concluded that the $25,000 request was “reasonable and necessary in addressing this protracted litigation.” Citing what it characterized as an unnecessary expansion of the litigation and conduct interposed for delay and harassment, the court entered against Butler an award of $25,000 pursuant to OCGA § 9-15-14. The court did not indicate how the award was apportioned to include only fees and expenses generated based on Butler’s sanctionable conduct.

“As we have held, in cases involving OCGA § 9-15-14 (a) or (b), the trial court must limit the fees award to those fees incurred because of the sanctionable conduct. ‘Lump sum’ or unapportioned attorney fees awards are not permitted in Georgia.” Brewer v. Paulk, 296 Ga. App. 26, 31 (2) (673 SE2d 545) (2009) (citations and punctuation omitted).

[T]he trial court’s award of [$25,000] may have been reasonable, but the trial court’s order, on its face fails to show the complex decision making process necessarily involved in reaching a particular dollar figure and fails to articulate why the amount awarded was [$25,000,] as opposed to any other amount.

Fedina v. Larichev, 322 Ga. App. 76, 81 (5) (744 SE2d 72) (2013). See generally Franklin Credit Management Corp. v. Friedenberg, 275 Ga. App. 236, 242-243 (2) (d) (620 SE2d 463) (2005) (lump sum award not permitted, fee award vacated, and case remanded for additional findings, where billing records did not clearly delineate which fees were associated with the successful claim, and trial court failed to sufficiently specify the basis for the particular amount awarded). Consequently, we must vacate the order and remand the case for further action by the trial court. See Brewer, supra, Fedina, supra. On remand,

[t]he court is directed to indicate the basis for its award. If the court needs supplemental evidence to determine the amount of attorney fees [and litigation expenses] reasonably attributable to the prevailing claim, it may hold a hearing. Alternatively, if the court concludes it can make the required determination without such evidence, by further considering the evidence already submitted, it may do so.

Decided March 9, 2016.

Jennifer L. Giles, for appellant.

Warner, Bates, McGough, McGinnis & Portnoy, Kathy L. Portnoy, Nancy I. Jordan, for appellee.

Franklin Credit Management Corp., supra at 243 (citations and punctuation omitted).

Judgment vacated and case remanded with direction.

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


text:
    A15A2043.
    BOATRIGHT v. COPELAND et al.
    (783 SE2d 695)
   Peterson, Judge.

Tracy Boatright appeals the dismissal of his personal injury lawsuit against the Appling County school superintendent and school board members. He argues that, because the school district violated its ministerial duty to comply with state law prohibiting weapons like the cannon that injured him, the trial court erred in finding that official immunity bars his claims. We reverse because the trial court erred when it concluded that interpreting the criminal law of this state was a discretionary act within the scope of authority of the school board and school superintendent.

We review the trial court’s grant of a motion to dismiss de novo. See TechBios v. Champagne, 301 Ga. App. 592, 593 (688 SE2d 378) (2009). “A motion to dismiss may be granted only where a complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proven in support of his claim.” Alcatraz Media v. Yahoo!, 290 Ga. App. 882, 882 (660 SE2d 797) (2008) (citation omitted). For purposes of this review, we take as true all the factual allegations in the complaint. Brantley v. Dep’t of Human Res., 271 Ga. 679, 679 n.3 (523 SE2d 571) (1999).

So viewed, Boatright’s amended complaint asserted that, during an Appling County High School football game, he was assisting in loading and firing a cannon owned by the Appling County School District. While Boatright was compressing the gunpowder in the cannon with a rod, it discharged, launching the rod into the air. The explosion permanently injured Boatright’s hand. Boatright brought a personal injury suit against the school district’s superintendent, Scarlett Miles Copeland, and school board members Randy Crawford, Randy Sellers, Jeffrey Miller, Scottie Ammons, and Cindy Tomberlin (collectively, “Defendants”), asserting claims for negligence per se and premises liability/negligence on the theory that Defendants were negligent in allowing the cannon to be present and used in a school safety zone and at a school function in violation of OCGA § 16-11-127.1. Defendants filed a motion to dismiss on the basis of official immunity, which the trial court granted, finding that Defendants had “discretion to interpret the law and decide that particular conduct does not violate it[,]” and to decide that the cannon was permitted by the “classroom work” exception to the general prohibition on weapons on campus found in OCGA § 16-11-127.1. This appeal followed.

Boatright argues that the trial court erred by concluding that Defendants were entitled to official immunity. We agree.

The doctrine of official immunity protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice or corruption. A discretionary act requires personal deliberation and judgment, which entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.

Aliffi v. Liberty Cnty. School Dist, 259 Ga. App. 713, 715 (578 SE2d 146) (2003) (citation omitted). “The rationale for this immunity is to preserve the public employee’s independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.” Taylor v. Campbell, 320 Ga. App. 362, 363 (739 SE2d 801) (2013) (citation omitted). But this immunity for discretionary acts does not extend to ministerial acts. “A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty.” Aliffi, 259 Ga. App. at 715 (citation omitted). For example, “[a] ministerial duty may be established by evidence such as a written policy, an unwritten policy, a supervisor’s specific directive, or a statute.” Roper v. Greenway, 294 Ga. 112, 114-15 (751 SE2d 351) (2013) (citations omitted). A public officer or employee may be personally liable for ministerial acts negligently performed, or for ministerial acts he or she negligently failed to perform. Taylor, 320 Ga. App. at 363; see also Ga. Const. Art. I, Sec. II, Par. IX(d); Gilbert v. Richardson, 264 Ga. 744, 752 (6) (452 SE2d 476) (1994).

Here, Boatright does not argue that Defendants acted wilfully or with malice, but rather argues that they negligently performed their ministerial duty to comply with the prohibition on weapons in school safety zones and at school functions imposed by OCGA § 16-11-127.1. He also argues that, due to the current procedural posture of the case, we cannot definitively determine that Defendants are entitled to official immunity. We agree.

1. The trial court erred in concluding that official immunity applied to Defendants’ exercise of discretion in interpreting Georgia criminal law.

(a) In this procedural posture, we assume that Boatright may be able to prove facts showing that possession or control of the cannon at football games violates OCGA § 16-11-127.1. OCGA § 16-11-127.1 makes it “unlawful for any person to carry to or to possess or have under such person’s control while within a school safety zone, [or] at a school function . . . any weapon or explosive compound[.]” OCGA § 16-11-127.1(b)(1).

Cannons, of course, will usually qualify as “weapon [s]” within the definition of the statute. A “weapon” is defined as including “any pistol, revolver, or any weapon designed or intended to propel a missile of any kind. . . .” OCGA § 16-11-127.1(a)(4). Cannons are generally designed to propel missiles, and this is precisely what the cannon at issue here is alleged to have done; that it allegedly fired a rod by accident, instead of a cannonball on purpose, is of no moment to a definition focused on general design. We can affirm the dismissal of Boatright’s complaint only if we conclude that he can prove no set of facts consistent with his complaint that entitles him to relief. See S-D RIRA, LLC v. Outback Prop. Owners’ Ass’n, 330 Ga. App. 442, 448 (1) (765 SE2d 498) (2014). We lack any basis for concluding that Boatright cannot prove a set of facts showing that the cannon at issue here was designed to fire a missile, and thus we presume for purposes of this appeal that the cannon is a weapon within the meaning of the statute. Of course, if on remand facts are developed showing otherwise, this decision does not preclude the trial court from reaching a different conclusion.

Presuming thusly that the cannon is a “weapon” under OCGA § 16-11-127.1, we next consider whether the cannon is subject to the statute’s prohibition, and conclude that it is. Boatright alleges that the cannon was present and used at a school function (a location in which the statute prohibits possession of weapons) and on school property (which, whether owned or leased by the school district, qualifies as a “school safety zone” and is, therefore, also a location in which the statute prohibits possession of weapons). See OCGA § 16-11-127.1(a)(2), (3). The statute contains several narrow exceptions to this general prohibition, but the only exception arguably applicable here appears in OCGA § 16-11-127.1(a)(4), which carves out from the definition of “weapon” any item “used for classroom work authorized by the teacher.” But can firing a cannon on a football field as part of a football game’s festivities be considered “classroom work”? Not in this case, at least.

When we consider the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.

Deal v. Coleman, 294 Ga. 170, 172-73 (1) (a) (751 SE2d 337) (2013) (citations and punctuation omitted). The plain text and structure of the (a)(4) exception is limited to classroom work done with the authorization of a teacher. This is not a blanket exception for all school-related — or even school-authorized — uses. Whether or not the exception requires classroom work to be done in the classroom, it clearly requires the work to arise from the classroom environment and with the authorization of the classroom teacher. There is no allegation or argument that the use of the cannon did so here. Not even the greatest possible respect for the life lessons learned through the game of football can warrant interpreting the statutory term “classroom work” as applying to firing a cannon on a football field as part of a football game without any relation to a classroom or a teacher. The (a)(4) exception is not applicable.

(b) Defendants’ hypothetical erroneous interpretation of OCGA § 16-11-127.1 does not entitle them to immunity.

The trial court held that Defendants had discretion to conclude that it would be absurd to read OCGA § 16-11-127.1 as (1) allowing teachers to bring cannons into classrooms while (2) prohibiting administrators from allowing cannons to be present outdoors. But as we have already explained, that is precisely what the text of the statute means. Defendants lack the authority to construe it otherwise, so they cannot be granted immunity for having done so.

We observed nearly 20 years ago that “[t]he time and effort our Legislature has spent in perfecting [OCGA § 16-11-127.1] reflects the inherent difficulty in developing restrictions when education is involved.” In the Interest of R. F. T., 228 Ga. App. 719, 720 (1) (492 SE2d 590) (1997) (physical precedent only). At the time of that observation, the General Assembly had amended this Code section three times since its 1992 enactment; in the 19 years since our decision in R. F T, the General Assembly has amended OCGA§ 16-11-127.1 an additional 16 times. See Ga. L. 1999, p. 362, § 1; Ga. L. 2000, p. 20, § 6; Ga. L. 2000, p. 1630, § 4; Ga. L. 2003, p. 140, § 16; Ga. L. 2008, p. 533, § 3; Ga. L. 2008, p. 1199, § 5; Ga. L. 2009, p. 8, § 16; Ga. L. 2010, p. 463, § 2; Ga. L. 2010, p. 963, § 1-4; Ga. L. 2013, p. 294, § 4-10; Ga. L. 2014, p. 432, § 1-1; Ga. L. 2014, p. 599, § 1-6; Ga. L. 2015, p. 5, § 16; Ga. L. 2015, p. 274, § 1; Ga. L. 2015, p. 422, § 5-27; Ga. L. 2015, p. 805, § 4.

Whether or not the Appling County school board and school superintendent agree with the precise balance the General Assembly has struck, acting contrary to that balance far exceeds any possible construction of the scope of their authority. “The doctrine of separation of powers is an immutable constitutional principle which must be strictly enforced. Under that doctrine, statutory construction belongs to the courts, legislation to the legislature.” Allen v. Wright, 282 Ga. 9, 12 (1) (644 SE2d 814) (2007). Neither of those powers are granted to school boards or superintendents. Because official immunity applies only to discretionary acts within the scope of Defendants’ authority, the trial court erred in concluding that Defendants were entitled to immunity.

2. Compliance with the criminal law of this state is a ministerial duty, and Defendants are not entitled to official immunity at this point in the case.

Because we conclude that Defendants did not perform a discretionary act within the scope of their authority, we next consider whether Boatright has sufficiently pled negligent breach of a ministerial duty.

“A school official does not have legal discretion to participate in a crime[.]” Caldwell v. Griffin Spalding Cnty. Bd. of Educ., 232 Ga. App. 892, 893 (503 SE2d 43) (1998) (physical precedent only). “Compliance with the law is mandatory, and in that sense arguably ‘ministerial.’ ” Id. at 894. This case is necessarily different from those in which the defendants were accused of failing to stop third parties from violating the law, because here Defendants are the ones accused of violating the law. Compare Caldwell, 232 Ga. App. at 894 (rejecting claim based on alleged failure to prevent hazing); Teston v. Collins, 217 Ga.App. 829, 830 (1) (459 SE2d452) (1995) (rejecting claim based on alleged failure to enforce loitering statute). OCGA § 16-11-127.1 does not impose a ministerial duty on school officials to enforce it against third parties, but it does impose a ministerial duty of personal compliance.

Decided March 9, 2016

It is another question, however, whether Boatright has sufficiently pled that Defendants violated that statute in their individual capacities. It is unclear from Boatright’s complaint exactly what Defendants are accused of having done — in their individual capacities — that violated OCGA § 16-11-127.1. Boatright alleges several times that Defendants “allowed” the cannon on school property, but that is not action criminalized by the statute. The statute prohibits “any person” from “carry[ing],” “possessing],” or “hav[ing] under such person’s control” any “weapon” “within a school safety zone [or] at a school function. . . .” OCGA § 16-11-127.1(b)(1). Boatright does not allege that any Defendant actually carried or possessed the cannon individually during the incident in question. Under Boatright’s complaint, however, it is at least conceivable that Defendants may have had the cannon within their individual “control.” Given that Boatright alleges that the school district owns the cannon, and that Defendants (at least some of whom together manage and control the school district, see, e.g., Ga. Const. Art. VIII, Sec. V, Par. II) knew of and encouraged its use at football games, we cannot say in this posture as a matter of law “that the allegations of the complaint disclose with certainty that [Boatright] would not be entitled to relief under any state of provable facts asserted in support.” Austin v. Clark, 294 Ga. 773, 775 (755 SE2d 796) (2014).

Defendants’ erroneous interpretation of the statute is not a discretionary act entitling them to an official immunity defense. Because we find the trial court erred in granting the motion to dismiss on these grounds, we reverse the decision of the trial court granting Defendants’ motion to dismiss.

Judgment reversed.

Dillard and McFadden, JJ., concur.

Karsman, McKenzie & Hart, C. Dorian Britt; Williams Litigation Group, Nathan T. Wiliams, for appellant.

Harben, Hartley & Hawkins, Phillip L. Hartley, Hieu M. Nguyen, for appellees.

       The trial court observed that Defendants almost certainly did not perform any such analysis, and likely instead simply retained the cannon-firing traditions of their predecessors. It is unclear what relevance to this lawsuit might be found in immunity for an act Defendants did not perform.

       Defendants cite Grammens v. Dollar as precedent for school officials’ discretionary authority to construe statutes. 287 Ga. 618 (697 SE2d 775) (2010). But Grammens did not involve a statute at all. There, a school policy required protective eyewear to he worn when explosive materials were being used, and our Supreme Court held that because the policy did not define “explosive materials,” the language of the policy imposed a discretionary duty on teachers to determine what materials qualified. This bears no resemblance whatsoever to determining that the plain language of a criminal statute need not be followed because of a belief that it is absurd.