author:
Per curiam. DOYLE, Presiding Judge,
      Dillard, Judge,

text:
    A12A2397.
    RODRIGUEZ v. THE STATE.
    (746 SE2d 366)
   Per curiam.

After being indicted for possession of marijuana with intent to distribute, Sonia Rodriguez filed a pre-trial motion to suppress the marijuana found by police when an officer stopped the vehicle she was driving and searched the vehicle pursuant to her consent. In this interlocutory appeal from the trial court’s denial of the motion, Rodriguez claims that her consent was involuntary and the search was illegal under the Fourth Amendment because: (1) there was no valid basis for the initial vehicle stop, and (2) even if the initial stop was valid, police searched the vehicle pursuant to an impermissible expansion of the scope and duration of the stop. We find that the trial court correctly denied the motion to suppress and affirm.

A police officer stopped the vehicle driven by Rodriguez based on information provided to the officer by an automatic license plate recognition (LPR) system. The LPR system used cameras mounted on the officer’s marked police car to record images of license plates on passing vehicles, including the white Chevrolet Impala driven by Rodriguez. The LPR system transmitted an image of the Impala’s license plate to a computer which automatically compared the license plate characters to a Georgia Bureau of Investigation database of outstanding arrest warrants. As the Impala passed by the officer’s car, the LPR system alerted the officer that Enrique Sanchez, born on August 24, 1987, was wanted on an outstanding arrest warrant for failure to appear in court on citations issued to Sanchez while driving the Impala with the displayed license plate. Based on the alert showing that Sanchez was the subject of an outstanding arrest warrant and had previously driven the passing Impala, the officer radioed other officers with information about the alert and pursued and stopped the vehicle.

When the officer stopped the vehicle, he immediately ran a computer check on the license plate which showed that the vehicle was registered to Sonia Rodriguez. The officer approached the vehicle and observed that it was occupied by the driver and a front seat passenger. The officer asked for a driver’s license from the driver, who provided a license showing the name Sonia Rodriguez, and asked for identification from the passenger, who gave the name Ereka Williams and a date of birth. As he obtained this information, the officer explained that he made the stop based on information that Enrique Sanchez had been cited for violations while driving the vehicle and failed to appear in court, and Rodriguez told the officer that Sanchez was her son and that he failed to appear because he was in prison. Upon obtaining identification information from the vehicle occupants, the officer immediately ran a computer check to look for any outstanding arrest warrants on the driver and the passenger and to verify the status of the driver’s license. The computer check revealed that the passenger had an outstanding arrest warrant from the State of Florida, and showed that the passenger’s driver’s license had been suspended for a controlled substance violation. At the same time the officer received this information on the computer check, a second officer, who had received radio information on the LPR system alert, arrived at the scene approximately four minutes after the initial stop. At that point, the officers waited for verification of extradition of Williams on the Florida charge, which one of the officers stated takes “a couple of minutes.” While waiting, one officer asked for and obtained consent from Rodriguez to search the vehicle. At the same time, the other officer informed Williams about the Florida arrest warrant and asked for and obtained consent to search inside Williams’ purse located on the front passenger seat of the vehicle. When one of the officers reached into the vehicle to obtain Williams’ purse, he smelled the odor of raw marijuana in the vehicle. In the search of the vehicle pursuant to Rodriguez’s consent, the officers found marijuana in the vehicle console and trunk. Marijuana was also found in a search of Williams’ purse.

1. Rodriguez waived the claim asserted on appeal that the initial stop of the vehicle —-based solely on information provided by the LPR system — was invalid.

Rodriguez’s written amended motion to suppress evidence of the marijuana did not assert that the initial stop of her vehicle was invalid. Rather, the motion claimed only that, after the officer stopped the vehicle and the reason for the initial stop had concluded, an officer illegally obtained her consent to search the vehicle by actions beyond the scope and duration of the initial stop. Likewise, at the hearing on the amended motion to suppress, Rodriguez made the same claim asserted in the written motion and made no claim that the initial stop was invalid. At the conclusion of the hearing on the motion to suppress, the trial court gave the parties the opportunity to file post-hearing briefs and stated “we’re addressing the issue of whether the stop’s any good at all.” It is unclear whether the court was referring to whether the initial stop was valid (a claim not made by Rodriguez in the motion or at the hearing), or to the actions taken by the officers after the initial stop. In any event, after the hearing, Rodriguez filed a brief in which she argued for the first time in the trial court that the State failed to produce evidence at the hearing showing that the LPR system was reliable enough under Harper v. State, 249 Ga. 519 (292 SE2d 389) (1982) to provide a basis for the initial stop, and failed to show that the LPR system provided the officer with information sufficient to create reasonable suspicion to make the initial stop.

[E]vidence exclusion is an extreme sanction and one not favored in the law. For this reason, OCGA § 17-5-30 (b) requires a motion to suppress to be in writing and to state facts showing that the search and seizure were unlawful. On a motion to suppress, the State is entitled to proper notice of the issue raised or it will be deemed waived. In other words, the suppression motion must be sufficient to put the State on notice as to the type of search or seizure involved, which witness [es] to bring to the hearing on the motion, and the legal issues to be resolved at that hearing.

State v. Gomez, 266 Ga. App. 423, 425 (597 SE2d 509) (2004) (citations and punctuation omitted); Young v. State, 282 Ga. 735, 736-738 (653 SE2d 725) (2007). The State was plainly not given the required pre-hearing notice of claims that the initial stop was invalid because the LPR system was not reliable under Harper or because the system failed to provide the officer with reasonable suspicion. Accordingly, these claims were waived. Id.

2. Assuming the LPR system provided the officer with information sufficient to justify the initial stop pursuant to Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), as the trial court ruled, there is no basis for finding that the consent Rodriguez gave to search the vehicle was invalid as the product of an improper expansion of the scope or duration of the stop.

“Under Terry, an officer’s actions taken during a valid traffic stop must be reasonably related in scope to the circumstances which justified the stop in the first place, and limited in duration to the time reasonably necessary to accomplish the purpose of the stop.” State v. Williams, 264 Ga. App. 199, 202 (590 SE2d 151) (2003). The basis for the officer’s Terry stop of the vehicle was to investigate a reasonable suspicion that a person named Enrique Sanchez, who was wanted on an arrest warrant, was the driver or an occupant of the vehicle. When the officer approached the vehicle, he observed that both occupants of the vehicle appeared to be female. The record does not disclose whether the LPR system alert informed the officer that Enrique Sanchez was male. Even if the officer assumed, based on the name provided in the alert, that the person wanted on the warrant was probably male, and assumed based on appearance that the occupants of the vehicle were female, this did not require that the officer simply walk away from the stop without confirming the identities of all the vehicle occupants. It was reasonably within the scope of the circumstances which justified the stop for the officer to continue to investigate by seeking identification from the vehicle driver and passenger. Once the officer undertook to do so within the scope of the stop, it did not unreasonably expand the scope or the duration of the stop for the officer to conduct a computer check on the identification information for the purpose of determining whether the driver or the passenger had outstanding warrants against them. Wiliams, 264 Ga. App. at 202-203. “Even though such checks are not related to the circumstances which justified the stop, they are motivated by officer safety issues inherent in the stop.” Id. at 203.

The record shows that only four minutes after the initial vehicle stop was made the officer received computer confirmation that the passenger, Williams, was the subject of an outstanding arrest warrant from the State of Florida. While waiting “a couple of minutes” for verification of extradition of Williams on the Florida charge, an officer asked for and received permission from Rodriguez to search the vehicle. Thus, the officer’s questioning of Rodriguez concerning a consensual search of the vehicle occurred during a reasonably short prolongation of the stop for the purpose of verifying extradition on the outstanding warrant. “The Fourth Amendment is not violated when, during the course of a valid traffic stop, an officer questions the driver or occupants of a vehicle and requests consent to conduct a search.” Salmerón v. State, 280 Ga. 735, 736 (632 SE2d 645) (2006). Even though the officer’s request for consent to search was unrelated to the purpose of the stop, “[a] valid ongoing seizure is not rendered ‘unreasonable’ simply because, during its course, certain unrelated questions, which the detainee is free to decline to answer, are posed to him or her.” Id. at 738. Accordingly, the consent to search the vehicle given by Rodriguez was voluntary and not the product of an illegally expanded vehicle stop.

Judgment affirmed.

Andrews, P. J., and Barnes, P. J., concur. Boggs and Branch, JJ., concur in Division 2 and in the judgment. Ray and McMillian, JJ., concur in the judgment only. Ellington, C. J., Miller, P. J., Phipps, P. J., Doyle, P. J., and Dillard and McFadden, JJ., dissent.

DOYLE, Presiding Judge,

dissenting.

I respectfully dissent because I believe that based on the facts, the officer lacked a sufficient basis for initiating the stop. Therefore, I would reverse the trial court’s denial of Rodriguez’s motion to suppress.

At the outset, I note that the issue of the legality of the initial stop was not waived, because at the request of the trial court at the close of the suppression hearing, Rodriguez submitted a brief specifically challenging the use of the computer system to justify the initial stop. The State was invited to do the same. At the hearing, the State did call the arresting officer to the stand, and the officer testified as to his basis for initiating the stop. The issue was ruled upon by the trial court, and the State does not show how it was prejudiced by any alleged lack of notice about Rodriguez’s challenge to the investigatory stop. Therefore, we should decide the issue.

There is no dispute with respect to the facts surrounding the stop; however, it is clear from the officer’s testimony that his sole basis for initiating the investigatory stop was that he received an alert identifying Rodriguez’s vehicle. He testified explicitly that he did not attempt to take any steps to verify the information in the alert or confirm that the occupants of the vehicle matched the information given to him in the alert.

Rodriguez correctly points out the undisputed facts that she was not observed to have committed a traffic violation nor was she subject to arrest pursuant to a warrant.

In Delaware v. Prouse, [] the United States Supreme Court held that stopping a vehicle and detaining the driver to check his driver’s license and registration is unreasonable under the Fourth Amendment, unless there exists an articulable and reasonable suspicion that the driver is unlicensed, the vehicle is unregistered, or the driver [or occupant] or vehicle is otherwise subject to seizure for violation of the law. We have observed that articulable suspicion must be an objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. That determination can only be made after considering the totality of the circumstances or the whole picture. Based upon that whole picture, the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.

According to the officer’s testimony, the database system used here will alert an officer to a wanted person, regardless of whether or not the identified vehicle is registered to that person. Thus, the system will associate the wanted person with a vehicle based on the person’s one-time use of that vehicle, and the officer has no way of knowing the extent of the person’s relationship to the vehicle in question. If the officer takes no steps to further verify the alert, this results in an overbroad detention of individuals even though the flagged vehicle is not registered to a wanted person; the vehicle does not exhibit a registration or ownership problem; and the driver is otherwise operating the vehicle in full compliance with traffic laws.

This overbreadth is exemplified by the present scenario in which the wanted person was a male and the vehicle was occupied by two females. The officer specifically testified that he made the stop based on the alert in the system alone, without making any further effort to confirm the result or observe the general identity of the vehicle’s occupants, and he observed no suspicious circumstances or traffic violations by the vehicle. He explained that the system did not indicate that the vehicle was registered to the wanted person, but only “that the [wanted] individual had the warrant based off of driving ... the vehicle that that person got the citations [in] or made the violation [in] and to where they did not appear in court.” In light of this factual scenario, and in the absence of evidence that the officer made any effort to confirm the gender or general description of the driver, the tenuous relationship between vehicle and wanted person could not alone support a reasonable suspicion that the particular person stopped, Rodriguez, was subject to arrest or engaged in criminal activity.

I note the apparent similarity between this case and another, Hernandez-Lopez v. State, in which we held that an officer was authorized to stop a vehicle based on an automated license plate reader system. But in that case, the officer took an additional step to confirm that at least the gender and the general age of the person stopped matched those of the wanted person, and this additional step was an explicit part of this Court’s holding in that case. Here, by contrast, the officer explicitly testified that he took no steps to verify age or gender, and he made the stop based solely on the fact that he received an alert on the license plate reader system. Thus, the facts of this case distinguish it from cases such as Hernandez-Lopez, where the police took an extra confirmatory step, as well as those such as Humphreys v. State, where the vehicle’s registered owner (not merely someone observed driving the vehicle on one occasion) had a suspended license and the officer verified that the gender of the driver matched the owner’s before executing the stop.

This case is likewise distinct from other computer check cases in which the system on its face indicates a registration problem or a stolen vehicle. For example, in Schweitzer v. State, this Court held that a vehicle stop was authorized when a computer check indicated that the tag was issued to a different make and model vehicle. Likewise, in Thompson v. State, we concluded that a vehicle stop was authorized when an officer “randomly checked [the defendant’s] vehicle’s tag and learned that the tag on the vehicle was registered to a different vehicle.”

In contrast to those cases, the computer alert here did not on its face identify a registration violation nor did it indicate that the owner of the vehicle was subject to an active warrant. Therefore, in the absence of any observed violation or any effort to verify that the particular person stopped was subject to an active warrant, the officer here lacked authority to stop Rodriguez. Accordingly, I believe the trial court erred by denying Rodriguez’s motion to suppress.

I am authorized to state that Chief Judge Ellington, Presiding Judge Phipps, and Judge McFadden join in this dissent.

Dillard, Judge,

dissenting.

Like the per curiam, I am of the view that Rodriguez’s motion to suppress failed to provide the State with notice of all the legal issues to be resolved at the suppression hearing. Nevertheless, the trial court did, at the conclusion of that hearing, provide the parties with an opportunity to file post-hearing briefs on the validity of the stop. As such, I am not inclined to conclude that the issue of whether the initial stop of the vehicle was valid has been waived on appeal. That said, I do think Rodriguez’s failure to give the State pre-hearing notice as to the scope of the legal issues to be presented at the suppression hearing provides a justification for vacating the trial court’s decision and remanding the case for further proceedings. This course of action is especially appropriate in light of our recent decision in Hernandez-Lopez v. State, which was decided after both the trial court’s ruling and the filing of Rodriguez’s notice of appeal, and which has not been briefed (or even mentioned) by the parties on reconsideration.

Furthermore, while the per curiam and Judge Doyle have both penned thoughtful opinions, our constitutional duty to resolve this appeal today — and thus within two terms of docketing — places time constraints upon the reconsideration of this case that also warrant vacating and remanding to the trial court.

For all of the foregoing reasons, I respectfully dissent.

Decided April 12, 2013

Crawford & Boyle, Eric C. Crawford, for appellant.

Daniel J. Porter, District Attorney, Ayanna K. Sterling-Jones, Assistant District Attorney, for appellee.

       Even assuming these claims were not waived, the State showed that the LPR system provided the officer with information that the vehicle at issue had been driven by Sanchez, who was the subject of an outstanding arrest warrant issued on probable cause of prior criminal conduct. Hernandez-Lopez v. State, 319 Ga. App. 662 (738 SE2d 116) (2013). This connection between Sanchez and the vehicle was sufficient to authorize police to stop the vehicle pursuant to Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968) to investigate a reasonable suspicion that Sanchez was the driver or an occupant of the vehicle. Hernandez-Lopez, supra; see United States v. Hensley, 469 U. S. 221, 229-230 (105 SC 675, 83 LE2d 604) (1985) (reasonable suspicion of past criminal conduct justifies Terry stop; promotes public interest in identifying and promptly detaining suspects). For example, in United States v. Tellez, 11 F3d 530, 531-533 (5th Cir. 1993), police had information that a person the subject of an outstanding arrest warrant had been seen in a described vehicle. Id. This information was sufficient to authorize a subsequent Terry stop of a vehicle exactly matching that description to investigate a reasonable suspicion that the person sought on the warrant was an occupant of the vehicle. Id. The Terry stop was valid even though the person was not found in the vehicle. Id. Moreover, the test established in Harper, 249 Ga. 519, applies to determining the admissibility of expert testimony in support of novel scientific procedures offered as substantive evidence directly bearing on guilt or innocence. Id. at 523-525; Al-Amin v. State, 278 Ga. 74, 81 (597 SE2d 332) (2004). The Harper test does not apply to determine the admissibility of information generated by the LPR system offered, not as substantive evidence directly bearing on guilt or innocence, but to prove the manner in which police acquired reasonable suspicion to stop the vehicle. Al-Amin, 278 Ga. at 81.

       It is notable that the officer did not run a computer check on the license plate to determine registration until after he pulled over the vehicle. Having done that, he was informed that the vehicle was registered to Rodriguez and not the Enrique Sanchez identified in the alert.

       440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979).

       (Punctuation omitted; emphasis supplied.) Humphreys v. State, 304 Ga. App. 365, 366 (696 SE2d 400) (2010).

       Compare with Wright v. State, 272 Ga. App. 423, 427 (2) (612 SE2d 576) (2005) (holding that an officer’s observation of a “driver breaking even a relatively minor traffic law” will support a traffic stop and “a motion to suppress under the Fourth Amendment arguing that the stop was pretextual must fail.”) (punctuation omitted).

       It is notable that the officer did not run a computer check on the license plate to determine registration until after he pulled over Rodriguez. After he ran the check, he was informed that the vehicle was registered to Rodriguez and not Enrique Sanchez identified by the alert.

       See State v. Dixson, 280 Ga. App. 260, 263-264 (633 SE2d 636) (2006) (holding that police lacked reasonable suspicion when relying solely on an “unknown” status notation in the automobile insurance database, relying in part on OCGA § 40-6-10 (b)); Duke v. State, 257 Ga. App. 609 (571 SE2d 414) (2002) (suspicion must amount to more than a hunch or generalized report of suspicion).

       319 Ga. App. 662 (738 SE2d 116) (2013).

       See Hernandez-Lopez, 319 Ga. App. at 663 (1).

       Each of the cases collected in Hernandez-Lopez, 319 Ga. App. at 665 (1), n. 12 involve some additional confirmatory step taken by police (e.g., shining a light on the driver to confirm gender and race) or some other factual circumstance (e.g., facial problem with vehicle registration) giving rise to suspicion. See People v. Davila, 27 Misc. 3d 921, 901 NYS2d 787, 791 (N.Y. Sup. 2010) (suspended registration); United States v. Lurry, Case No. 09-20312-JPM-dkv, 2010 U. S. Dist. LEXIS 118456, at *15, 2010 WL 4628178, at *6 (II) (A) (W.D. Tenn. June 23, 2010) (alert indicated that the “driver of the vehicle” had a warrant and the officer verified the race and gender of the driver prior to the stop), adopted in part and rejected in part on other grounds, Case No. 2:09-cr-20312-JPM, 2010 U. S. Dist. LEXIS 118494, at *13, 2010 WL 4628129, at *5 (III) (b) (W.D. Tenn. Nov. 8,2010). For a case in which the police conceded that a database alert does not alone automatically support a vehicle stop and detailing additional steps taken by police to confirm database alerts, see Green v. City & County of San Francisco, Case No. C 10-02649 RS, 2011 U. S. Dist. LEXIS 108617, 2011 WL 4434801, at *13 (III) (A) (N.D. Cal. Sept. 23, 2011).

        Humphreys, 304 Ga. App. at 365.

       319 Ga. App. 837 (738 SE2d 669) (2013).

       289 Ga. App. 661, 661 (658 SE2d 122) (2007).

       See also Self v. State, 245 Ga. App. 270, 274 (3) (537 SE2d 723) (2000) (holding that a vehicle stop was justified when an officer testified that ‘he checked [a car’s] license tag prior to stopping it and determined that the tag belonged to a pickup truck” because “the potential violation of OCGA § 40-2-6 supported the stop of the vehicle”).

        See Young v. State, 282 Ga. 735, 736-38 (653 SE2d 725) (2007); State v. Gomez, 266 Ga. App. 423, 425 (2) (597 SE2d 509) (2004).

        See State v. Roddy, 231 Ga. App. 91, 93 (497 SE2d 653) (1998) (concluding that the circumstances of that case demanded that “a second evidentiary hearing be held,” and thus vacating the trial court’s order granting defendant’s motion to suppress and remanding the case with direction that the trial court conduct another hearing on the motion). Cf. State v. Watson, 292 Ga. App. 831, 833 (666 SE2d 90) (2008) (“Given the uncertainty regarding the basis for the ruling, we vacate the order granting Watson’s motion to suppress and remand the case to the trial court.”).

       319 Ga. App. 662 (738 SE2d 116) (2013).

        See, e.g., Kollie v. State, 301 Ga. App. 534, 547 (15) (687 SE2d 869) (2009) (vacating and remanding case for the purpose of conducting a new hearing and considering new precedent).

       Ga. Const. art. VI, § 9, ¶ 2 (“The Supreme Court and the Court of Appeals shall dispose of every case at the term for which it is entered on the court’s docket for hearing or at the next term.”).

       In referencing the time constraints placed upon the Court in this case, I am not only referring to the limited amount of time that many members of the Court had to consider the complex issues presented by this appeal, but also to the fact that our decision to adopt this new, substituted opinion precludes Rodriguez from filing a motion for reconsideration. And while I recognize that this Court has, in the past, claimed the authority to extend the term for purposes of allowing a party to file a motion for reconsideration in such circumstances, see Stuckey v. Richardson, 188 Ga. App. 147, 149 (4) (372 SE2d 458) (1988), I strongly disagree that this Court possesses the authority to do so. Our Supreme Court has this authority, but we do not. See OCGA § 15-2-4 (b); Haygood v. City of Doraville, 256 Ga. 566, 567 (350 SE2d 766) (1986).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A10A2104.
    BETHEL v. FLEMING.
    (741 SE2d 662)
    Decided April 15, 2013.

      Indermark Vaishnav, Howard W. Indermark, Benjamin D. Goldberg, for appellant.

      Leonora Grant, Matthew McCoyd, Assistant District Attorneys, for appellee.
   Miller, Judge.

In Leitch v. Fleming, 291 Ga. 669 (732 SE2d 401) (2012), the Supreme Court of Georgia reversed the judgment of this Court in Bethel v. Fleming, 310 Ga. App. 717 (713 SE2d 900) (2011). Therefore, we vacate our earlier opinion and adopt the judgment of the Supreme Court as the opinion of this Court.

Judgment reversed.

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


text:
    A13A0210.
    WALKER v. CULPEPPER.
    (742 SE2d 144)
   Miller, Judge.

Rodney Walker appeals from the trial court’s grant of summary judgment to Connie Culpepper based upon its finding that Walker was guilty of laches since he did not serve Culpepper until ten months after the statute of limitation expired. Walker contends that the trial court erred in finding that he was guilty of laches because he exercised due diligence in accomplishing service. Discerning no error, we affirm.

“[T]he determination of whether the plaintiff is guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitation is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.” (Citations and punctuation omitted.) McGhee v. Jones, 287 Ga. App. 345, 346 (652 SE2d 163) (2007).

Here, the record shows that the accident occurred on April 7, 2009, and that Walker filed his complaint on March 30, 2011. Walker unsuccessfully attempted service on April 2, 2011, and again on May 2 and 4, 2011. Walker then moved for service by publication in May 2011, claiming that Culpepper had provided a fraudulent address and was concealing herself to avoid service. Walker’s motion was accompanied by an affidavit of diligent search stating his unsuccessful attempts to serve Culpepper and that a search of two Internet websites failed to provide a known address for Culpepper. In September 2011, Walker applied for service by publication and attached an affidavit of diligent search that was identical to the affidavit filed in May 2011. In December 2011, Walker again applied for service by publication, and the attached affidavit of diligent search was the same as those filed in May and September 2011. On December 27, 2011, the trial court denied Walker’s motions to serve Culpepper by publication, finding that Walker failed to show due diligence.

Walker eventually served Culpepper in February 2012. In March 2012, Culpepper answered, raising the defense of, among other things, expiration of the statute of limitation, insufficiency of service of process, and laches. Culpepper filed a motion for summary judgment on these same grounds, and following a hearing, the trial court granted Culpepper’s motion.

On appeal, Walker contends that the trial court erred in granting summary judgment to Culpepper because the evidence shows that he was duly diligent in attempting to serve Culpepper, and that service was delayed because Culpepper deliberately evaded service. We disagree.

The mere filirfg of a complaint does not commence suit unless timely service is perfected as required by law. And when such service is not timely made, the plaintiff bears the burden of showing lack of fault. If an action is commenced within the applicable statute of limitation, but is not served upon the defendant either within five days or within the limitation period, the plaintiff must show that [he] acted in a reasonable and diligent manner in attempting to ensure that proper service was effected as quickly as possible. If he is guilty of laches in this regard, service will not relate back to the time of filing of the complaint for the purpose of tolling the statute of limitation.

Decided April 23, 2013.

Robert C. Koski, for appellant.

Laura S. Maki, for appellee.

(Citations and punctuation omitted.) Milton v. Goins, 309 Ga. App. 865, 866-867 (2) (711 SE2d 415) (2011). Summary judgment is an appropriate remedy when the issue, as in this case, concerns the expiration of the statute of limitation. Gaskins v. A. B. C. Drug Co., 183 Ga. App. 518, 520 (3) (359 SE2d 364) (1987).

Here, the evidence supports the trial court’s finding that Walker did not establish due diligence. Notably, Walker’s affidavits of diligent search show that he first attempted to serve Culpepper on April 2, 2011, five days before the expiration of the two-year statute of limitation for personal injuries. See OCGA § 9-3-33. Walker attempted to serve Culpepper at what he believed to be her last known address, but there is no explanation as to how this conclusion was reached. Walker stated that he made substantial efforts to determine Culpepper’s correct address, but he did not explain what specific efforts were undertaken. It was not until May 2, 2011, a month after his initial attempt to serve Culpepper, that Walker attempted to serve Culpepper at the address where she actually resided. Walker claims that Culpepper’s evasive actions prevented him from effecting service in May 2011, and that he tried to locate her through Internet websites. However, there are no details or dates to show continued diligence after May 2011. “The plaintiff must provide specific dates or details to show diligence and cannot rely on conclusory statements.” (Citations and punctuation omitted.) Milton, supra, 309 Ga. App. at 867 (2). Walker’s evidence shows no attempts to serve Culpepper at her residence during the period of time between May 2011 and February 2012. Consequently, the trial court did not abuse its discretion in concluding that Walker failed to establish due diligence and therefore was guilty of laches. See Milton, supra, 309 Ga. App. at 867 (2); Duffy v. Lyles, 281 Ga. App. 377, 379 (636 SE2d 91) (2006). Therefore, the trial court did not err in granting Culpepper’s motion for summary judgment.

Judgment affirmed.

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


author: PHIPPS, Presiding Judge.

text:
    A13A0394.
    FORD v. THE STATE.
    (742 SE2d 148)
    Decided April 23, 2013.

      Laila A. Kelly, Gerard B. Kleinrock, for appellant.

      Robert D. James, Jr., District Attorney, Leslie Miller-Terry, Assistant District Attorney, for appellee.
   PHIPPS, Presiding Judge.

Kwambi Ford filed a direct appeal from the trial court’s denial of his motion to dismiss his indictment based upon an alleged violation of his constitutional right to a speedy trial. The Supreme Court of Georgia has recently ruled, however, that such a claim is not directly appealable and that a defendant must follow the interlocutory appeal procedures of OCGA § 5-6-34 (b). Ford’s appeal is therefore dismissed.

Appeal dismissed.

Ellington, C. J., and Branch, J., concur.

        Sosniak v. State, 292 Ga. 35, 36 (2) (734 SE2d 362) (2012); Morris v. State, 319 Ga. App. 198 (734 SE2d 926) (2012).

       See Stevens v. State, 292 Ga. 218 (734 SE2d 743) (2012); Morris, supra.


author: Dillard, Judge.

text:
    A13A0653.
    THE STATE v. ABLE et al.
    (742 SE2d 149)
   Dillard, Judge.

The State appeals the trial court’s grant of Catherine Lindsey Able and Tyler Bridges Selph’s joint motion to suppress evidence, contending that the trial court erred by basing its decision solely on a dislike of police officers’ “knock and talk” procedures. Because we agree that the trial court erred in its basis for granting the motion to suppress, we vacate the trial court’s order and remand for reconsideration.

At the outset, we note that at a hearing on a motion to suppress, “the trial judge sits as the trier of fact.” And when this Court reviews the grant or denial of a motion to suppress, we must construe the evidence “most favorably to uphold the findings and judgment of the trial court, and that court’s findings as to disputed facts and credibility must be adopted unless clearly erroneous.” However, we owe “no deference to the trial court’s conclusions of law” and are instead “free to apply anew the legal principles to the facts.”

So viewed, the record reflects that law enforcement received an anonymous complaint that Able and other individuals were smoking marijuana in a specific Cartersville apartment. Four officers responded to the address to conduct a so-called “knock and talk” because, admittedly, they did not have a sufficient basis to request a search warrant. While the other three officers waited on a nearby flight of stairs, one officer approached the door and knocked. One or two minutes later, Able opened the door about six inches, wide enough to peer out.

After Able opened the door, the officer identified himself and indicated that he wished to come inside and speak with the occupants. The officer testified that as soon as the door opened, he could smell a strong odor of burning marijuana from within the apartment, and that after he introduced himself to Able, she stepped back from the door and indicated or motioned for him to enter.

Once inside the apartment, the officer observed three other individuals in the apartment’s living room and instructed his colleagues to collect identification from them. When one of the individuals inquired as to what was happening, the officer responded that “it was pretty obvious that [the officers] smelled marijuana.” Able then motioned toward the coffee table and told the officer that it contained marijuana, at which point the officer noticed the contents of an open drawer: a cellophane bag holding marijuana, a metallic grinder containing marijuana, and an ashtray with remnants of burnt marijuana. As a result of the foregoing, all four occupants of the apartment were arrested and searched, during which officers found additional marijuana and digital scales on Selph’s person.

Thereafter, Able and Selph were indicted for possession of less than one ounce of marijuana, and shared defense counsel. They then filed a joint motion to suppress the evidence discovered as a result of the knock and talk, contending that it was an illegal search and seizure under the Fourth Amendment of the United States Constitution. And at the motion-to-suppress hearing, defense counsel argued that the officers lacked the necessary consent to enter the residence.

The trial court granted the motion to suppress, but made no findings of fact or conclusions of law — either in its written order or in the hearing transcript — as to whether law enforcement received consent to enter the apartment. Instead, the hearing transcript contains nearly four pages in which the trial court expounds upon its general dislike for knock-and-talk procedures, including the following:

[The testifying law enforcement officer] will tell you, as a drug prosecutor, there was one thing in this world that I hated. . . . Knock and talk. I do not like knock and talks because knock and talks encroach upon the very essence of why the Fourth Amendment exists and that is, encroaching upon a person’s doorstep with evidence ... less than able to get you a search warrant .... What kind of society do we become when we can be encroached upon on our front doorstep simply because someone anonymously calls a police officer and doesn’t bother to leave a name or a number of any kind of verifiable evidence of where their knowledge comes from. That’s why I don’t like knock and talks because, most of the time, they’re not built upon anything that is really verifiable. . . . And I taught this to [law enforcement] when I was a drug prosecutor; I don’t like knock and talks; I think they’re dangerous; I think they set up a bad public policy____

The only conclusion we can draw from the foregoing commentary (and from an otherwise silent appellate record) is that the trial court granted the motion to suppress simply because the officers conducted a knock-and-talk investigation based upon an anonymous third-party tip. Indeed, the trial court explained that because the facts involved “basically people inside a house [sic] with no appearance of any impropriety on the outside of this apartment,” he did not believe the procedure was proper and that “doing something like this in this situation[ ] sets a bad precedent.”

The State contends on appeal that the trial court erred in granting the motion to suppress based on its general dislike for knock-and-talk procedures and in concluding that the officers did not have the right to use such procedures. We agree.

Although the trial court forcefully expressed its disdain for knock-and-talk procedures, such measures are unquestionably constitutional — as the Supreme Court of the United States recently reaffirmed. Indeed, despite the trial court’s obvious discomfort with the anonymous nature of the tip that led law enforcement to Abie’s doorstep, “knocking on the outer door of a residence for the purpose of investigating a reported crime is not violative of the Fourth Amendment.” This is true even when the information is provided by an anonymous tipster. Instead, the trial court’s proper focus should have been on whether Able gave valid and voluntary consent for the officers to enter the apartment.

Decided April 24, 2013.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Rosemary M. Greene, Assistant District Attorneys, for appellant.

White, Choate & Watkins, Harry B. White, for appellees.

Suffice it to say, it is not the role of a judge to “interpret” constitutional or statutory provisions through the prism of his or her own personal policy preferences. A judge is charged with interpreting the law in accordance with the original and/or plain meaning of the text at issue (and all that the text fairly implies), as well as with faithfully following the precedents established by higher courts. And in failing to adhere to these constraints, the trial court clearly erred.

Accordingly, we vacate the trial court’s order granting the motion to suppress and remand the case for the trial court to consider whether Able consented to the officers’ entry into the apartment after the initial encounter.

Judgment vacated and case remanded.

Andrews, P. J., and McMillian, J., concur.

        State v. Hamby, 317 Ga. App. 480, 481 (731 SE2d 374) (2012).

       Id.

        Martin v. State, 316 Ga. App. 220, 220 (729 SE2d 437) (2012) (punctuation omitted).

       The Fourth Amendment provides in relevant part that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U. S. Const. amend. IV.

       The following constitutes the entirety of the trial court’s order granting the defendants’ motion to suppress:
      This matter having come on for hearing on August 21, 2012 on Defendant’s [sic] Motion to Suppress, and the Court having received the evidence and testimony of the parties, it is hereby ORDERED as follows:
      Defendants’ Motion to Suppress is GRANTED.
      It is hereby ORDERED that any evidence obtained by virtue of the search and seizure in this matter is suppressed. The District Attorney, his agents, police officers and other witnesses called by the State to testify against the Defendants in the above case are hereby be [sic] enjoined and restrained from mentioning, alluding to, identifying, or otherwise calling the attention to the jury of the existence of said contraband.
      So Ordered, this 10th day of September, 2012.

        See Florida v. Jardines, _ U. S. _ (II) (B) (133 SCt 1409, 185 LE2d 495) (2013) (“Thus, a police officer not armed with a warrant may approach a home and knock, precisely because that is no more than any private citizen might do.” (citation and punctuation omitted)); see also Kentucky v. King, _ U. S. _ (III) (D) (131 SCt 1849, 179 LE2d 865) (2011) (“When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak.”); Walker v. State, 314 Ga. App. 67, 70-71 n.3 (722 SE2d 887) (2012) (“The deputy was entitled to approach the apartment, knock on the door, speak with the occupants at the doorway, and request identification even if he did not have reasonable suspicion at that point, given that these actions did not go beyond a first-tier consensual encounter.”); Galindo-Eriza v. State, 306 Ga. App. 19, 22 (1) (701 SE2d 516) (2010) (officer’s attempt to conduct “knock and talk” at residence constituted permissible first-tier encounter); State v. Ealum, 283 Ga. App. 799, 801 n.2 (643 SE2d 262) (2007) (officers were legally entitled to approach home and speak with occupant at front steps, given that the officers “were merely taking the same route as would any guest or other caller” (punctuation omitted)); Pickens v. State, 225 Ga. App. 792, 793-94 (1) (a) (484 SE2d 731) (1997) (police officer did not need articulable suspicion to knock on hotel room door and ask occupant for identification).

        Bryan v. State, 271 Ga. App. 60, 63 (2) (608 SE2d 648) (2004) (punctuation omitted); see State v. Schwartz, 261 Ga. App. 742, 744 (1) (583 SE2d 573) (2003) (“Undoubtedly, an officer may knock on the outside door of a home without implicating the Fourth Amendment.”); Strozier v. State, 244 Ga. App. 514, 515 (535 SE2d 847) (2000) (“[W]hen a police officer enters private property only to the extent of knocking on outer doors, the Fourth Amendment is not violated. After all, such an officer is merely taking the same route as would any guest or other caller.” (punctuation omitted)); see also Galindo-Eriza, 306 Ga. App. at 22 (1) (“[T]he evidence supports a finding that the police officers’ attempt to initially conduct a ‘knock and talk’ at the Norcross residence constituted a permissible first-tier encounter.”).

        Pickens, 225 Ga. App. at 793 (1) (a) (holding that, despite complaint that information from anonymous tipster lacked sufficient “indicia of reliability” to justify approaching defendant’s motel room, law enforcement’s approach to defendant’s residence did not implicate the Fourth Amendment because there was no “stop”).

        See Brown v. State, 261 Ga. App. 351, 353 (1) (582 SE2d 516) (2003) (“To justify a warrantless search on the grounds of consent, the State must prove the consent was voluntary under the totality of the circumstances.”); Buckholts v. State, 247 Ga. App. 697, 699 (2) (545 SE2d 99) (2001) (“Generally, a search based on voluntary consent eliminates the need for a search warrant or probable cause.”); see also State v. Pando, 284 Ga. App. 70, 72 (1) (a) (643 SE2d 342) (2007) (upholding trial court’s grant of motion to suppress when, inter alia, State failed to show that homeowner gave consent for law enforcement to enter during “knock and talk” procedure); Pledger v. State, 257 Ga. App. 794, 798 (572 SE2d 348) (2002) (holding that State failed to carry burden of showing that law enforcement had lawful consent to be in home).

        See Osborn v. Bank of the U. S., 22 U. S. 738, 866 (6 LE 204) (1824) (Marshall, C. J.) (“Judicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law.”).

        See Hendry v. Hendry, 292 Ga. 1, 2-3 (734 SE2d 46) (2012) (explaining that “[w]hen we consider the meaning of a statute, we look first to the text of the statute, and if the text is clear and unambiguous, we look no further, attributing to the statute its plain meaning,” and that “as we look to the words of a statute, we attribute to those words their ordinary, logical, and common meanings, unless a clear indication of some other meaning appears” (citations and punctuation omitted)); State v. Smith, 308 Ga. App. 345, 352 (1) (707 SE2d 560) (2011) (“[T]he doctrine of stare decisis prohibits this Court from ignoring the valid precedent of a higher court.”).

        See Pollard v. State, 265 Ga. App. 749, 751 (2) (595 SE2d 574) (2004) (“Whether consent was voluntarily given generally is a question of fact for the trial court. The trial court should consider the totality of the circumstances ...” (footnote omitted)).


author: McFadden, Judge.

text:
    A13A0097.
    TOLBERT v. THE STATE.
    (742 SE2d 152)
   McFadden, Judge.

A jury convicted Don Thomas Tolbert of various counts of child molestation, aggravated child molestation, enticing a child for indecent purposes, and aggravated sodomy, and the trial court denied Tolbert’s motion for new trial. On appeal, Tolbert argues that the trial court erred when, at two points during the trial, it held a bench conference outside of Tolbert’s presence and then closed the courtroom for a portion of the trial. As detailed below, to the extent Tolbert claims as error the two courtroom closures, we find that he has waived appellate review of those claims by acquiescing to one of the two closures and failing to timely object to the other. We further find that the trial court did not err in holding the bench conferences outside of Tolbert’s presence, because the discussions at those conferences did not implicate his constitutional right to be present at critical stages of the proceedings. Accordingly, we affirm.

1. Closing the courtroom.

The trial court closed the courtroom twice during Tolbert’s trial. The first instance occurred during the publication of video recordings of the two minor victims’ statements to a forensic interviewer and the interviewer’s testimony about those statements. The second instance occurred during the live testimony of the two victims, who were ages six and ten when they testified. Both victims testified that Tolbert had committed sexual offenses against them.

OCGA § 17-8-54 provides:

In the trial of any criminal case, when any person under the age of 16 is testifying concerning any sex offense, the court shall clear the courtroom of all persons except parties to the cause and their immediate families or guardians, attorneys and their secretaries, officers of the court, jurors, newspaper reporters or broadcasters, and court reporters.

This Code section is “based upon a legislative determination that there is a compelling state interest in protecting children while they are testifying concerning a sex offense.” (Citation omitted.) Hunt v. State, 268 Ga. App. 568, 571 (1) (602 SE2d 312) (2004). The partial closure of the courtroom permitted under this Code section does not violate a defendant’s constitutional right to a public trial. See Clark v. State, 309 Ga. App. 749, 751 (2) (711 SE2d 339) (2011); Goldstein v. State, 283 Ga. App. 1, 3-4 (2) (640 SE2d 599) (2006).

By its terms, OCGA § 17-8-54 authorized the trial court to clear the courtroom while the two minor victims testified. To the extent the trial court improperly required persons excepted from OCGA § 17-8-54 to leave the courtroom as well, Tolbert waived appellate review of their exclusion by not objecting to it at trial. Delgado v. State, 287 Ga. App. 273, 279 (2) (651 SE2d 201) (2007); Hunt, 268 Ga. App. at 571 (1).

In contrast, OCGA § 17-8-54 did not authorize the trial court to clear the courtroom while recordings of interviews with the victims were published to the jury, or during the testimony of the forensic interviewer. But the record shows that Tolbert’s counsel had a role in eliciting the trial court’s decision to clear the courtroom at that point in the trial. Immediately before closing the courtroom, the trial court held a bench conference with Tolbert’s counsel and the prosecutor at which the following exchange occurred:

[Prosecutor]: [The forensic interviewer] is the next witness, and we’re going to play the videos. And I wanted to clear the courtroom for the playing of the videos. And I’ve already discussed it with [Tolbert’s counsel], and he agrees. I just didn’t know if you wanted to do it before [the witness] took the stand or if you want to wait until we begin the videos. I’ll do it —
The Court: Which way do you want to do it?
[Prosecutor]: I think I’d rather just go ahead and do it so there won’t be a disruption.
[Tolbert’s Counsel]: I’d like to get them out of here first.

(Emphasis supplied.) “Aparty may not complain on appeal of a ruling that he contributed to or acquiesced in by his own action, trial strategy, or conduct.” (Citation omitted.) Holcomb v. State, 268 Ga. 100, 103 (2) (485 SE2d 192) (1997).

2. Exclusion from bench conferences.

The record shows that Tolbert was not present at the bench during the bench conferences that immediately preceded the two courtroom closures. He argues that his absence from these two bench conferences violated his constitutional right to be present at all critical stages of his trial. We disagree.

“[T]he Georgia Constitution guarantees criminal defendants the right to be present, and see and hear, all the proceedings which are had against him on the trial before the Court.” (Citations and punctuation omitted.) Zamora v. State, 291 Ga. 512, 517-518 (7) (b) (731 SE2d 658) (2012).

This right exists where there is a reasonably substantial relation to the fullness of opportunity to defend against the charge and to the extent that a fair and just hearing would be thwarted by the defendant’s absence. [Our Supreme Court has] previously held that the constitutional right to be present is not violated when the defendant’s absence occurs during conferences addressing legal matters to which the defendant cannot make a meaningful contribution.

(Citations and punctuation omitted.) Campbell v. State, 292 Ga. 766, 770 (4) (740 SE2d 115) (2013). See also Parks v. State, 275 Ga. 320, 322-323 (3) (565 SE2d 447) (2002).

Neither of the bench conferences at issue in this case implicated Tolbert’s constitutional right to be present. Rather, the discussions at the conferences addressed either legal issues or courtroom logistics, neither to which Tolbert could have made a meaningful contribution. At the first bench conference, set forth above, counsel merely informed the trial court of their agreement to close the courtroom for the playing of the victims’ recorded statements and the forensic interviewer’s testimony regarding those statements, and they discussed with the court the logistics of implementing that agreement. Much of the second bench conference also concerned logistical issues, namely whether one of the minor victims could sit on an adult’s lap while testifying (the trial court ruled she could not) and the timing of the minor victims’ testimony with a lunch break. Tolbert has not offered any argument for how his presence during these discussions could have made a meaningful contribution to them. Specifically regarding his counsel’s agreement to the courtroom closure, Tolbert has not suggested that his counsel was acting outside the bounds of his authority or that he would have countermanded his counsel had he been present when counsel expressed that agreement to the trial court. And he was present when the trial court closed the courtroom immediately after this conference, providing him with “some knowledge of the topic of [the] conference.” Parks, 275 Ga. at 325 (3). Given that Tolbert could not have made a meaningful contribution to the discussions about counsel’s agreement to close the courtroom and other matters of courtroom logistics, his right to be present was not violated by his absence from those discussions. See Barrett v. State, 275 Ga. 669, 671 (4) (571 SE2d 803) (2002) (although defendant was absent from a bench conference at which his counsel agreed to allow the jury to leave for the evening and return to deliberations the following morning, the defendant’s right to be present was not violated because he could not have made a meaningful contribution to the bench conference and he was present when the trial court instructed the jury following the conference).

Decided April 25, 2013

Cook & Connelly, Bobby Lee Cook, C. Sutton Connelly, for appellant.

Leigh E. Patterson, District Attorney, Natalee L. Staats, Assistant District Attorney, for appellee.

The second bench conference also addressed the closure of the courtroom during the victims’ testimony. The only discussion on this issue was the prosecutor’s statement: “The next two witnesses are the little girls. I’m going to ask that the courtroom be cleared for that.” (Counsel and the trial court then proceeded to discuss the other matters detailed above.) The propriety of closing the courtroom for the minor victims’ testimony was a legal matter, in that it was authorized by OCGA § 17-8-54.

Since there was not a reasonably substantial relationship between [Tolbert’s] presence during the discussion of [this] legal matter [ ] and his opportunity to defend against the charges, we conclude that his right to be present during critical stages of his criminal trial was not violated.

(Citations omitted.) Campbell, 292 Ga. at 770 (4). Accord Parks, 275 Ga. at 325 (3) (defendant’s right to be present was not violated by his absence from bench conferences discussing legal matters where no witnesses discussed their testimony).

Judgment affirmed.

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


text:
    A13A0595.
    WARE v. THE STATE.
    (742 SE2d 156)
   Miller, Judge.

Following a jury trial, Gregory Ware was convicted of burglary (OCGA § 16-7-1 (a) (2006)). Ware filed a motion for new trial, which the trial court denied. On appeal, Ware contends that the trial court erred in striking a potential juror for cause and in failing to remove another juror for cause. Ware also contends that his trial counsel provided ineffective assistance. We discern no error and affirm.

Viewed in the light most favorable to the verdict, the trial evidence shows that on the afternoon of October 16,2006, the victim’s neighbor saw a black male who was wearing a blue and black coat removing the screen to the victim’s apartment window. The black male then entered the victim’s apartment. A short time later, another neighbor saw the same black male and two other individuals exiting the victim’s apartment with a duffle bag and other items. The second neighbor informed the apartment manager of the break-in and asked the manager to notify the victim. When the victim returned home, he noticed several items missing from his apartment and called the police.

Upon arrival, the police officer interviewed the victim and received a list of stolen items. After the officer interviewed the victim, the second neighbor informed the officer that he had just seen the black male who entered the victim’s apartment at a nearby intersection. The officer and the neighbor drove to the location, and the neighbor identified the black male and one of his accomplices. The officer detained the black male —• Ware — and his accomplice.

Ware’s accomplice asked the officer to secure their hotel room, and the officer agreed to do so. When the officer arrived at the hotel room, the door was wide open, and he saw the items that the victim described as having been stolen from his apartment. The officer secured the stolen items, placed Ware into his patrol vehicle, and returned to the scene of the offense. When Ware returned to the scene with the officer, the first neighbor identified Ware as fitting the description of the individual she saw climbing through the victim’s apartment window.

1. Ware contends that the trial court erred in granting the State’s motion to strike a potential juror for cause. We disagree.

Whether to strike a juror for cause is within the sound discretion of the trial court. And inasmuch as the trial court’s conclusion on bias is based on findings of demeanor and credibility, which are peculiarly within the trial court’s province, those findings are to be given deference.

(Citations and punctuation omitted.) Wolfe v. State, 273 Ga. 670, 672 (2) (544 SE2d 148) (2001).

During voir dire, the potential juror stated that he had problems with the court system, it would be “tough” to be impartial, and he might end up helping Ware. The potential juror had been arrested several times, served time in jail, and believed that he had been jailed without reason. The trial court excused the juror based on the juror’s mannerisms and demeanor. Ware argues that the trial court erred in doing so because the trial court did not excuse the juror based upon his bias, and there was no indication that the juror’s bias was so fixed and definite that it could not be set aside in this case. Even if the trial court erred, however, Ware had “no vested interest in having any particular juror to serve; he [was] entitled only to a legal and impartial jury. The erroneous allowing of a challenge for cause affords no ground of complaint if a competent and unbiased jury is finally selected.” (Punctuation and footnote omitted.) Felton v. State, 270 Ga. App. 449, 451 (1) (606 SE2d 649) (2004); see also Humphreys v. State, 287 Ga. 63, 71 (4) (694 SE2d 316) (2010). Ware has not demonstrated that the jurors selected to decide his case were incompetent or biased. Therefore, his claim affords no basis for reversal. See Bryant v. State, 288 Ga. 876, 881-882 (4) (e) (708 SE2d 362) (2011); Humphreys, supra, 287 Ga. at 71 (4).

2. Ware contends the trial court abused its discretion in failing to remove a juror who, after the trial had started, informed the court that she was certain that she had seen Ware before in the area of town where he was arrested. We do not agree.

Upon questioning, the juror stated that she had never seen Ware do anything illegal, did not have any reason to suspect that he committed a crime, and believed she could be fair and impartial. The juror also stated that she had not spoken to the other jurors about recognizing Ware, and the trial court instructed her not to discuss it with the other jurors during the trial. Ware, through counsel, stated that he was satisfied with the juror’s response and did not request that this juror be struck for cause. As a result, Ware has waived any challenge to the juror remaining on the jury and we cannot consider it on appeal. See Phillips v. State, 275 Ga. 595, 596 (2) (571 SE2d 361) (2002); Ashford v. State, 271 Ga. 148, 149 (2) (518 SE2d 420) (1999). However, to the extent that Ware raises his failure to strike the juror as a ground for his ineffective assistance of counsel claim, we address the merits of this claim in Division 3 below.

3. Ware contends that trial counsel was ineffective for failing to strike the juror who recognized Ware. We disagree.

Trial counsel’s decisions about which jurors to strike and which to keep are tactical. And counsel’s decisions on matters of tactic and strategy, even if unwise, do not amount to ineffective assistance of counsel. Indeed, tactical decisions by counsel will not form the basis for an ineffective assistance claim unless the decisions are so patently unreasonable that no competent attorney would have chosen them.

(Punctuation and footnotes omitted.) Vega v. State, 285 Ga. App. 405, 407 (2) (a) (646 SE2d 501) (2007).

Here, the juror stated that although she recognized Ware, her decision would be based on the evidence at trial, and that she would be fair and impartial. The juror did not display a definite and fixed opinion regarding the guilt or innocence of defendant, nor did she indicate an inability or unwillingness to listen to the evidence, apply the law, or deliberate with fellow jurors to reach a verdict. Although trial counsel testified at the motion for new trial hearing that he wished he would have asked to replace the juror, the reasonableness of counsel’s conduct is viewed as of the time of trial and under the circumstances of the case. Phillips v. State, 277 Ga. 161, 162 (a) (587 SE2d 45) (2003). Considered from the circumstances known at the time, trial counsel was authorized to conclude that the juror was not disqualified on account of bias. Ware has not shown that an effort to strike the juror would have been successful; therefore, trial counsel was not deficient for failing to move to strike the juror. See id.; Matiatos v. State, 301 Ga. App. 573, 575-576 (2) (a) (688 SE2d 385) (2009).

Decided April 25, 2013.

Dell Jackson, for appellant.

Paul L. Howard, Jr., District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A13A0690.
    GAITHER v. THE STATE.
    (742 SE2d 158)
   Miller, Judge.

Russell Gaither was tried by a jury and convicted of burglary. On appeal, he claims that the evidence was insufficient to support his conviction, the trial court erred by instructing the jury on prior consistent statements, and his trial counsel rendered ineffective assistance. Finding no merit in Gaither’s claims, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and does not weigh the evidence or determine witness credibility.

(Citations omitted.) Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

Viewed in that light, the evidence shows that on May 14, 2008, Thurmond Conner was doing remodeling work on a family member’s house located on Gratis Road. He had a container in front of the house for trash from the remodeling work. A blue-gray Chevrolet Celebrity with two men in it stopped at the house and asked Conner if there was any scrap wire or copper in the container that they could have, and he said there was not. At 6:00 p.m., Conner locked all the doors, put everything inside the house, and left for the day. When he returned to the house at 8:00 the next morning, Conner noticed that a small window in the back door was broken and that all of his tools were gone. One of the missing items was a Homelite brand chainsaw with a short blade. Other items that Conner noticed were missing included parts of aluminum window frames, copper fixtures from the tub, sink fixtures from the bathroom, the kitchen faucet, and the copper line from under the sink. The house was unoccupied at the time of the burglary.

As soon as he realized what had happened, Conner called Hariette Brooks, the owner of the Gratis Road residence, and told her about the burglary. She called 911 and the sheriff’s office. When Brooks arrived at the residence, she realized she was missing a weed eater, lawn mower, paint, bathroom fixtures, and a towel with the words “Hang Ten” on it.

Brett Davis of the City of Monroe police department responded to the 911 call at the Gratis Road residence. Once he arrived, he realized that the house was located in the county and requested that a sheriff’s deputy come and handle the case. While he was waiting for the deputy to arrive, Davis spoke to Brooks and Conner about the items that had been taken. As Conner was describing the men who had stopped by the day before, Davis recalled that he had seen Gaither in a bluish-gray car that same day less than a mile from the Gratis Road residence. When the county deputy arrived, Davis told him that he would look for the missing items inside the city limits and left.

Shortly after leaving the Gratis Road residence, Davis saw Gaither walking down the street, holding a chainsaw with a short blade. As Davis got out of his car, Gaither turned to walk away, and Davis detained him. Davis contacted the sheriff’s deputies, and they asked him to transport Gaither and the chainsaw to the Gratis Road residence. Conner immediately recognized the chainsaw as his. Conner was not able to identify Gaither as one of the men who had been to the Gratis Road residence the day before because the passenger was wearing a hat and sunglasses and never left the car and the height and weight of the driver did not “quite match up” with the person he saw sitting in the back of Davis’s patrol car.

The operator of Monroe Pawn testified that shortly after 9:00 a.m. on May 15,2008, Gaither came into his store and tried to sell him a Homelite brand chainsaw for $10. The pawn shop operator did not buy the saw.

A detective with the Walton County sheriffs office investigated the burglary at the Gratis Road residence. He interviewed Gaither as part of his investigation, and the interview was recorded and played for the jury. When Gaither was picked up prior to the interview, he had a pair of gloves and a beach towel with the words “Hang Ten” on it. After being advised of his Miranda rights, Gaither stated that he found the chainsaw on the side of the road near an elementary school with some other items, including a dresser, chairs, vacuum cleaner and paint. He admitted that he had taken the saw to a pawn shop, but only after being confronted with the fact. He said that he found the towel where he found the chainsaw. After the interview and on the way to the booking area, Gaither told the detective, “you can’t charge me with burglary because you didn’t catch me at the house.”

A couple of weeks later, Conner’s tools were discovered in a densely wooded area near the Gratis Road residence. Brooks found some of the items taken from her house in the wooded area too, but did not recover the copper piping or fixtures.

The State also introduced evidence of a similar transaction from 2005. Gaither was seen outside of an unoccupied house with furniture under his arm. The homeowner’s father saw Gaither and saw antique tables from the house in a yellow car parked in the driveway. When the homeowner’s father told Gaither that he was stealing from his son’s house, Gaither responded that the stuff was just sitting outside the house. He then left quickly in the yellow car. Davis testified that he interviewed Gaither after the 2005 incident and that Gaither admitted that he had entered the house and removed a cedar chest.

Gaither’s sister testified on his behalf and stated that Gaither was visiting her the day before he was arrested. She said that he arrived at her house before dark, stayed all night, and was still there at approximately 10:00 the next morning.

Gaither also introduced evidence from a sergeant with the Walton County sheriff’s office. He was qualified as an expert in fingerprint comparison and investigation and testified that he was called to the Gratis Road residence on May 15 to collect evidence. He found fingerprints on the inside of the bathroom window and compared them to Gaither’s fingerprints, but determined that they did not match. The sergeant confirmed that a person wearing gloves would not leave fingerprints.

1. Gaither contends that the evidence was insufficient to prove that he committed the offense of burglary. He argues that the State failed to prove unlawful entry and that guilt cannot be inferred from mere possession of stolen goods.

A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another or any building, vehicle, railroad car, watercraft, or other such structure designed for use as the dwelling of another. . . .

OCGA § 16-7-1 (2008).

Although there is still validity to the long-established rule that proof of recent, unexplained possession of stolen goods by the defendant is sufficient to create an inference that the defendant is guilty of the burglary of the goods, proof of recent, unexplained possession is not automatically sufficient to support a conviction for burglary.

Bankston v. State, 251 Ga. 730 (309 SE2d 369) (1983). If the unexplained possession of stolen goods is the only evidence supporting the conviction, “such evidence must establish the offense beyond a reasonable doubt in order to be sufficient to support the conviction.” (Citation omitted.) Id. at 731. Otherwise, recent possession of stolen goods will be “viewed as probative evidence of the crime . . . and reviewed along with the other evidence in the case to determine whether any rational juror could find the defendant guilty beyond a reasonable doubt.” (Citation and punctuation omitted.) Id.

Gaither was found with a chainsaw and towel stolen from the Gratis Road residence the same day that the items were discovered missing, within a mile of the residence. He had tried to pawn the chainsaw that same morning. Whether his explanation that he found the items on the side of the road next to an elementary school was satisfactory or reasonable was for the jury to decide. Mays v. State, 306 Ga. App. 507, 510 (1) (a) (703 SE2d 21) (2010). The evidence also included similar criminal acts and the fact that other items stolen from the residence were found in a nearby wooded area and had not been moved after Gaither’s arrest.

To support the verdict, circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. Viewing the evidence of this case in a light most favorable to the verdict, we conclude that the jury rationally could have found the evidence excluded every reasonable hypothesis except that of [Gaither’] s guilt.

(Citation and punctuation omitted.) Slater v. State, 209 Ga. App. 723, 724 (1) (434 SE2d 547) (1993).

2. Gaither contends that the trial court erred by charging the jury on prior consistent statements.

Gaither’s trial attorney submitted the charge on prior consistent statements and did not withdraw it or object to any portion of the trial court’s charge. Gaither therefore failed to preserve this objection for appellate review and is entitled to reversal only if the jury instruction constituted “plain error.” OCGA § 17-8-58 (b); State v. Kelly, 290 Ga. 29, 31-32 (1) (718 SE2d 232) (2011). To constitute plain error,

[f]irst, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

(Citation and punctuation omitted.) Kelly, supra, 290 Ga. at 33 (2) (a).

The trial court gave the following instruction on prior consistent statements:

Should you find that any witness has made a statement prior to trial of this case that is consistent with that witness’ testimony from the witness stand and such prior consistent statement is material to the case and the witness’ testimony, then you are authorized to consider the other statement as substantive evidence.

Gaither initially takes the position that no prior consistent statements were admitted, but then argues that the charge affected his rights because it could have led to jury confusion about whether any prior consistent statement should have been given more weight. The Supreme Court of Georgia has specifically held, however, that this “pattern jury instruction does not explicitly direct the jury to place any additional weight on prior consistent statements beyond that which the law already gives them, which is why it will usually be harmless.” Stephens v. State, 289 Ga. 758, 760 (1) (b) (716 SE2d 154) (2011). Even if the giving of this instruction on prior consistent statements was error, it did not constitute plain error because it did not affect the outcome of the trial court proceedings. See Kelly, supra, 290 Ga. at 33 (2) (a); see also Johnson v. State, 289 Ga. 106, 110 (5) (709 SE2d 768) (2011) (Even assuming that no prior consistent statements were admitted, “the trial court was merely telling the jurors a legal truism, as they may consider all of the words they hear as substantive evidence, unless the trial court tells them to disregard those words or cautions that the testimony is admitted only for a limited purpose. Thus, the challenged instruction could not have had any effect on the proceedings. . . .”) (citations and punctuation omitted).

3. Gaither contends that his trial counsel was ineffective for failing to withdraw her request for the prior consistent statement instruction and for failing to object to the instruction when it was given at the State’s request. He also contends that his trial counsel was ineffective for failing to object to irrelevant testimony from Davis.

The two-prong test for determining the validity of a claim of ineffectiveness of counsel provided in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency. If the defendant cannot satisfy either of the two prongs of the Strickland test, his ineffective assistance claim fails.

(Citation and punctuation omitted.) Philpot v. State, 311 Ga. App. 486, 488-489 (3) (716 SE2d 551) (2011). On appeal of an ineffective assistance claim, “we accept the trial court’s factual findings and credibility determinations unless they are clearly erroneous, while we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Id.

(a) At the motion for new trial hearing, Gaither’s trial counsel testified that it was an oversight not to withdraw the prior consistent statement instruction, and that she probably should have objected when the instruction was given. Even so, as a result of our determination that “no reversible error occurred with respect to the jury instruction on [prior consistent statements, Gaither] cannot succeed on his alternative claim that trial counsel rendered ineffective assistance in failing to object to that instruction.” (Citations omitted.) Howard v. State, 288 Ga. 741, 747 (6) (707 SE2d 80) (2011).

(b) Gaither contends that his trial counsel should have objected to certain of Davis’s testimony about the 2005 similar transaction. Specifically, Davis testified that Gaither

made a statement to me that said he and his girlfriend had brought another male to a dope house somewhere in the area, I believe, on Nowell Street and that, while they were waiting on him to return with narcotics, they saw that material there at the house and they decided to take it to exchange it for — at a flea market for money.

At the motion for new trial hearing, trial counsel testified that she could not recall why she did not object to that testimony. Gaither argues that the testimony about the dope house was irrelevant to the similar transaction and highly prejudicial as bad character evidence against him.

We agree that the testimony at issue was irrelevant to the similar transaction. But even if the testimony had placed Gaither’s character in issue, “[a] decision on whether to object when a defendant’s character is placed in issue is a matter of trial tactics and does not equate with ineffective assistance of counsel.” (Punctuation and footnote omitted.) Grier v. State, 276 Ga. App. 655, 663 (4) (d) (624 SE2d 149) (2005).

Judgment affirmed.

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

Decided April 25, 2013.

Sheueli C. Wang, for appellant.

Layla H. Zon, District Attorney, Erie J. Newton III, Assistant District Attorney, for appellee.

       This was the pattern charge in effect at the time. See Council of Superior Court Judges, Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 1.31.60 (4th ed.).

       This case was tried in May 2009. In October 2011, the Supreme Court of Georgia held that “an instruction on prior consistent statements should no longer be given except where the circumstances of an unusual case suggest that the jury may have the mistaken impression that it cannot consider a prior consistent statement as substantive evidence.” Stephens, supra, 289 Ga. at 759 (1) (a). Prior to Stephens, this Court had stated that “[t]he better practice would be to give no charge at all on prior consistent statements and leave that matter to the arguments of counsel.” Boyt v. State, 286 Ga. App. 460, 468 (3) (649 SE2d 589) (2007).


text:
    A13A0139.
    MALLARD v. THE STATE.
    (742 SE2d 164)
   Miller, Judge.

Following a partially stipulated bench trial, Helen Mallard was convicted of one count of methamphetamine possession (OCGA § 16-13-30 (a)). Mallard appeals, following the denial of her motion for new trial, contending that the evidence was insufficient to sustain her conviction. Discerning no error, we affirm.

On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict. We neither assess the credibility of the witnesses nor weigh the evidence, but instead determine only whether a rational trier of fact could have found each of the elements of the crime proven beyond a reasonable doubt.

(Citations omitted.) Stephens v. State, 271 Ga. App. 634 (610 SE2d 613) (2005).

So viewed, the trial evidence shows that on March 25, 2009, at approximately 9:00 p.m., an officer with the Haralson County sheriff’s department was patrolling an area where a rash of burglaries had occurred. The officer observed a vehicle that he considered suspicious because it was backed into the driveway of a house, which the officer knew to be vacant, with the headlights and engine turned off. Mallard was sitting in the driver’s seat.

While the officer remained in his vehicle and contacted dispatch, Mallard’s female passenger exited the parked vehicle and walked toward the officer’s patrol car. Mallard exited the driver’s side of the vehicle and walked around behind it. Because it was dark, and there were no street lights, the officer turned on the alley lights on his patrol car so he could see who was inside the vehicle. The officer exited his patrol car with his flashlight and walked passed Mallard’s passenger to where he could see behind the parked vehicle. Mallard’s passenger also moved behind the parked vehicle.

The officer then walked back around the parked vehicle, asked for the women’s identification and questioned them about what they were doing in the area and what was going on. Mallard’s passenger stated that she had previously lived at the vacant house and was removing some items from when she had lived there. Mallard’s passenger also stated that Mallard had dropped her keys and could not find them.

While the officer was talking to the women, he noticed a clean and dry white plastic film-like canister with a blue lid lying on the wet and muddy ground near the passenger side rear door of the parked car. The canister was beside Mallard’s foot.

The officer looked down at the canister, and Mallard attempted to step on it to cover it up. When the officer questioned Mallard about the canister, Mallard picked up the canister and threw it toward the front of the parked vehicle. The officer then retrieved the canister and discovered that it contained methamphetamine.

The officer further questioned Mallard and her passenger about the canister, and both women denied that the canister belonged to either of them. The officer then separated the women and interviewed them individually. Mallard stated that she had no idea what the canister was or where it came from. Mallard also gave no explanation for stepping on the canister or throwing it away. Mallard’s passenger, however, stated that the canister belonged to Mallard, she had seen the canister in Mallard’s possession earlier that day, and she and Mallard had smoked some methamphetamine out of it. Mallard was charged with and convicted of one count of possession of methamphetamine.

In her sole enumeration of error, Mallard contends that the evidence was insufficient to support her conviction for methamphetamine possession. We disagree.

In Georgia, it is unlawful for any person to possess any controlled substance, and possession of controlled substances may be actual or constructive. Additionally, when a person not in actual possession of a controlled substance knowingly has the power and intention at a given time to exercise control or dominion over the contraband, he or she has constructive possession of same. A finding of constructive possession, then, must be based on a connection between the defendant and the object that is more than spatial proximity.... [S]o long as there is slight evidence of access, power, and intention to exercise dominion or control over the contraband, the question of fact as to constructive possession remains with the [trier of fact].

Decided April 26, 2013.

David L. Smith, for appellant.

Robert E. Brooks, Jr., District Attorney, Carmen T. Bolden, John D. Browning, Assistant District Attorneys, for appellee.

(Citations and punctuation omitted.) Davenport v. State, 308 Ga. App. 140, 145 (1) (b) (706 SE2d 757) (2011); see also Brown v. State, 314 Ga. App. 212, 213 (2) (723 SE2d 504) (2012).

Here, the State presented evidence other than Mallard’s mere spatial proximity to the white canister that contained the methamphetamine to show that she had constructive possession of the drugs. Notably, the evidence showed that the canister was clean and dry, even though the ground was wet and muddy. This evidence supported a finding that the canister containing the methamphetamine had been on the ground for a very short period of time. See Brown, supra, 314 Ga. App. at 213 (2); see also Wright v. State, 302 Ga. App. 332, 334 (690 SE2d 654) (2010) (holding that jury could infer that bag of drugs had been recently placed in wheel well of car where bag was not dirty, weathered or damp).

The evidence also showed that Mallard had possession of the canister earlier that day, the canister belonged to her, and she and her passenger had smoked methamphetamine from the canister a couple of hours before the officer found it. Moreover, Mallard attempted to step on the canister when the officer looked down at it, and she picked up the canister and threw it away when the officer questioned her about it. Mallard’s possession of the canister earlier that day, along with her actions in attempting to conceal the canister and dispose of it, established a meaningful connection between Mallard and the contraband which showed that she actually exercised power and dominion over the drugs and authorized a finding that she had constructive possession of the methamphetamine. See Wright, supra, 302 Ga. App. at 334. Accordingly, the trial court sitting as the trier of fact and law was authorized to find that the evidence supported a finding beyond a reasonable doubt that Mallard was guilty of methamphetamine possession.

Judgment affirmed.

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

       Mallard stipulated to the chain of custody and crime lab results for the methamphetamine involved in this case. Accordingly, the evidence presented at Mallard’s bench trial was limited to the issue of possession of the methamphetamine.


text:
    A13A0302.
    REID v. THE STATE.
    (742 SE2d 166)
   Miller, Judge.

Marcus Daniel Reid appeals following the trial court’s denial of his motion for new trial after a jury convicted him of one count of trafficking in cocaine (OCGA § 16-13-31 (a) (1)) and one count of possession ofmarijuana with the intent to distribute (OCGA § 16-13-30 (j)). Reid contends that the trial court erred in (i) denying his motion to suppress because the search warrant affidavit lacked sufficient information to establish probable cause, and (ii) denying his motion to reveal the identity of the confidential informant. Discerning no error, we affirm.

In considering an appeal from denial of a motion to suppress, this Court construes the evidence in favor of the trial court’s ruling, and we review de novo the trial court’s application of the law to undisputed facts. Additionally, we must defer to the trial court’s determination on the credibility of witnesses, and the trial court’s ruling on disputed facts must be accepted unless it is clearly erroneous. Moreover, in reviewing the denial of a motion to suppress, we consider all the evidence of record, including evidence introduced at trial.

(Citation and punctuation omitted.) Lindsey v. State, 287 Ga. App. 412 (651 SE2d 531) (2007).

So viewed, the evidence showed that police officers received a tip from a confidential informant that Reid was selling cocaine and marijuana in Morgan County. The confidential informant told the officers that he had purchased drugs from Reid and was willing to do so again. Upon receiving this information, the officers initiated an investigation and, with the confidential informant’s assistance, made three controlled cocaine purchases from Reid. Two of the controlled purchases took place at a house located on Bostwick Road, where the officers observed that Reid appeared to be the only resident. Following the conclusion of the third controlled purchase, the officers obtained and executed a warrant to search the Bostwick Road residence.

During their search, the officers found 11.94 grams of powder cocaine, 29.62 grams of crack cocaine, and 21.5 grams of marijuana in a plastic container located on the kitchen counter. Some of the crack cocaine and marijuana were individually packaged in a manner consistent with drug sales. Based on the drugs found at the residence, Reid was subsequently arrested, charged, and convicted of cocaine trafficking and possession of marijuana with the intent to distribute.

1. Reid first challenges the denial of his motion to suppress, arguing that the search warrant was not supported by probable cause because it did not contain sufficient information and relied upon information supplied by the confidential informant. We disagree.

[A] defendant may seek to suppress evidence seized during a warrant search if the warrant was not supported by probable cause. Where the State seeks to establish probable cause through information provided by unidentified informants, the informants’ veracity and basis of knowledge are major considerations in the probable cause analysis. An affidavit submitted in support of a search warrant must set forth sufficient facts from which the magistrate or judge can independently determine the reliability of both the information and the informant. In determining whether an affidavit provided sufficient probable cause, the issuing magistrate or judge must make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

(Punctuation and footnote omitted.) Land v. State, 259 Ga. App. 860, 861 (1) (578 SE2d 551) (2003). Additionally,

[tjhis Court’s review of the magistrate’s decision is limited to determining if the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrant. Substantial deference is afforded to a magistrate’s decision to issue a search warrant based on a finding of probable cause. And a presumption of validity attaches to an affidavit supporting a search warrant. Further, doubtful cases should be resolved in favor of upholding search warrants.

(Citation and punctuation omitted.) Williams v. State, 303 Ga. App. 222, 226 (3) (692 SE2d 820) (2010).

Here, one of the police officers sought a search warrant for the Bostwick Road house based on information he received from the confidential informant that Reid was selling drugs out of the Bostwick Road house. In the search warrant affidavit, the officer stated that the confidential informant took a position against his penal interest by reporting to officers that he had bought drugs from Reid, and that the confidential informant had no known reason to lie. Additionally, the officer stated that he confirmed the information supplied by the confidential informant by conducting three controlled drug purchases from Reid, including two at the Bostwick Road house. The controlled buys strongly corroborated the reliability of the informant and demonstrated a fair probability that contraband would be found in the Bostwick Road house. See State v. Palmer, 285 Ga. 75, 78-79 (673 SE2d 237) (2009); Ibekilo v. State, 277 Ga. App. 384, 385 (1) (626 SE2d 592) (2006) (“[E]ven if the informant had no known credibility, the controlled buy conducted under the observation of the officer alone, would have been sufficient to establish probable cause”) (citation and punctuation omitted). While Reid raises a “mere presence” argument, his argument is misplaced as the cases he relies upon concern the sufficiency of the evidence necessary to convict an individual for drug offenses, not whether the search warrant was supported by probable cause. Therefore, the trial court did not err in denying Reid’s motion to suppress on this ground.

2. Reid also contends that the trial court erred in denying his motion to order the State to reveal the identity of the confidential informant. We disagree.

[Former] OCGA §§ 24-9-21 (4) and 24-9-27 (d)[] provide for privilege against disclosure of the identity of a confidential informant who was not an eyewitness to the offense that forms the basis for the prosecution, although he or she may have seen the defendant in possession of the contraband at an earlier time, but did not participate in the offense. The informant, for evidentiary purposes, is considered a mere “tipster.”

(Footnote omitted.) Nunnally v. State, 261 Ga. App. 198, 201 (4) (582 SE2d 173) (2003).

Decided April 26, 2013.

Phillip R. Peacock, for appellant.

Fredric D. Bright, District Attorney, Alison T. Burleson, Assistant District Attorney, for appellee.

Here, the confidential informant’s sole involvement in the case was providing information to the police officer and making controlled drug buys from Reid. The police officer then relied upon those controlled drug buys to obtain a search warrant fo,r the Bostwick Road residence. The State did not indict Reid for the multiple sales of cocaine to the informant. Rather, the State indicted Reid for cocaine trafficking and possession of marijuana with the intent to distribute based on the drugs found during the execution of the search warrant. The confidential informant was not present during the execution of the search warrant and was not a witness to the offenses that form the basis of the instant prosecution. Consequently, the trial court was authorized to conclude that the informant was a mere tipster whose identity was absolutely privileged. See, e.g., Nunnally, supra, 261 Ga. App. at 201 (4); Rush v. State, 188 Ga. App. 520, 521-522 (4) (373 SE2d 377) (1988). Therefore, the trial court correctly denied Reid’s motion to reveal the confidential informant’s identity.

Judgment affirmed.

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

       To the extent Reid challenges the sufficiency of the evidence to support his conviction, Reid did not enumerate this claim as error. Therefore, his argument concerning sufficiency of the evidence provides no basis for appellate review. See Brown v. State, 310 Ga. App. 835, n.1 (714 SE2d 395) (2011) (providing that a party cannot expand his enumerations of error through argument or citation in his brief, and claims not enumerated as error will not be reviewed).

       The former provisions of OCGA §§ 24-9-21 and 24-9-27 were in effect until January 1, 2013, when Georgia’s new rules of evidence became effective. See Ga. L. 2011, p. 99, § 2. The provisions of Georgia’s new Evidence Code “apply to any motion made or hearing or trial commenced on or after” January 1, 2013. Ga. L. 2011, p. 99, § 101. Since Reid filed his motion to reveal the confidential informant’s identity prior to this date, the prior Evidence Code applies in this case.