author: Ellington, Chief Judge.

text:
    A12A1045.
    CHOATE CONSTRUCTION COMPANY v. AUTO-OWNERS INSURANCE COMPANY.
    (736 SE2d 443)
   Ellington, Chief Judge.

In this suit on payment and performance bonds, general contractor Choate Construction Company (“Choate”) appeals from the grant of summary judgment in favor of surety Auto-Owners Insurance Company (“AOIC”). Choate contends that the trial court erred in finding that, because the bonds named a principal that was a different company than the subcontractor it had hired, it could not collect on the bonds. For the following reasons, we reverse.

“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. We review the grant of summary judgment de novo, construing the evidence in favor of the nonmovant.” (Citations and punctuation omitted.) White v. Ga. Power Co., 265 Ga. App. 664, 664-665 (595 SE2d 353) (2004). So viewed, the record shows the following facts.

In November 2008, Choate entered into a contract with the Board of Regents of the University System of Georgia for the construction of fraternity and sorority housing at the University of Georgia. It hired Dedmon Electrical Services (“Dedmon”) as an electrical subcontractor on the project, which the subcontract referred to as “Greek Park.” Under the subcontract, Choate required Dedmon to furnish payment and performance bonds. Choate gave bond forms to Dedmon’s owner, Thad Dedmon, to be completed and returned to Choate before Dedmon began its work on the project. After contracting with Choate, Dedmon opened an account with, and purchased materials for the project from, Atlanta Electrical Distributors, Inc. (“AED”); Thad Dedmon personally guaranteed payment on the account.

In January 2009, Dedmon began work on the project, even though it had not yet provided the requisite payment and performance bonds to Choate. The next month, Choate received payment and performance bonds that had been issued by AOIC, as the surety, and that identified the principal as “D. E. S. Electrical Contractors” (“DES”); Jacqueline Payne had signed the bonds as the owner of DES. The bonds also identified Choate as the “Obligee,” stated that the obligee had a contract with the “Bd. of Regents [,] Univ. System of Georgia for the construction of Greek Park,” described the services to be provided under the principal’s subcontract with the obligee as “Electrical Installations,” gave the date and the value of the subcontract, and referenced and incorporated the subcontract. Although neither Dedmon nor Thad Dedmon was named on the bonds, a Choate office employee wrote “Dedmon Electric” at the top of the performance bond. Choate did not confirm that DES and Dedmon were, in fact, the same company, nor did it contact Dedmon, Thad Dedmon, DES, Payne, or AOIC to inquire about the discrepancy between the name of the principal on the bonds, DES, and the name of the company with which Choate had the subcontract, Dedmon. Instead, based upon the assumption that the bonds covered Dedmon’s services under the subcontract, Choate allowed Dedmon to continue working on the project. Dedmon eventually defaulted on the subcontract with Choate and failed to pay its account with AED.

Choate filed a claim with AOIC on the bonds, but AOIC refused to pay, asserting that neither DES, the named principal on the bonds, nor Payne, who signed the bonds as the owner of DES, were parties to the electrical subcontract between Dedmon and Choate, nor had they otherwise contracted with either Choate or AED. According to AOIC, Payne applied for the bonds as the “Owner” of DES under the surety’s “Quick Bond Program.” Under that program, AOIC offers bonds for qualified individuals or contractors with projects that take less than a year to complete and that have a total value of work of less than $250,000. Because of the limitations on the time and value of the prospective project, AOIC does not require a bond applicant to provide the underlying contract as part of his or her application, because the contract is “not relevant to the applicant’s bondability[.]” The record shows, however, that on Payne’s application for the bonds, she stated that the underlying contract was with “Choate Construction Company,” that the contract was dated “01/17/2009,” and that the contract price was “$231,960.64.” Further, under “Job Description,” the application stated “UN of GA/Greek Park/Athens, GA[J Installation of electrical components per drawings.” This information essentially matches the information on the subcontract between Choate and Dedmon.

In November 2009, AED filed suit against Choate, Dedmon, Thad Dedmon, DES, Payne, AOIC, and others, claiming damages for failure to pay on an open account, breach of contract, liability on the surety bonds, quantum meruit and unjust enrichment, and attorney fees. Choate asserted a cross-claim against AOIC and “D. E. S. Electrical Contractors, Inc. a/k/a D. E. S. Electrical Contractors a/k/a Dedmon Electric Services a/k/a Dedmon Electrical Services,” asserting breach of contract and claims for contractual indemnity and under the payment and performance bonds.

In March 2010, the trial court entered a default judgment against Thad Dedmon on AED’s claims. AED then dismissed its claims against Payne, settled its claims against Choate, and assigned to Choate its remaining claims against Dedmon, DES, and AOIC. Choate filed a motion to realign the parties by substituting it as the named plaintiff and AOIC, Thad Dedmon, and “Dedmon Electrical Services a/k/a D. E. S. Electrical Contractors” as the defendants. AOIC objected to the motion, asserting that Dedmon and DES were separate companies with no legal relationship. Choate and AOIC also filed cross-motions for summary judgment.

Following a motion hearing, the trial court granted summary judgment to AOIC, finding, inter alia, that the bonds were unambiguous in their identification of the principal as DES, the surety as AOIC, and the obligee as Choate. Further, it found that Choate had failed to present any evidence that Dedmon and DES were the same entity or that Thad Dedmon and Payne were ever involved in the same company. The court concluded that AOIC was not liable on bonds that identified DES as the principal and that, as a result, AOIC was entitled to summary judgment.

1. On appeal, Choate contends that the trial court erred in finding that AOIC was not liable on the bonds as a matter of law, arguing that the evidence, when viewed in its favor, was sufficient to create a jury issue as to whether Dedmon and DES were the same business entity for the purpose of the bonds on the subcontract. Further, Choate argues that any ambiguities in the identity of the bond principal should be construed most strongly against the surety, AOIC.

“[A] contract involving a compensable surety is construed most strongly against the surety and in favor of the indemnity which the obligee has reasonable grounds to expect.” (Citation, punctuation and emphasis omitted.) Growth Properties of Florida v. Wallace, 168 Ga.App. 893, 896 (1) (310 SE2d 715) (1983).

[W]hen the fact of suretyship does not exist on the face of the contract, the parties involved are permitted to either prove or disprove the existence of a suretyship relationship. The question is an evidentiary one and its proper resolution requires that facts be submitted to the fact finder to determine what was the intent of the parties. The cardinal rule of contract construction is to ascertain the intention of the parties. The question of the intention of the parties in this case is properly for the jury.

(Citation and punctuation omitted.) Id.

The undisputed evidence shows that Payne somehow gained possession of the bond forms Choate had given to Thad Dedmon for bonding Dedmon’s work on the subcontract, then used those forms when she applied with AOIC for the bonds. Payne’s bond application and the bonds themselves identified the distinct project that was the subject of Dedmon’s subcontract with Choate, stated the date of and the amount to be paid under the subcontract, and identified Choate as the obligee on the bonds. In fact, the bonds specifically referenced and incorporated the subcontract.

Further, the transcript of the summary judgment hearing shows that, while AOIC’s attorney was arguing that it should not be liable on the bonds because the bond principal, Payne, had no contract with Choate nor any involvement with the project, the trial court interjected and asked, “How did Jacqueline Payne ever get involved in this?” AOIC’s attorney responded,

To be absolutely candid with the Court[,] . . . the agent [processing the bonds for AOIC] apparently wrote the bonds fraudulently. I assume for the benefit of Thaddeus Dedmon[,] the agent had Jacqueline Payne, who was an elderly woman, sign the contracts, pay the premium, and incur the . . . debt. That agent is currently in jail.

The attorney also stated that, before issuing the bonds, AOIC

ran the credit of Jacqueline Payne. That’s why the bond was issued. Thaddeus Dedmon didn’t have any credit. That’s why he didn’t apply for a bond. It’s that simple. If [AOIC] had had a chance to look at [the credit history of] Mr. Dedmon, they may have issued a bond, they may not have, probably would not have. And that’s the reason why Jacqueline Payne was there.

It is axiomatic that “[a]dmissions of fact, made by a party’s counsel during a hearing or trial, are regarded as admissions in judicio and are binding on the party.” (Punctuation and footnote omitted.) Hollberg v. Spalding County, 281 Ga.App. 768, 774-775 (2) (b) (637 SE2d 163) (2006). See OCGA § 24-3-33 (“Admissions by an agent or attorney in fact, during the existence and in pursuance of his agency, shall be admissible against the principal.”). Although AOIC argues on appeal that its attorney’s statements arose from mere speculation on his part and do not constitute admissions of fact to which it should be bound, the attorney’s statement that he was being “absolutely candid” with the trial court seriously undermines that argument. Moreover, while the attorney characterized certain facts as assumptions on Ms part, he affirmatively and unambiguously stated that the only reason AOIC’s agent had Payne, “an elderly woman,” apply and pay for the bonds and incur the debt was because Thad Dedmon was unlikely to qualify for the bonds himself.

We agree with Choate’s contention that the evidence, when viewed in its favor, presents jury questions as to whether Dedmon and DES were the same company and/or whether Payne acted as an agent or “on behalf of” Dedmon when she procured the bonds. See Growth Properties of Florida v. Wallace, 168 Ga.App. at 896 (1). We note that, although the record also contains the affidavit of an AOIC assistant manager stating that Thad Dedmon did not apply to AOIC for bonds for the project at issue and that AOIC never communicated with Thad Dedmon about Payne’s bond application, such evidence simply presents a conflict in the evidence that the jury must resolve. See Sweet Water Tree Farm v. J. Frank Schmidt & Son, 287 Ga.App. 455, 457 (1) (a) (651 SE2d 787) (2007) (material discrepancies between two versions of the same document created a conflict in the evidence that required jury resolution).

Therefore, we conclude that the trial court erred in finding that there was no evidence to create a jury question on these issues and in granting summary judgment to AOIC on that basis.

2. Choate also contends that, even if there was no evidence to show that Dedmon and DES were the same company or that Payne acted on behalf of Dedmon when obtaining the bonds, the evidence presented a jury question on whether the AOIC agent intentionally wrote the bonds “fraudulently.” Choate argues that, as a result, AOIC was not entitled to summary judgment, because Georgia law prevents a surety from benefitting from such fraud in order to avoid its obligations on the bonds. See American Mfg. Mut. Ins. Co. v. Tison Hog Market, 182 F3d 1284 (11th Cir. 1999) (“Tison Hog’).

To establish fraud, a plaintiff must produce evidence showing a willful misrepresentation of a material fact, made to induce the plaintiff to act, upon which the plaintiff acts to his injury. Although knowledge that the representation is false is an essential element of fraud, a reckless representation of facts as true when they are not, if intended to deceive, is equivalent to a knowledge of their falsehood even if the party making the representation does not know that such facts are false. Amisrepresentation is intended to deceive where there is intent that the representation be acted upon by the other party.

(Punctuation and footnotes omitted; emphasis in original.) Petzelt v. Tewes, 260 Ga.App. 802, 805 (1) (581 SE2d 345) (2003).

[B]ecause fraud is inherently subtle, slight circumstances of fraud may be sufficient to establish a proper case. Proof of fraud is seldom if ever susceptible of direct proof, thus recourse to circumstantial evidence usually is required. Moreover, it is peculiarly the province of the jury to pass on these circumstances showing fraud. Except in plain and indisputable cases, scienter in actions based on fraud is an issue of fact for jury determination.

(Punctuation and footnote omitted.) Id. See also OCGA § 23-2-57 (Although fraud may not be presumed, because there are some circumstances in which direct evidence is not available, it may be established by slight evidence.).

Decided November 20, 2012.

Kilpatrick, Townsend & Stockton, Reginald A. Williamson, for appellant.

Busch & Reed, Chad K. Reed, Matthew B. Jones, Nicole A. Burgess, for appellee.

Given the evidence presented, including the admissions in judicio by AOIC’s attorney, as recounted above, we conclude that jury issues exist as to whether Thad Dedmon and Payne worked together to defraud Choate; whether AOIC’s agent had actual or constructive knowledge of, or participated in, such fraud; and whether AOIC intentionally or recklessly misrepresented to Choate one or more material facts when it issued the bonds. See Petzelt v. Tewes, 260 Ga. App. at 805 (1). In addition, the questions of whether Choate exercised reasonable diligence to discover such fraud once it received the bonds, or whether Choate breached some duty to timely notify AOIC of facts that suggested the commission of a fraudulent act, are issues for jury determination. See Capriulo v. Bankers Life Co., 178 Ga.App. 635, 640 (2) (344 SE2d 430) (1986) (A defrauded party “is not bound to exhaust all means at his command to ascertain the truth before relying upon the representations. Ordinarily the question whether the complaining party could ascertain the falsity of the representations by proper diligence is for determination by the jury.”) (citation and punctuation omitted).

Judgment reversed.

Phipps, P. J., concurs. Dillard, J., concurs in judgment only.

       See also Capital Color Printing v. Ahern, 291 Ga. App. 101, 104-105 (1) (661 SE2d 578) (2008) (To satisfy the Statute of Frauds, a contract of guaranty must sufficiently identify the principal debtor. However, while the Statute of Frauds prohibits using parol evidence to identify the principal debtor if that term is completely missing from the contract, it does not prohibit using parol evidence to resolve ambiguities as to the identity of the debtor. Thus, because the written guaranty at issue identified the principal debtor as the “customer,” parol evidence was admissible to help resolve any ambiguity as to whom that term referred.).

       See Goldman v. Vinson, 244 Ga.App. 815, 817 (1) (535 SE2d 305) (2000) (“As a matter of contract law, incorporation by reference is generally effective to accomplish its intended purpose where the provision to which reference is made has a reasonably clear and ascertainable meaning.”) (footnote omitted).

       See OCGA § 10-6-1 (“The relation of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf.”); see also Southeastern Exposition Mgmt. Co. v. Genmar Indus., 250 Ga.App. 702, 704-705 (551 SE2d 830) (2001) (“Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act. The existence of agency and the extent of the agent’s authority are questions of fact. Aclaim of agency may be proved, as any other fact, by circumstantial evidence. The fact of agency may be established by proof of circumstances, apparent relations, and the conduct of the parties. Direct evidence of an agency relationship is not required. The threshold for showing agency in this context is low, and even scant factual support may suffice.”) (punctuation and footnotes omitted).

       See also generally Mitchell v. Calhoun, 229 Ga. 757, 760 (1) (194 SE2d 421) (1972) (Where material information about the defendant’s alleged fraudulent transaction rests exclusively within the knowledge of the participants to such fraud, so that 'the plaintiff has no means successfully to meet the facts alleged in an affidavit by the defendant in which he denies such fraud, then the defendant’s affidavit, standing alone, does not entitle him to summary judgment.).

       In Tison Hog, a surety issued performance bonds naming the owner of two livestock companies as the principal so the companies could purchase hogs from several livestock sellers. 182 F3d at 1286 (I). When the companies failed to pay for the hogs, the sellers sought to collect on the bonds. Id. During an investigation, the surety learned that the bond applications, which contained indemnification agreements, were signed by the owner of the companies, but they also contained the forged signatures of two other people who had purportedly agreed to indemnify the surety. Id. at 1286-1287 (I). The surety brought an action seeking a declaratory judgment relieving it from liability on the bonds, claiming that the forged signatures constituted fraud that rendered the bonds void ab initio. Id. at 1287 (I). The trial court ruled that the bonds were void ab initio due to fraud and granted summary judgment to the surety. Id. On appeal, the circuit court ruled that, under Georgia common law, “a surety is still liable to a creditor even if the principal commits fraud so long as the creditor does not participate in the fraud.” (Citations omitted.) Id. at 1290 (III). Because the evidence showed that the fraud was committed solely by the principals and there was no evidence that the livestock sellers (as the creditors) participated in the fraud, the Court concluded that the surety was not relieved of liability on the bonds on the basis of fraud and, thus, was not entitled to summary judgment. Id.


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A12A1072.
    PARKER v. ALL AMERICAN QUALITY FOODS, INC.
    (734 SE2d 510)
   DOYLE, Presiding Judge.

Frank Parker slipped while grocery shopping in a local Food Depot and filed the instant personal injury lawsuit against All American Quality Foods, which operated the store. Parker appeals the trial court’s grant of summary judgment to the store, and we reverse for the reasons that follow.

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

So viewed, the evidence establishes that Parker went grocery shopping on a rainy day in December 2009. Parker took a shopping cart after entering the front door and proceeded into the store, passing a row of six cash registers to his left. He stopped to look at a display of bread and slipped on water, which had accumulated on the floor. Parker noticed after the fall that his pants were wet on his hip, and he deposed that no warning signs were posted within the store. Parker’s shopping companion averred that no warning signs were visible when the pair were in the store. As a result of the fall, Parker had his right hip replaced and continues to have issues related to the surgery.

Richard Davis, the store manager, deposed that shortly after he arrived for work, he heard a cashier scream because a customer had fallen. Davis approached Parker, and saw a nickel sized drop of water on the floor near the location of the fall. Davis instructed an employee to retrieve a mop and bucket from the back of the store to mop the area. Davis testified that store employees often inspect and mop the premises, but did not state whether there was a schedule or routine, and he deposed that immediately upon arriving at the store about five to ten minutes before the fall, he had mopped the area on which Parker fell; however he also deposed that he saw water at the entrance of the store, and upon entry, grabbed a damp mop to remove the water.

The store filed a motion for summary judgment, which the trial court granted. This appeal followed.

A proprietor may be liable only if he had superior knowledge of a condition that exposed an invitee to an unreasonable risk of harm. Although summary judgment is granted only when the evidence is plain, palpable, and undisputed, the mere ownership of land or buildings does not render one liable for injuries sustained by persons who have entered thereon or therein; the owner is not an insurer of such persons, even when he has invited them to enter. Nor is there any presumption of negligence on the part of an owner or occupier merely upon a showing that an injury has been sustained by one rightfully upon the premises.

Here, the trial court erred by granting summary judgment to the store because questions of fact remained as to the store’s negligence. The trial court erroneously concluded as a matter of law that the water upon which Parker allegedly fell was not an unreasonable risk of harm simply because it was rainy on the day he fell. This conclusion is contrary to Georgia law. Parker did not fall at the entrance of the store, and instead, as found by the trial court “retrieved] a shopping cart and walkfed] past six checkout stations” before falling. As the Supreme Court of Georgia explained in Dickerson v. Guest Services Co. of Va., although

[i]t is common knowledge that water accumulates on the ground on rainy days, and the risk of harm imposed by this accumulation is not unreasonable [because] that concept is based on the common knowledge that the ground outside gets wet on rainy days, it cannot properly be applied to a portion of an interior space where an invitee has no reason to expect water to accumulate on the floor.

Moreover, the trial court’s order stated that “[t]here is no evidence of anything approaching an unusual quantity of standing water on the store’s floor,” but our case law does not hold that a showing of “an unusual quantity” of standing water is required in order to show an unreasonable risk of harm, only that it is one of many possible abnormal risks. The testimony is disputed as to the amount of water at the location of Parker’s fall, so it is for the jury to determine whether an unreasonable risk of harm existed at the location of his fall from the amount of water located there. And while the store argues that Davis remedied any hazard by mopping the area with a damp mop prior to Parker’s fall, Davis’s deposition testimony was inconsistent regarding his time of arrival at the store and the portion of the store that he mopped: for instance, Parker did not fall at the entrance of the store, but Davis deposed that he mopped immediately after entering through the store’s front door because there was some water at the entrance.

Decided November 20, 2012.

Park, Chesin & Walbert, Andrew Y. Coffman, Cuong M. Truong, for appellant.

Harper, Waldon & Craig, Russell D. Waldon, John E. Alday, Meadows & Made, Stephen P. Morris, for appellee.

Moreover, it is also a jury question as to whether the store exercised reasonable care with regard to its duty to keep the premises safe for customers because Davis’s testimony was inconsistent and Parker and his companion both testified that signs were not posted and a mop had to be brought from the back of the store, disputing Davis’s testimony regarding store procedure of posting warning signs and keeping a mop at the front of the store. Accordingly, the trial court erred by granting summary judgment to the store.

Judgment reversed.

Ellington, C. J., concurs. Dillard, J., concurs in judgment only.

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

       (Punctuation and footnote omitted.) Courier v. Pilot Travel Centers, 317 Ga. App. 229, 230-231 (730 SE2d 493) (2012).

       See Dickerson v. Guest Svcs. Co. of Va., 282 Ga. 771 (653 SE2d 699) (2007).

       282 Ga. at 772-773.

       Id. at 772.

       See Roberts v. Outback Steakhouse of Fla., 283 Ga.App. 269, 270 (641 SE2d 253) (2007) (explaining that “the normal accumulation of water at the entrance of a business during a rainy day is not an unreasonable hazard”) (emphasis omitted and supplied).

       See Smith v. Toys “R" Us, 233 Ga.App. 188, 191-192 (1) (504 SE2d 31) (1998); compare with Roberts, 283 Ga.App. at 269-271.


author: Branch, Judge.

text:
    A12A1102.
    THE STATE v. HARTSFIELD.
    (734 SE2d 513)
   Branch, Judge.

The State previously appealed the trial court’s grant of Eugene Hartsfield’s motion to dismiss his indictment for violation of his constitutional right to a speedy trial. On review, we vacated the trial court’s order and remanded the case for reconsideration because some of the trial court’s findings of fact were not supported by the record and because the court made other errors. State v. Hartsfield, 308 Ga.App. 753, 754-755 (1) (711 SE2d 1) (2011). Upon remand, the trial court reconvened the hearing and received further evidence from Hartsfield; the State offered no evidence. The court again granted Hartsfield’s motion to dismiss, and the State again appeals.

The procedural facts set out in the prior appeal show the lengthy passage of time in this case:

Hartsfield was arrested on April 16, 2005. He was indicted on April 14,2009, for aggravated battery, aggravated assault, and three counts of violation of oath by a public officer. The case was placed on a trial calendar in July 2010, but on July 30,2010, Hartsfield filed a motion to dismiss the indictment for violation of his right to a speedy trial under the state and federal constitutions. The trial court granted the motion on August 6, 2010, and the state filed this [first] appeal.

Hartsfield, 308 Ga. App. at 753. After this Court vacated the trial court’s order and remanded the case, the trial court held the second hearing on October 5, 2011, and it granted Hartsfield’s speedy trial motion anew on January 4, 2012.

As noted in the earlier appeal, constitutional speedy trial claims are governed by the framework laid out in Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972), and Doggett v. United States, 505 U. S. 647 (112 SC 2686, 120 LE2d 520) (1992). Ruffin v. State, 284 Ga. 52, 55 (2) (663 SE2d 189) (2008). The analysis has two stages:

In the first stage of the analysis, the court must determine whether the pretrial delay is sufficiently long to be considered presumptively prejudicial. ... If the delay has passed the point of presumptive prejudice, the court must proceed to the second step of the Barker-Doggett analysis, which requires the application of a delicate, context-sensitive, four-factor balancing test to determine whether the accused has been deprived of the right to a speedy trial.

(Citations, punctuation and footnote omitted.) Ferguson v. State, 303 Ga. App. 341, 342 (693 SE2d 578) (2010). “The four factors to be considered in the case of presumptively prejudicial delay are (a) the length of the delay, (b) the reason for the delay, (c) the defendant’s assertion of his right, and (d) the prejudice to the defendant.” (Citation omitted.) Hartsfield, 308 Ga.App. at 753 (1).

We must determine whether the trial court abused its broad discretion in ruling that Hartsfield’s speedy trial rights were violated. State v. Gleaton, 288 Ga. 373, 375 (703 SE2d 642) (2010). Nevertheless, “where . . . the trial court has clearly erred in some of its findings of fact and/or has misapplied the law to some degree, the deference owed the trial court’s ultimate ruling is diminished.” Williams v. State, 277 Ga. 598, 601 (1) (e) (592 SE2d 848) (2004).

(a) As in the earlier appeal, the State concedes and the trial court properly found that the 48-month delay from Hartsfield’s arrest to his indictment plus the subsequent 15-month delay prior to Hartsfield’s initial motion to dismiss was presumptively prejudicial.

(b) Given that the threshold inquiry has been met, the trial court must again consider the length of the delay:

[T]he length of the delay should be considered by the trial court again “by factoring it into the prejudice prong of the Barker analysis, with the presumption that pretrial delay has prejudiced the accused intensifying over time.” The presumptive prejudice arising from the delay is “part of the mix of relevant facts, and its importance increases with the length of delay,” but it “cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria.”

(Footnotes omitted.) Harris v. State, 314 Ga.App. 565, 566 (b) (i) (724 SE2d 864) (2012).

The State concedes the trial court correctly weighed the length of the delay in favor of Hartsfield, and we agree. The delay here was uncommonly long given that the case involves only one brief incident between two people: Hartsfield, a P.O.S.T. certified officer and an employee of the Georgia Department of Juvenile Justice, who was working an approved second job providing security for a nightclub; and a patron of that nightclub. Hartsfield was charged with aggravated battery, aggravated assault, and three counts of violation of an oath by a public officer for allegedly hitting the patron with a flashlight.

(c) The first contention on appeal is that the trial court, for the second time, erred in its analysis of the second factor — the reason for the delay. In the first appeal, we found that the trial court erred in concluding that the reason for the delay was “far from benign.” Hartsfield, 308 Ga. App. at 754-755 (1) (c). In its order upon remand, the court noted that despite a second hearing regarding the matter, “[t]he State elected at the original hearing, and at the hearing reconvened on remand, to present no explanation whatsoever” for the reason for the four-year delay in indicting Hartsfield. The court emphasized that “the State... stood mute and offered no explanation for the reason for the preindictment delay.” The court offered its interpretation of the State’s position:

The Court construes this silence as, at best, an admission that there is no explanation for the delay, or, at worst, a desire to avoid acknowledging a more egregious reason for delay (such as hampering the defense or harassing the Defendant).

Finally, the court noted that it was independently aware of another case “in which the State unduly delayed indictment of a P.O.S.T. certified officer.”

The court then considered evidence offered by Hartsfield suggesting that the State had no just reason for delaying the indictment. In so doing, the court found that the district attorney’s investigation was mostly complete after June 2005, which finding is supported by the record. The court commented on the straightforward nature of the case, arising from what the court termed “a barroom brawl.” The court also noted that there were no other factors that would add layers of complexity. For these reasons, the court rightly weighed the reason for the delay against the State.

The court then explained why it would weigh this factor “more strongly’ against the State:

When the State offers no reason for the pre-indictment delay, the Court must conclude that there is no reason. The timely investigation, coupled with the delayed indictment, the beginning emergence of a pattern of delaying indictment of P.O.S.T. certified officers accused of wrongdoing, and the State’s position of failing and refusing to offer any explanation for the delay[,] compound to weigh the reason for the delay more strongly against the State.

The court also weighed this blame against the State for the following reason:

The reason for the delay rests with the State, while the reasons are not so blatantly intended to hamper the [d] efense or gain a tactical advantage, neither are they obviously innocently the result of the press of business. The second factor weighs somewhere in the middle of the spectrum against the State.

As in the first appeal, the State contends the court erred by not weighing this factor relatively benignly against the State because there was no evidence of deliberate delay. “If the delay attributable to the State’s preparation of its case is not deliberate but is negligent, it is weighted as a ‘relatively benign’ factor against the [S]tate.” Hartsfield, 308 Ga.App. at 755 (1) (c). See also Vermont v. Brillon, 556 U. S. 81, 90 (II) (129 SC 1283, 173 LE2d 231) (2009) (“ ‘different weights should be assigned to different reasons’ ”) (citation omitted). Moreover, “where no reason appears for a delay, we must treat the delay as caused by the negligence of the [S]tate in bringing the case to trial.” (Punctuation omitted.) Hartsfield, 308 Ga. App. at 754-755 (1) (c).

But there is some merit in the court’s reasoning that there is a difference between having no explanation for prosecutorial delay and refusing to provide one in the face of facts showing that the investigation was largely complete in June 2005, almost four years before indictment. See, e.g., Jackson v. State, 272 Ga. 782, 784 (534 SE2d 796) (2000) (although not deliberate, State’s delay was not “relatively benign”). This particular issue was not addressed in the trial court’s first order or in the first appeal. Furthermore, “[e]ven benign negligence will begin to weigh more heavily against the State, the longer the delay caused by the same.” Hayes v. State, 298 Ga.App. 338, 345 (2) (b) (680 SE2d 182) (2009).

The State also complains about the trial court’s vague reference to another case involving a P.O.S.T. certified officer, of which the court claimed to be aware, as well as a comment about the Fulton County district attorney’s office. Because the trial court did not mention the latter point in its conclusions, we find no error. With regard to the case involving another P.O.S.T. certified officer, there is no evidence in the record to support this comment and therefore the court erred in considering this point. Thus, the trial court’s ultimate conclusion regarding the reason for delay includes this error. We need not determine whether this error, standing alone, warrants reversal because, as shown below, the court’s final conclusion contains other errors.

(d) The third Barker factor is the timeliness of the defendant’s assertion of the right to a speedy trial. “It is the defendant’s responsibility to assert the right to trial, and the failure to exercise that right is entitled to strong evidentiary weight against the defendant.” (Citations and punctuation omitted.) Brannen v. State, 274 Ga. 454, 456 (553 SE2d 813) (2001); Phan v. State, 290 Ga. 588, 595 (1) (c) (723 SE2d 876) (2012). As noted in the first appeal, Hartsfield delayed assertion of the right for over five years from his arrest, until the eve of trial. Hartsfield, 308 Ga.App. at 755 (1) (d).

In the first appeal, we found that the trial court improperly considered several circumstances in mitigation of Hartsfield’s delay in asserting his right to a speedy trial. Hartsfield, 308 Ga.App. at 755 (1) (c). On remand and following the reconvened hearing, the trial court again found that Hartsfield’s late assertion of his right was mitigated by nine or more such factors. The trial court concluded that Hartsfield’s delay in asserting his right must be weighed against him but the mitigating factors “lighten the significant weight this delay would otherwise merit.”

The State asserts the trial court erred with regard to three mitigating factors. First, the court stated that following Hartsfield’s arrest and before his indictment, he was unrepresented and there was no one to whom he could demand a speedy trial. As to this factor, the trial court did not abuse its discretion. Although “invocation of the speedy trial right need not await ‘indictment, information, or other formal charge,’ ” Ruffin, 284 Ga. at 63, “a trial court has the discretion to mitigate the weight given this factor when a defendant fails to assert his right during the period between arrest and indictment if he was out on bond and without counsel,” as Hartsfield was here. State v. Pickett, 288 Ga. 674, 676 (2) (c) (3) (706 SE2d 561) (2011). See also Gleaton, 288 Ga. at 375 (not fatal error where trial court concluded “as a practical matter a defendant on bond is highly unlikely to come forward and demand an indictment be returned against him or that the case be brought before a court for any reason”) (punctuation omitted).

The State next contends the trial court erred by finding mitigation in the fact that Hartsfield, while represented by counsel, sent a letter to the court asking that the case be resolved as soon as possible. We agree that a pro se demand for a speedy trial filed while a criminal defendant is represented by counsel “do[es] not constitute a viable demand for a speedy trial”; it may, however, “militate in his favor.” (Citations, punctuation and footnotes omitted.) Ditman v. State, 301 Ga.App. 187, 194 (2) (c) (687 SE2d 155) (2009). Here, the trial court did not conclude that the letter functioned as a speedy trial demand; rather, the court appears simply to have considered the letter while weighing the third Barker factor, which is not impermissible.

Finally, the State contends the court erred by finding evidence of mitigation in the fact that the State delayed production of a final witness list until the eve of trial, despite the court’s order to complete discovery. Whether such an action is evidence of mitigation depends on the specific circumstances. See Williams v. State, 290 Ga. 24, 27 (3) (717 SE2d 640) (2011) (argument that defendant could not assert his right sooner because discovery was not complete is unavailing). Compare State v. Shirley, 311 Ga. App. 141, 146 (3) (c) (714 SE2d 636) (2011) (State ignored trial court’s order to reveal confidential informant’s identity for almost two years). And here, the court placed only minor emphasis on this point, concluding that “[t]his factor does mitigate the delay somewhat, but not to the degree the Court found in Shirley.” Thus, any possible error was minor.

The court also found several other mitigating factors about which the State does not complain and ultimately concluded that it would weigh the third Barker factor against Hartsfield but that the various mitigating factors ‘lighten the significant weight this delay would otherwise merit.” Because we find reversible error with regard to the final factor — prejudice — we need not determine whether any error as to the third factor, standing alone, would merit reversal.

(e) On remand from the first appeal, the trial court found that Hartsfield suffered actual prejudice by the State’s delay in the form of “anxiety and concern” and impairment of his defense, two of the three grounds for asserting prejudice under the fourth prong of Barker.

The prejudice inquiry focuses on three central aims of the speedy trial right: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired,” the last of which is the most serious.

(Citation omitted.) Sweatman v. State, 287 Ga. 872, 875 (6) (700 SE2d 579) (2010). Also, as our Supreme Court has explained, “once the threshold of presumptive prejudice is satisfied, a presumption of prejudice always exists, although it increases in weight over time.” (Citations omitted.) State v. Porter, 288 Ga. 524, 531 (2) (c) (4) (705 SE2d 636) (2011). “The weight given to the prejudice factor may be bolstered if the defendant can demonstrate some actual impairment to his defense in addition to prejudice that is presumed from the passage of time.” Id. at 532 (2) (d). Thus, “affirmative proof of particularized prejudice is not essential to every speedy trial claim.” (Citation omitted.) Doggett, 505 U. S. at 655 (III) (A).

Absent some unusual showing, the anxiety and concern of an accused that necessarily accompanies serious pending charges is not likely to be determinative in defendant’s favor. Boseman v. State, 263 Ga. 730, 733 (1) (d) (438 SE2d 626) (1994); Sweatman, 287 Ga. at 875 (6); Sechler v. State, 316 Ga. App. 675, 681 (2) (d) (730 SE2d 142) (2012). Here, the court found that Hartsfield suffered anxiety and concern prior to his indictment because even though he was suspended with pay, he was unable to supplement his income with a second job as he had done pre-arrest, and his career was placed on hold, rendering him ineligible for possible promotion. The court found that he suffered following his indictment because he was fired from his job; unable to obtain regular employment; unable to visit his children in California; unable to pay for his daughters to travel to Georgia to visit; and unable to stay current on his child support obligations, “which can potentially subject him to additional prosecution.”

Most of Hartsfield’s concerns have been held not to be unusual by this Court and, therefore, do not rise to the level of actual prejudice. Mental anguish, inability to find employment, and inability to leave the state are burdens that are “always present to some extent” and they fall short of establishing an unusual showing. See, e.g., Watkins v. State, 267 Ga. App. 684, 686 (d) (600 SE2d 747) (2004) (mental anguish, economic impact, inability to leave state); Weems v. State, 310 Ga.App. 590, 595 (2) (d) (714 SE2d 119) (2011) (inability to leave state, employment struggle); State v. Reimers, 310 Ga.App. 887, 891 (2) (d) (714 SE2d 417) (2011) (loss of employment, economic difficulties, inability to see children). Compare Lambert v. State, 302 Ga.App. 573, 577 (692 SE2d 15) (2010) (even though the fact that defendant “lost two jobs because he had to travel to court on multiple occasions is evidence of anxiety and concern,” where defendant “chose not to alleviate his anxiety and concern by filing a speedy trial demand” for five years, he failed to show prejudice) (citations omitted). Given a presumption of prejudice, a showing of actual prejudice is not always necessary; here, however, the trial court based its conclusion on an improper finding of actual prejudice. See Sechler, 316 Ga.App. at 681 (2) (d); Reimers, 310 Ga.App. at 892-893 (2).

Finally, the court found that Hartsfield’s defense was impaired by the delay because he was unrepresented for the bulk of the time, and that his “ability to track down patrons who were present has been severely hampered by the passage of time during which [he] had no counsel to investigate, prepare his case and protect his interests.” But in the first appeal, we addressed the same point and found that the evidence of prejudice to Hartsfield’s defense was insufficient:

Decided November 20, 2012.

Paul L. Howard, Jr., District Attorney, Lenny I. Krick, Assistant District Attorney, for appellant.

As for the most important third factor, [cit.], the trial court found that the delay impaired Hartsfield’s defense because he was without counsel for almost the entire time from the date of his arrest until he appeared at arraignment on October 22, 2009. Therefore, he lacked professional assistance to investigate his case. The court found that Harts-field’s “ability to track down witnesses to the incident has been severely hampered by the passage of time during which Hartsfield had no counsel to prepare his case and protect his interests.” This factual finding is not supported by the record. Hartsfield offered no evidence that he was unable to locate witnesses because of the delay. [Cit.] Accordingly, there was no basis for the trial court to conclude that Hartsfield’s defense was impaired because of counsel’s difficulty in locating witnesses.

Hartsfield, 308 Ga.App. at 757 (1) (e). And, even on remand, Harts-field failed to present evidence that he was unable to locate witnesses because of the delay and failed to offer any other such evidence. Without specific evidence on this point, there is no basis for the trial court to conclude that the delay was actually prejudicial to the appellant’s defense. See Porter, 288 Ga. at 530 (2) (c) (4).

“[Wjhere . . . the trial court has clearly erred in some of its findings of fact and/or has misapplied the law to some degree, the deference owed the trial court’s ultimate ruling is diminished.” Williams, 277 Ga. at 601 (1) (e). Here, given the errors noted above, the trial court could not properly balance the Barker factors, and therefore the trial court’s order must be vacated and the case remanded “for the trial court to exercise its discretion again using properly supported factual findings and the correct legal analysis, reflected in an adequate written order.” (Citations omitted.) Porter, 288 Ga. at 534 (2) (e).

Judgment vacated and case remanded with direction.

Miller, P. J., and Ray, J., concur.

Brian A. Hobbs, for appellee.

       The Georgia Peace Officer Standards and Training Act, OCGA § 35-8-1 et seq., establishes the Georgia Peace Officers’ Standards and Training Council (P.O.S.T.), and that entity determines whether a candidate “is qualified to bje employed as a peace officer and to issue a certificate to those so qualified.” OCGA § 35-8-7 (12).

       The United States Supreme Court has explained,

        Barker instructs that “different weights should he assigned to different reasons,” and in applying Barker, we have asked “whether the government or the criminal defendant is more to blame for the delay.” Deliberate delay “to hamper the defense” weighs heavily against the prosecution. “More neutral reasons such as negligence or overcrowded courts” weigh less heavily ‘hut nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” Ibid.
      (Citations and punctuation omitted.) Brillon, 556 U. S. at 90 (II).

       “P]f a trial court intends to take judicial notice of any fact, it must first announce its intention to do so on the record, and afford the parties an opportunity to be heard regarding whether judicial notice should be taken.” (Citation and punctuation omitted.) Bizzard v. State, 312 Ga.App. 185, 188 (2) (718 SE2d 52) (2011).


author: Boggs, Judge.

text:
    A12A1179.
    LANDRUM et al. v. INFINITY SAFEGUARD INSURANCE COMPANY.
    (734 SE2d 520)
   Boggs, Judge.

Sandra Landrum and Kenneth Turner appeal from the trial court’s order granting summary judgment in favor of Infinity Safeguard Insurance Company (“Infinity”). Appellants contend that the trial court erred by failing to find a policy exclusion void as against public policy. For the reasons explained below, we affirm.

On appeal from the denial or grant of summary judgment, [the appellate court] must conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citation omitted.) Northwest Carpets v. First Nat. Bank, 280 Ga. 535, 538 (1) (630 SE2d 407) (2006). So viewed, the record shows that Landrum was a passenger in a car driven by her adult grandson, Turner, when he ran a stop sign and caused an accident with a third party. At the time of the accident, Landrum was the owner of the car driven by Turner, and Turner resided with her. Following the accident, Landrum filed a complaint against Turner seeking damages for her personal injuries.

Turner did not own a vehicle and was not insured under any automobile insurance policy other than the one at issue in this appeal. In an affidavit submitted below, Turner states that he knew of and relied upon his grandmother’s insurance policy because he did not have any other automobile liability insurance. He also averred that he would not have driven his grandmother’s car if he had known that it would not provide coverage for injuries to her.

Landrum is the only named insured listed on the declarations page of the policy issued to her by Infinity. The policy provides that Infinity “will pay damages for bodily injury and property damage for which an insured person is legally liable because of an accident... The policy provided bodily injury liability coverage in the amount of $25,000 per person and $50,000 per accident. The liability portion of the policy defines an insured person as “(1) you, a relative or a resident; or (2) A person using the insured auto with your express or implied permission.” It defines “relative” to include “any person related to you by blood, marriage, or adoption . . . who lives in your household, whether or not temporarily living elsewhere. . . . Any relative must be listed on the application or endorsed on the policy prior to a loss.” The policy excludes liability coverage for “bodily injury to you” and “you” is defined to include “the named insured shown on the Declarations Page.”

Based upon these policy definitions and exclusions, Infinity filed a declaratory judgment action against Landrum and Turner seeking clarification of its obligations under the policy. After completing minimal written discovery, Infinity moved for summary judgment in its favor, contending there was no liability coverage based upon the policy exclusion for bodily injury to a named insured, and there was no uninsured motorist coverage because Landrum’s vehicle did not fall within the policy definition of an uninsured motor vehicle. Landrum and Turner opposed the motion based upon their contention that the bodily injury exclusion violates public policy. They did not dispute Infinity’s contentions with regard to a lack of uninsured motorist coverage under the policy. Following a hearing on Infinity’s motion, the trial court granted summary judgment in favor of Infinity.

On appeal, Landrum and Turner contend that the policy exclusion for bodily injury to a named insured violates public policy because Landrum is an innocent member of the motoring public and Turner will be left with unfair exposure to unanticipated liability. “The argument that an automobile insurance policy’s exclusions might offend public policy stems from the legislature’s enactment of the mandatory insurance statute.” (Citations and punctuation omitted.) Federated Mut. Ins. Co. v. Dunton, 213 Ga.App. 148, 148-149 (1) (444 SE2d 123) (1994). “[Sjince Georgia law does not require liability insurance in every case, [the Supreme Court of Georgia has] concluded that exclusions are not per se prohibited but must be individually evaluated to determine whether they are against public policy.” Southern Guaranty Ins. Co. v. Preferred Risk Mut. Ins. Co., 257 Ga. 355, 356 (359 SE2d 665) (1987).

In Southern Guaranty, the Supreme Court of Georgia held that a family exclusion clause did not violate public policy because it did not “unfairly penalize [ ] innocent victims or unfairly expose [ ] the insured to liability.” In that case, a nonrelative permissive driver was involved in an accident in which her passenger, an insured under the policy at issue, was injured. The passenger’s husband was the named insured of the policy. Id. at 355. The policy contained an exclusion for “bodily injury to the insured.” Id. The Supreme Court held:

While presumably innocent of any wrongdoing, [the injured passenger] is not an innocent member of the motoring public in the sense of being an unsuspecting victim. As an insured she is deemed to know the contents of the policy. This includes knowledge of the exclusion. Since it was only through her permission that [someone else] was driving the car covered by the policy, [the passenger], presumably knowledgeable about the exclusion in the policy covering the car, was in a position to inquire about [the driver’s] insurance. On the other hand, neither the named insured nor any member of the household was exposed to additional liability because of the exclusion under the facts of the case. From the standpoint of the named insured, coverage of [the driver] is important only insofar as [the named insured] might be exposed to liability as owner of the car for [the driver’s] accident while driving [the named insured’s] car. It is clear that under the present facts he will suffer no such exposure.

(Citation and punctuation omitted.) Id. at 356.

In Stepho v. Allstate Ins. Co., 259 Ga. 475 (383 SE2d 887) (1989), the Supreme Court distinguished its decision in Southern Guaranty, supra, by explaining that intrafamily tort immunity existed between the husband/owner of the car and the passenger, his injured wife. Id. at 477 (1). Thus, the husband/owner of the car was not exposed to tort liability. Additionally, the injured passenger was protected based upon the availability of separate insurance coverage under the permissive driver’s policy. Id. Finally, it characterized its decision in Southern Guaranty as dealing “with a peculiar set of facts under which neither the injured party nor the insured was left unprotected.” Id. at 476 (1).

In Stepho, on the other hand, an adult was driving his minor brother when an accident occurred, injuring the minor. Id. at 475. The father, with whom the minor lived, sued his adult son, who was authorized to and was driving the father’s truck at the time of the accident. Id. Both the father and the adult son driving the truck at the time of the accident were named insureds of a policy covering the truck. Id. The Supreme Court held that based upon a lack of immunity between the brothers and a lack of protection for the injured party, an exclusion of “liability for injury to any person related by blood to the insured and residing in insured’s house” was void as against public policy to the extent of mandatory coverage. Id. at 477 a).

Similarly, in Southeastern Fidelity Ins. Co. v. Chaney, 259 Ga. 474 (381 SE2d 747) (1989), the Supreme Court voided as against public policy an exclusion of coverage for bodily injury to a named insured. Id. at 475 (5). In Chaney, the named insured was injured in her own vehicle while her adult daughter, who was also a named insured of the policy covering the vehicle, was driving. Id. at 474. The Supreme Court held that the daughter, as an emancipated adult, was exposed to liability “because the doctrine of intrafamily immunity does not apply.” Id. at 475 (3). Because the exclusion was “broader than [the] immunity under our tort system, it is against public policy and cannot be enforced.” Id. at 475 (5). The Supreme Court did not address whether the mother was an innocent member of the motoring public.

Following the Supreme Court’s trilogy in Southern Guaranty, Stepho, and Chaney, this court has consistently upheld an exclusion of coverage for an injured named insured passenger when the insured car is driven by a permissive driver who does not reside with the named insured. See Spivey v. Safeway Ins. Co., 210 Ga.App. 775, 778 (3) (437 SE2d 641) (1993); Cotton States Mut. Ins. Co. v. Coleman, 242 Ga. App. 531, 532 (530 SE2d 229) (2000); Smith v. Nationwide Mut. Ins. Co., 258 Ga. App. 570, 572 (3) (574 SE2d 627) (2002). A driver’s “claim to coverage solely on the basis of being a permissive driver does not qualify him as an insured under the policy unfairly exposed to unanticipated liability.” Spivey, supra, 210 Ga.App. at 778 (3).

In the case before us, Landrum, the named insured and injured passenger, was injured in an accident while her adult grandson was driving her car, and it is undisputed that the grandson resided with her. As the named insured, Landrum is presumed to have knowledge of the contents of her policy, and she therefore cannot void the policy exclusion on the ground that she is an innocent member of the motoring public. Southern Guaranty, supra; Spivey, supra.

Our analysis does not end here, however, because the Supreme Court has recognized that a policy exclusion should be voided to protect either an innocent victim or an insured facing unfair exposure to unanticipated liability. Stepho, supra, 259 Ga. at 476 (1). In this case, the trial court concluded in its order that Turner is not a relative insured by the policy, but instead a mere permissive driver, based upon the policy language requiring a relative to be listed on “the application or endorsed on the policy prior to a loss.” While the record before us does not include the application, we must presume that the trial court’s finding is supported by the record based upon the absence of a transcript of the summary judgment hearing. See Burt Dev. Co. v. Lee County Tax Assessors, 240 Ga.App. 451, 453 (2) (523 SE2d 81) (1999). And it is undisputed that Turner was not listed in the policy itself.

Decided November 20, 2012.

Gammon, Anderson & McFall, W. Wright Gammon, Jr., for appellants.

Thomas C. MacDiarmid, for appellee.

Based upon Turner’s status as a permissive driver, the trial court properly declined Turner’s request to void the policy exclusion. Under these particular facts and circumstances, Turner does not face unfair exposure to unanticipated liability. Spivey, supra. The essence of the arguments asserted by Turner in favor of coverage was rejected by a majority of this court in Spivey, supra. See 210 Ga. App. at 779-780 (McMurray, J., dissenting). In Spivey, a majority of this court interpreted the Supreme Court’s opinions in Southern Guaranty, Stepho, and Chaney as creating a bright line rule against voiding a policy exclusion for permissive users such as Turner. Based upon the doctrine of stare decisis and the need for predictability, certainty, and stability in the law, we decline to revisit this issue. See Stout v. Cincinnati Ins. Co., 269 Ga. 611, 613 (502 SE2d 226) (1998) (reversing Court of Appeals, in part, based upon its failure to adhere to doctrine of stare decisis).

Judgment affirmed.

Doyle, P. J., and Andrews, J., concur.

       The record before us does not include Landrum’s application.

       The author of Spivey, supra, had noted in a previous dissent that “the public policy against unfair exposure to unanticipated liability was extended under the facts of [Southern Guaranty, supra,] only to protection of the named insured or an insured member of the household of the named insured.” (Emphasis supplied.) Clabo v. Tennessee Farmers Mut. Ins. Co., 202 Ga.App. 110, 115 (413 SE2d 476) (1991), overruled by Spivey, supra, 210 Ga.App. at 778 (3).


text:
    A12A1305.
    EVANS v. THE STATE.
    (734 SE2d 527)
   DOYLE, Presiding Judge.

Following a jury trial, DeWayne Lamar Evans was convicted of possession of marijuana with the intent to distribute, possession of more than one ounce of marijuana, possession of marijuana with the intent to distribute within 1,000 feet of public housing, possession of marijuana with the intent to distribute within 1,000 feet of a state park, and possession of marijuana with the intent to distribute within 1,000 feet of a school. Evans appeals the denial of his motion for new trial, arguing that the trial court erred by denying his motion to suppress evidence following an unreasonable search and seizure. He also challenges the sufficiency of the evidence. We affirm, for the following reasons.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and the defendant no longer enjoys a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether the evidence was sufficient for a rational trier of fact to find the defendant. guilty of the charged offense beyond a reasonable doubt.

Viewed in this light, the evidence shows that in the early evening on December 2, 2010, an individual called the police and advised that Evans was leaving his girlfriend’s house and was walking down Kentucky Avenue carrying a large, gallon-sized bag of marijuana. Sergeant Gene Mathews, who was familiar with Evans and knew that he was on probation, contacted Chris Smith of the probation department and advised that Evans “was known to have a large amount of marijuana in his possession”; Smith, who was also familiar with Evans, confirmed that Evans was on active probation. While four officers and Smith were en route to Kentucky Avenue, the confidential informant called again and advised that Evans was “getting ready to get into the passenger side of a maroon-in-color Chevrolet Caprice with no hubcaps heading to his mom’s house.” Smith directed the- officers to Evans’s mother’s house — which was also Evans’s address of record on file at the probation office — on Haskell Ward Road, where they observed a maroon Chevrolet with no hubcaps in the driveway.

Mathews, who was wearing his police uniform, and Smith, who was wearing his uniform and a vest marked “probation,” approached Evans’s mother’s house in Smith’s marked probation vehicle. As the two officers exited the vehicle, Evans exited the house and walked toward the street. Smith asked Evans if they could speak with him, and Evans turned around and ran back toward the house. Smith and Mathews gave chase, and both men instructed Evans to stop, with Smith identifying himself as a probation officer; Evans failed to comply, however, and ran into the house and locked the door.

Smith banged on the door, but no one answered, so he went around to the side of the residence in an attempt to gain entry, but was unsuccessful. Mathews then removed a window air conditioning unit, and Lieutenant Keys crawled in through the window, unlocked the door, and allowed Smith and the police officers to enter. Once inside, one of the officers went into one of the home’s two bedrooms “to clear that bedroom for officer safety issues,” and police found Evans, two men, and two small children in one of the bedrooms. Mathews entered the adjoining bathroom, and a young girl in the shower noticed him and started screaming. Officer Kaylen Krueger, a female, went into the bathroom while the girl finished showering and dressing, and Krueger noticed a small amount of marijuana on the toilet seat. Lieutenant Keys then glanced into the bathroom and saw marijuana residue on the toilet and floor.

Police detained the individuals in the house, and shortly thereafter, Evans’s sister attempted to enter the residence and explained that she lived there with her mother. The sister then instructed her aunt, who lived nearby, to call her mother; the mother arrived at the house approximately 15 minutes later and signed a written consent to search the house after the police told her they saw marijuana residue in the bathroom. Mathews then went into the bathroom to collect the marijuana from the floor and noticed some floating in the toilet. Mathews attempted to collect the marijuana from the toilet, but then flushed it, at which point he saw a large chunk of marijuana come up the toilet, and the toilet began to back up. Mathews then turned off the water supply, drained the water, removed the toilet, and, using a clothes hanger, retrieved a plastic bag containing marijuana from the toilet.

Kenneth Osborne, who was one of the men present in the house when the police entered, testified that he was at the house when the police began banging on the door. According to Osborne’s written statement, Evans was in the bathroom at the time and went to the door and locked it. At trial, Osborne clarified that he did not actually see Evans in the bathroom, but instead heard him banging on the bathroom door.

The State crime lab tested the material seized by the police in the bathroom and determined that it was marijuana.

Prior to trial, Evans filed a motion to suppress on the basis that the police did not have probable cause to enter the residence. Following a hearing, the trial court verbally denied the motion, stating that notwithstanding the court’s inability to judge the reliability of the confidential informant, Evans was nevertheless subject to arrest because he refused the probation officer’s direct order, and the officers were justified in entering the house based on the exigent circumstances of Evans’s flight. Evans was thereafter convicted on all counts, and this appeal followed.

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

On review of the denial of a motion to suppress, we consider all the evidence of record, including evidence introduced at trial. Where the evidence at a hearing on a motion to suppress is uncontroverted and no question of credibility is presented, we review the trial court’s application of the law to these undisputed facts de novo. As to questions of fact and credibility, however, we construe the evidence in favor of the trial court’s findings and judgment, which must be accepted unless clearly erroneous.

“[Ejven if the trial court’s asserted ground for denying a motion to suppress is erroneous, we will affirm the ruling if it is ‘right for any reason.’ ”

“It is axiomatic that, under the Fourth Amendment, police officers are prohibited from entering a person’s home or its curtilage without a warrant absent consent or a showing of exigent circumstances.” Although “the Fourth Amendment applies to probationers as well as other citizens,” probationers may waive such rights. Here,

the State, which bears the burden of proving the legality of the search of [Evans’s residence], failed to show the existence of any law, legally authorized regulation, or sentencing order imposing any limitation on [Evans’s] Fourth Amendment right against warrantless searches of his residence at the time of the search.

Thus, given the absence of any order imposing a limitation on Evans’s Fourth Amendment rights, his status as a probationer cannot serve as the sole substitute for a search warrant, and therefore, the salient issue is whether the entry into his residence was otherwise reasonable under the Fourth Amendment.

OCGA § 42-8-38 (a) provides in relevant part:

Whenever, within the period of probation, a probation supervisor believes that a probationer under his or her supervision has violated his or her probation in a material respect... the probation supervisor ... if the circumstances warrant, may arrest the probationer without warrant, wherever found, and return the probationer to the court granting the probation or, if under supervision in a county or judicial circuit other than that of conviction, to a court of equivalent original criminal jurisdiction within the county wherein the probationer resides for purposes of supervision. . . .

Thus, although

there is nothing in Georgia law that creates a blanket authorization for warrantless searches of probationers’ homes based on less than probable cause, this statute clearly attempts to severely limit probationers’ rights against arrest, even at home without a warrant, based on less than probable cause. The statutory limitation of rights is subject only to constitutional limitations, and... the constitutional limitations themselves are affected by the statute’s existence. The statute places probationers on notice that their rights have been limited and, in turn, diminishes their expectation of privacy.

The Supreme Court of Georgia has held that “[w]ith such notice in place, a warrantless arrest is permissible at least where the arresting officer has ‘reasonable cause’ to believe the arrest is necessary to serve the legitimate ‘special needs’ of probation revocation, including the prompt protection of the public.” And when

determining if the probation supervisor had “reasonable cause” for the arrest, it is permissible to consider “the unauthenticated tip of a police officer” regardless of whether there is any evidence in the record showing whether its basis was firsthand knowledge or, if not, whether the firsthand source was reliable.

In this case, pretermitting whether the anonymous caller exhibited sufficient indicia of reliability, it is permissible to consider the unauthenticated tip of the police to the probation officer. Considering that the police had advised the probation officer that Evans had been seen carrying drugs, combined with Evans’s refusal to stop and subsequent flight when approached by the police and probation officers and the probation officer’s familiarity with Evans’s history of drug possession and flight from police and probation officers, we conclude that the probation officer had reasonable cause for Evans’s arrest. Therefore, the entry into Evans’s residence for the purpose of arresting him was permissible.

Once the officers entered the residence to arrest Evans, they were authorized

to ensure their own safety and prevent the destruction of evidence by conducting a limited search of the entire house for other occupants; they were also authorized to seize any items of contraband or evidence of a crime they found in plain view during this securing of the house.

Here, the probation and police officers observed the marijuana in the bathroom on the floor and the toilet while they were securing the house and effectuating Evans’s arrest. Thus, the trial court did not err by denying Evans’s motion to suppress.

2. Evans also contends that the evidence was insufficient to support his conviction because the other individuals in the residence also had equal access to the marijuana. This enumeration does not warrant reversal.

Possession may be either actual or constructive. Constructive possession exists where a person though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing. ... As long-as there is slight evidence of access, power, and intention to exercise control or dominion over an instrumentality, the question of fact regarding constructive possession remains within the domain of the trier of fact.

Here, the State introduced evidence that Evans lived at the residence, thereby

giv[ing] rise to a rebuttable presumption that the defendant possessed the contraband. This presumption of constructive possession arising from ownership or control of the premises can be overcome by evidence that other persons had equal access to the contraband found there.
Generally, where such a presumption is the sole circumstantial evidence inculpating the defendant, if the proof also shows that others than the accused have equal right of access and occupancy it is usually insufficient. That being said, whether the evidence of equal access is sufficient to rebut any inference of possession arising from discovery of drugs is a question properly left to the [jury].

Here, Osborne, one of the other men present in the house before the police entered, initially told police that Evans was in the bathroom while the police attempted to gain entry into the residence; at trial, Osborne testified that he never saw Evans in the bathroom but that Evans was banging on the bathroom door where the marijuana was ultimately found. Given this evidence, coupled with Evans’s flight from the police and refusal to admit them into the house, we find the evidence supporting Evans’s possession conviction sufficient.

3. Next, Evans argues that the evidence was insufficient to support his conviction for possession of marijuana with the intent to distribute because the State failed to establish Evans’s intent to distribute.

Evans relies on Vines v. State, which states that

[w]here no additional evidence of intent to distribute is offered, such as scales, drug paraphernalia, large amounts of cash, division of drugs into individual packages, or a prior conviction of possession with intent to distribute, the expert testimony is critical, and the conviction cannot be sustained without it.

Here, however, the State introduced into evidence the 60.65 grams of marijuana, as well as multiple small individual baggies found in the packaging recovered at the scene. And there was no evidence that Evans was under the influence of marijuana at the time or that it was for his personal use. Under these circumstances, “the jury was authorized to reject a hypothesis that the marijuana was for personal use, as opposed to distribution.”

4. Evans argues that the State failed to prove that he possessed marijuana with the intent to distribute within 1,000 feet of public housing, a public park, and an elementary school. We disagree.

Officer Mathews testified that he personally used a handheld global positioning system (“GPS”) unit to measure the distance between the location of the confiscated marijuana and the adjacent public housing, public park, and elementary school, and found the distances to be 115.95 feet, 248.15 feet, and 947.97 feet, respectively. This evidence was sufficient.

5. Evans further argues that the evidence was insufficient to support his conviction for possessing marijuana with the intent to distribute within 1,000 feet of a public park because there was no evidence that the park was “dedicated and set apart by the governing authority of any municipality, county, state authority[,] or the state for use as a park.”

OCGA § 16-13-32.5 (a) provides:

It shall be unlawful for any person to manufacture, distribute, dispense, or possess with intent to distribute a controlled substance or marijuana or a counterfeit substance in, on, or within 1,000 feet of any real property which has been dedicated and set apart by the governing authority of any municipality, county, state authority, or the state for use as a park, playground, recreation center, or for any other recreation purposes, unless the manufacture, distribution, or dispensing is otherwise allowed by law.

Here, Officer Mathews testified that the marijuana was recovered within 1,000 feet of Fairmont Park, which Lieutenant Keys characterized as “a public park.” Given this testimony, we find the evidence sufficient.

6. In his final enumeration, Evans argues that the evidence was insufficient to support his conviction for possessing marijuana with the intent to distribute within 1,000 feet of an elementary school. Again, we disagree.

OCGA § 16-13-32.4 (a) provides:

It shall be unlawful for any person to manufacture, distribute, dispense, or possess with intent to distribute a controlled substance or marijuana in, on, or within 1,000 feet of any real property owned by or leased to any public or private elementary school, secondary school, or school board used for elementary or secondary education.

The accusation alleged that Evans possessed with intent to distribute marijuana “within 1[,]000 feet of A. Z. Kelsey Elementary School, a school owned by Spalding County School Board and used as an elementary school.” Officer Mathews testified that the marijuana was recovered within 1,000 feet of A. Z. Kelsey Elementary. Lieutenant Keys clarified that the school was “A. Z. Kelsey Academy,” which was “an elementary school for . . . autistic kids.”

Evans argues that there was no evidence that the school was owned by Spalding County as alleged in the accusation, and thus, the State failed to prove the allegations of the accusation, resulting in a fatal variance between the accusation and the evidence at trial. This argument fails.

The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.

Here, the accusation sufficiently informed Evans that he was charged with possessing marijuana with the intent to distribute within 1,000 feet of A. Z. Kelsey, an elementary school. And there is no danger that Evans could be prosecuted again for the same offense.

Thus, the language in the [charging instrument] was sufficient to put [Evans] on notice as to the essential elements of the charged offense so as not to be taken by surprise, and [Evans] could not be prosecuted again for these offenses. Therefore, we reject any fatal variance claim and hold the evidence was sufficient to satisfy the standard set forth in Jackson v. Virginia.

Decided November 20, 2012.

William A. Adams, Jr., for appellant.

Scott L. Ballard, District Attorney, Robert W. Smith, Jr., David J. Younker, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews and Boggs, JJ., concur.

       OCGA § 16-13-30 (j) (1).

       OCGA § 16-13-30 (a).

       OCGA § 16-13-32.5 (b).

       OCGA § 16-13-32.5 (a).

       OCGA § 16-13-32.4 (a).

       (Punctuation omitted.) Stepho v. State, 312 Ga. App. 495, 496 (718 SE2d 852) (2011), citing Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       The State’s witnesses refer to the caller as a confidential informant, but there was no testimony regarding the identity of the informant or any other facts to support a determination regarding his reliability.

       There was no evidence introduced regarding the prior conviction(s) for which Evans was on probation. Smith did testify that “I’ve had contact with [Evans] tons of times in the field. We have caught him with drugs before],] and he has . . . found a way to beat the charges.”

       The probation officer was in the car with Lieutenant Keys when he received the second phone call from the informant.

       The record does not indicate how much time had elapsed between the two phone calls from the anonymous informant.

       Lieutenant Curtis Keys testified that the police did not attempt to secure a search warrant because they believed that “[b]y the time the search warrant was signed and all of that,' all the drugs would have been gone.”

       Lieutenant Keys testified, “I know DeWayne Evans’[s] past. I dealt with him and have been dealing with him now for about ten years. Every time he normally deals with the policef,] and he’s holding drugs, he always runs and tries to get rid of them.”

       Osborne testified that Evans did not leave the house and re-enter before the police began banging on the door, and the police did not kick in the air conditioning unit until after they spent 15 to 20 minutes trying to kick in the door.

       According to the crime lab witness, the total net weight of the marijuana was 60.65 grams.

       (Citations omitted.) Wilson v. State, 308 Ga.App. 383 (708 SE2d 14) (2011).

       (Punctuation omitted.) Lewis v. State, 317 Ga.App. 391, 394 (730 SE2d 757) (2012).

        State v. Pando, 284 Ga.App. 70, 72 (1) (a) (643 SE2d 342) (2007).

       (Punctuation omitted.) Jones v. State, 282 Ga. 784, 784-785 (1) (a) (653 SE2d 456) (2007), quoting Allen v. State, 258 Ga. 424, 425 (2) (369 SE2d 909) (1988), and citing Griffin v. Wisconsin, 483 U. S. 868, 873 (II) (A) (107 SC 3164, 97 LE2d 709) (1987), and Fox v. State, 272 Ga. 163, 165 (2) (527 SE2d 847) (2000).

       See Fox, 272 Ga. at 164 (1).

       (Footnote omitted; emphasis supplied.) Jones, 282 Ga. at 786 (1) (a).

       See Fox, 272 Ga. at 165 (2).

       (Emphasis in original.) Jones, 282 Ga. at 789 (1) (o).

       (Footnote omitted.) Id.

       Id. at 789-790 (1) (c).

       See id.

       See id.

       (Punctuation omitted.) Fair v. State, 284 Ga. 165, 175 (3) (d) (664 SE2d 227) (2008).

       (Citations and punctuation omitted.) Bailey v. State, 294 Ga.App. 437, 439-440 (1) (669 SE2d 453) (2008).

       (Citation and punctuation omitted.) Dickerson v. State, 312 Ga.App. 320, 321 (1) (718 SE2d 564) (2011).

       (Citation and punctuation omitted.) Martin v. State, 305 Ga.App. 764, 766 (1) (700 SE2d 871) (2010).

       296 Ga.App. 543 (675 SE2d 260) (2009).

       (Punctuation omitted.) Id. at 547 (1).

       Compare id. at 543 (officer smelled the overwhelming odor of marijuana emanating from the defendant’s vehicle).

        Jackson v. State, 314 Ga.App. 272, 275-276 (1) (c) (724 SE2d 9) (2012). See also Cooper v. State, 315 Ga.App. 773, 775-776 (2) (728 SE2d 289) (2012).

       (Punctuation omitted.) Smith v. State, 317 Ga.App. 801, 803 (1) (732 SE2d 840) (2012).

       (Punctuation omitted.) Id. at 804 (1).


text:
    A12A1354.
    WILLIAMS v. THE STATE.
    (734 SE2d 535)
   Branch, Judge.

Following a stipulated bench trial in Henry County Superior Court, Gerald M. Williams was found guilty of trafficking in cocaine. He now appeals his conviction, arguing that the court below erred in denying his motion to suppress the evidence police seized from him during a Terry pat-down of his person. Finding that the contraband at issue was seized in violation of Williams’s Fourth Amendment rights, we reverse his conviction.

Where, as here, the relevant facts are undisputed, we review the denial of the motion to suppress de novo. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994). See also Scott v. State, 316 Ga.App. 341, 341 (729 SE2d 481) (2012) (“[wjhen we review the denial of a motion to suppress, we owe no deference to the way in which the court below resolved questions of law”) (citation omitted).

The evidence in this case consisted of the testimony of the arresting officer and a video recording of the traffic stop that resulted in Williams’s arrest. This evidence shows that Williams was a passenger in a car that was stopped by a Henry County police officer for following too closely. After he pulled the car over, the officer explained to its occupants why he had initiated the traffic stop and told the driver he was going to issue him a warning, rather than a citation. At the officer’s request, the driver exited his vehicle and went to the rear of his car to speak with the officer. As the driver was exiting his vehicle, the officer spoke to Williams, asking him “Do you mind if I see your i.d.? Do you have any?” On the recording, Williams’s verbal response is unintelligible, but it is undisputed that he handed the officer his driver’s license.

The officer then spent approximately four minutes making conversation with the driver as he wrote out the warning. After he completed the warning, the officer returned to the stopped car and spoke with Williams for approximately one minute. The officer then told the driver that he needed to run a check on both men’s driver’s licenses. Before he initiated that check, however, the officer asked for and received permission to perform a Terry pat-down of the driver. After completing that pat-down, and approximately nine minutes after he began the traffic stop, the officer returned to his patrol car and contacted dispatch to request a check of the driver’s licenses belonging to the driver and Williams. The officer then exited his vehicle and asked for and received the driver’s permission to search the stopped car.

Prior to searching the car, the officer approached the passenger side, where Williams was seated, and asked him to step out of the vehicle, explaining that the driver had given his permission for a search of the automobile. Williams exited the car, but when he tried to move away from it the officer blocked his way and asked Williams “Do you mind if I pat you down?” Williams responded, “I don’t mind.” The officer proceeded with the pat-down, and felt a bulge in one of the lower-side pockets of Williams’s cargo pants. According to the officer, he had “no idea” what the bulge was, but it did not feel like a weapon.

When the officer asked Williams what he had in his pocket, Williams replied “just candy.” The officer asked, “Do you mind if I see it?” Williams responded, “yes, sir,” and he turned slightly, as if he were going to move away from the car. The officer reacted by partially closing the car door toward Williams, thereby preventing Williams’s movement, while directing Williams to “stay right there.” Then, ignoring Williams’s initial refusal to show the officer the contents of his pocket, the officer again asked Williams to open the pocket. Williams did so and removed the item, which proved to be a rolled-up, paper bag. The officer asked Williams, “Can you open it [the bag]?” and Williams gave a response that, on the recording, sounds like “I guess.” The officer asked what was in the bag, and either Williams or the driver again replied “candy.” As he asked that question, the officer removed the bag from Williams’s hand and asked Williams a second time, “Can you open it up?” Before Williams could respond, the officer asked “Do you mind if I open it [the bag]?” On the tape, Williams can be heard responding with what sounds like the word “yes,” which he argues means that “yes, he did mind” if the officer opened the bag. The officer, however, proceeded to open the bag, saw what he believed to be cocaine, and immediately placed both Williams and the driver under arrest.

On appeal, Williams asserts that the officer’s conduct that led to the discovery and seizure of the cocaine exceeded the scope of a constitutionally permissible Terry pat-down and therefore violated his Fourth Amendment rights. We agree.

This court has explained repeatedly that the narrow purpose of a Terry pat-down is to ensure the safety of the officer and others at the scene, and that its purpose is not to obtain evidence of crimes for use at trial. See, e.g., Ware v. State, 309 Ga.App. 426, 428 (710 SE2d 627) (2011); Johnson v. State, 297 Ga.App. 847, 848 (678 SE2d 539) (2009); Sudduth v. State, 288 Ga. App. 541, 542 (2) (654 SE2d 446) (2007). Any search which exceeds this constitutionally permissible purpose, therefore, is deemed “constitutionally unreasonable,” and any evidence resulting from such a search must be excluded. (Citation omitted.) State v. Jourdan, 264 Ga.App. 118, 122 (2) (589 SE2d 682) (2003). Thus, under Terry and its progeny an officer is authorized to pat down only a suspect’s “outer clothing.” Johnson, 297 Ga.App. at 848. A police officer may reach into or under a suspect’s clothing in only two instances: “(1) if he comes upon something that feels like a weapon[;] or (2) if he feels an object whose contour or mass makes its identity as contraband immediately apparent, i.e., the ‘plain feel’ doctrine.” (Punctuation and footnote omitted.) Ware, 309 Ga.App. at 428. To justify searching in or beneath a suspect’s clothing for a weapon, an officer must either detect “something which feels [reasonably] like a weapon” or he “must be able to point to specific and articulable facts which ... support a [reasonable] suspicion that the particular suspect is armed with an atypical weapon which would feel like the object felt during the pat-down.” (Citation and footnote omitted.) Jourdan, 264 Ga.App. at 122-123 (2). Similarly, under the plain-feel doctrine, an officer may intrude under a suspect’s clothing only where, “during a lawful pat-down search, an officer feels an object whose contours or mass makes it immediately identifiable as contraband,” and the officer, through his testimony, “express [es] a degree of certainty in identifying the item.” Mason v. State, 285 Ga.App. 596, 597 (647 SE2d 308) (2007).

In this case, the undisputed evidence shows that the officer could not readily identify the bulge in Williams’s pocket as either a weapon or contraband. The officer admitted unequivocally that he had “no idea” what the bulge was until he opened the paper bag and discovered the cocaine. He further stated that the object did not feel like a weapon to him, and during his testimony he never indicated that, upon feeling the object, he suspected it was contraband. Additionally, the officer testified unequivocally that at the time he conducted the pat-down, Williams presented no danger to him, and he offered no testimony indicating that he had a reasonable basis for believing that Williams might be armed with any kind of weapon. Under these circumstances, we must conclude that the officer’s conduct in requiring Williams to open up his pocket and withdraw the bag exceeded the scope of a constitutionally-permissible Terry pat-down. See Brown v. State, 293 Ga. App. 564, 566 (1) (667 SE2d 410) (2008) (reversing denial of motion to suppress cocaine housed in a cigar box and seized during a Terry pat-down where officer testified that he felt the corner of a hard object and pulled it from the defendant’s pocket based on his belief that “ ‘anything can house a weapon’ ”); Sudduth, 288 Ga.App. at 542 (reversing denial of motion to suppress methamphetamine seized during a Terry frisk, where officer testified he felt a bulge in the suspect’s pocket and removed the item “ ‘not knowing what it was, a weapon, could have been anything’ ”); Jourdan, 264 Ga. App. at 121-123 (2) (affirming grant of motion to suppress after finding that the police officer was not authorized to open cigarette box which he ordered defendant to remove from his pocket during a consensual pat-down; although the officer testified that such boxes could contain a concealed weapon, he had no reasonable belief that the defendant was armed and trying to conceal a weapon in the box).

Nor do we find that Williams consented to the search. We note that it is the State that bears the burden of proving that Williams voluntarily consented to the removal of the bag and the subsequent search thereof, and we are required to scrutinize closely any alleged consent given by a suspect to police, Johnson, 297 Ga. App. at 848, bearing in mind that “[m]ere acquiescence to the authority asserted by a police officer cannot substitute for free consent.” (Citation and footnote omitted.) Jourdan, 264 Ga.App. at 121 (1). The standard for determining consent “is that of objective reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect.” Johnson, 297 Ga.App. at 849. In other words, we must ask whether a reasonable person in Williams’s situation would have felt free to keep the bag in his pocket or otherwise terminate the encounter. Id.

Given the evidence, the State cannot meet its burden of showing that Williams voluntarily removed the bag from his pocket. The tape of the incident shows that after Williams indicated he did not want the officer to see what he had in his pocket and attempted to move away, the officer blocked Williams’s movement with both the car door and the officer’s body and directed Williams to open the pocket. When Williams began to open a pocket other than the one containing the paper bag, the officer redirected him to the pocket holding the bag by pointing to it and telling Williams, “no, this one [pocket] right here.” And although the officer does not expressly order Williams to remove the bag from his pocket and open it, both the officer’s conduct toward and verbal direction given to Williams, shown on the videotape, and the officer’s testimony at the motion to suppress hearing indicate that Williams had no choice but to produce the bag and surrender it to the officer. This evidence demonstrates that a reasonable person in Williams’s position would not have felt “free to decline the officer [’]s request [to show him the bag] or otherwise terminate the encounter.” (Citation and punctuation omitted.) Johnson, 297 Ga. App. at 849 (reversing denial of motion to suppress where State failed to prove that defendant had voluntarily consented to a search of the contents of his pocket). See also Jourdan, 264 Ga.App. at 121 (1).

For the reasons explained above, we find that the officer’s conduct that resulted in the discovery and seizure of the cocaine exceeded the scope of a permissible Terry pat-down and thereby violated Williams’s Fourth Amendment rights. Jourdan, 264 Ga. App. at 123 (2). Accordingly, the trial court erred in refusing to grant Williams’s motion to suppress the cocaine.

Judgment reversed.

Miller, P. J., and Ray, J., concur.

Decided November 20, 2012.

Douglas P. Smith, for appellant.

Tommy K. Floyd, District Attorney, Alicia C. Gant, Assistant District Attorney, for appellee.

       OCGA § 16-13-31 (a).

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

       There is a videotape of the incident in question. Further, the trial court made no factual findings.

       The officer determined that all of the information on Williams’s driver’s license was correct and, as he did with the driver, the officer questioned Williams about where the men had been and where they were going.

       While conducting the pat-down, the officer observed a pocket knife in the driver’s pants pocket. He asked the driver to remove the knife and the driver did so, giving the weapon to the officer.

       According to the officer, he had to make the request for a driver’s license check from inside the patrol car because of poor radio reception on that part of the interstate where the traffic stop occurred. This poor reception prevented the officer from transmitting and receiving information on the radio worn on his body.

       In its brief, the State contends that Williams’s response is inaudible. Resolution of this factual dispute, however, is irrelevant to our analysis. Even assuming that Williams offered no objection in response to the officer’s query, we still find he did not consent to the opening of the bag.

       Evidence presented at Williams’s trial showed that the hag contained approximately 249 grams of cocaine.

       It is notable that the officer did not testify that Williams voluntarily opened his pocket and withdrew the bag.