author: Dillard, Judge.

text:
    A13A0107.
    MULDROW v. THE STATE.
    (744 SE2d 413)
   Dillard, Judge.

Following a trial by jury, Austin Muldrow was convicted on two counts of possession of a firearm during the commission of a crime, possession of cocaine with intent to distribute, and possession of marijuana with intent to distribute. On appeal, Muldrow contends that (1) there is insufficient evidence on one count of possession of a firearm during the commission of a crime, (2) the State failed to prove venue, (3) he received ineffective assistance of counsel when his attorney failed to move for a directed verdict after the State failed to prove venue, (4) he received ineffective assistance of counsel when his attorney stipulated to venue without his express authorization, and (5) the trial court erred in accepting a stipulation to venue without a proper showing that Muldrow authorized same. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s guilty verdict, the record reflects that in the early morning hours of June 1, 2006, Antonio McDaniel was shot in the head and killed on a residential street in Augusta. Muldrow lived in a house adjacent to where McDaniel’s body was found, and he and his live-in girlfriend were questioned during law enforcement’s investigation.

During questioning, Muldrow consented to various searches of his homes and vehicles. He also directed law enforcement as to where they could locate weapons and drugs in these locations. Officers discovered three firearms, ammunition, a one-gallon-sized bag filled with 127.8 grams of marijuana individually packaged in small plastic baggies, a bag of more than 17 grams of crack cocaine, a bag with five pieces of crack cocaine, and scales typically associated with weighing narcotics.

In the course of continued questioning, Muldrow became a suspect in the murder due to inconsistencies between his statements and those of his girlfriend. Muldrow eventually told law enforcement that he killed McDaniel, but he later denied that this was true. Nevertheless, he never denied possessing the firearms or drugs. Muldrow also testified at trial that he sold cocaine to an acquaintance on the night in question and that he routinely sold drugs from a hotel room.

The jury subsequently convicted Muldrow of possessing a weapon during the commission of a crime and possessing marijuana and cocaine with the intent to distribute, but he was acquitted on the murder charges. This appeal follows.

At the outset, we note that on appeal from a criminal conviction, “we view the evidence in the light most favorable to the jury’s verdict, and the defendant is no longer presumed innocent.” And in evaluating the sufficiency of the evidence, we do not weigh the evidence or determine witness credibility, but only determine “if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offenses beyond a reasonable doubt.” Accordingly, the jury’s verdict will be upheld so long as there is “some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case.” With these guiding principles in mind, we turn now to Muldrow’s enumerations of error.

1. First, we will address Muldrow’s contention that the evidence against him was insufficient to sustain one of the convictions for possession of a weapon during the commission of a crime. Specifically, Muldrow argues that because he was acquitted of murder, there was no basis for the underlying felony of possession of a weapon during the commission of a crime. However, this argument is wholly without merit due to Georgia’s rejection of the inconsistent-ver diet rule. It is well established that a defendant “cannot attack as inconsistent a jury verdict of guilty on one count and not guilty on a different count.” Accordingly, Muldrow’s argument that his conviction for possession of a firearm during the commission of a crime is void fails.

2. Next, in three separate enumerations of error, Muldrow contends that the State failed to establish venue, that his trial counsel was ineffective in failing to move for a directed verdict as to this failure, and that his counsel was ineffective in stipulating to venue. We agree that the State’s evidence failed to establish venue, but venue was ultimately established by way of a stipulation to same, and Muldrow did not receive ineffective assistance of counsel in this regard. We will address each of his contentions in turn.

(a) First, as to venue, we note that the Georgia Constitution requires that venue in all criminal cases “be laid in the county in which the crime was allegedly committed.” And as with every other material allegation contained in an indictment, the State must prove venue beyond a reasonable doubt. Indeed, when a defendant pleads not guilty to criminal charges, the State must prove venue by more than “slight evidence.” And the failure to prove venue beyond a reasonable doubt “renders the verdict contrary to law, without a sufficient evidentiary basis, and warrants reversal.”

In the case sub judice, the State maintains that it presented sufficient evidence of venue; however, the State’s arguments in support of this contention are without merit. Indeed, it is well established that proving a crime happened on a particular street is not sufficient to establish venue, nor is “proving that a crime took place within a city without also proving that the city is entirely within a county . . . ,” Additionally, the investigating officers’ county of employment “does not, in and of itself, constitute sufficient proof of venue to meet the beyond a reasonable doubt standard.” And finally, contrary to the State’s assertions, this Court cannot rely upon material not presented to the jury to find that venue was proper; “[n]or are we, as a reviewing court, free to resort to judicial notice to legitimize a judgment.” Nevertheless, as further discussed infra, venue was established when Muldrow stipulated to same at the State’s request. Accordingly, this enumeration of error is without merit.

(b) Next, as to Muldrow’s argument that he received ineffective assistance of counsel, in general, when a defendant claims that his trial counsel was ineffective, he has the burden of establishing that “(1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” And when the trial court determines that a defendant has not received ineffective assistance, we will affirm that decision on appeal unless it is clearly erroneous.

Here, Muldrow first takes issue with his counsel’s failure to move for a directed verdict as to the State’s failure to establish venue and, second, with his counsel’s ultimate stipulation to venue. But Muldrow cannot establish that he received ineffective assistance of counsel in either instance.

To begin with, the record reflects that Muldrow’s counsel moved for and was denied a directed verdict as to the issue of murder at the close of the State’s evidence, but he did not move for a directed verdict on the issue of a failure to establish venue. And later during the charge conference, despite opining that venue had been shown, the State expressed reservations over not having asked any witness the specific question of whether the crimes occurred in Richmond County and, thus, sought leave to reopen the evidence to ask that question of a witness. In response, Muldrow’s counsel had no objection to the State’s request. And as a result of defense counsel’s willingness to permit the evidence to be reopened for purposes of establishing venue, the State inquired as to whether Muldrow would stipulate that venue was indeed proven. Muldrow’s counsel agreed to same on his client’s behalf, and venue in Richmond County was thereafter stipulated to before the jury.

As previously noted, Muldrow contends that his counsel was ineffective in failing to move for a directed verdict on the failure to establish venue and his ultimate decision to stipulate to venue. Pretermitting whether either decision fell below the objective standard of reasonableness, Muldrow cannot prove that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Indeed, had defense counsel either moved for a directed verdict as to the lack of venue or decided against ultimately stipulating to same, the trial transcript clearly shows that the State was prepared to reopen the evidence to recall a witness for the purposes of asking whether the events transpired in Richmond County, and the trial court had discretion to permit such a procedure. Accordingly, Muldrow’s contentions are without merit.

3. Finally, Muldrow maintains that the trial court committed error by accepting his counsel’s stipulation to venue without “a proper showing that [Muldrow] authorized said stipulation.” Specifically, Muldrow contends that the trial court should have inquired as to whether he authorized his attorney to enter into the stipulation and, therefore, committed error in accepting the stipulation without having done so.

In support of this contention, Muldrow — in what can only be described as a remarkable display of appellate ingenuity — quotes language contained in a parenthetical to a physical-precedent citation in dicta of Sanders v. State Suffice it to say, we are not bound to follow extraneous non-precedential musings. But even if this Court were inclined to rely upon this language, it would only benefit Muldrow if we likewise adopted his overly narrow view of the requirement that an accused authorize a stipulation — i.e., that a trial court must question the accused personally as to whether he agrees to enter into a stipulation. We decline to do so.

Here, unlike in In re Glenn, the stipulation was both made by Muldrow’s attorney and presented to the jury in Muldrow’s presence without objection, which was sufficient to bind Muldrow and show his authorization. Accordingly, the trial court did not err by accepting Muldrow’s stipulation to venue.

Judgment affirmed.

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

Decided June 12, 2013.

Wendell R. Adams, for appellant.

Ashley Wright, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

       He was acquitted on charges of malice murder and felony murder.

        See, e.g., Goolsby v. State, 299 Ga. App. 330, 330 (682 SE2d 671) (2009).

       In addition to the residence near the crime scene, Muldrow also kept belongings at an abandoned home that had formerly belonged to his mother.

        See OCGA § 16-11-106 (b) (“Any person who shall have on or within arm’s reach of his or her person a firearm . . . during the commission of, or the attempt to commit [certain enumerated felonies] commits a felony and, upon conviction thereof, shall be punished by confinement for a period of five years, such sentence to run consecutively to any other sentence which the person has received.”); OCGA § 16-13-30 (b) (“Except as authorized by this article, it is unlawful for any person to manufacture, deliver, distribute, dispense, administer, sell, or possess with intent to distribute any controlled substance.”); OCGA § 16-13-30 (j) (1) (“It shall be unlawful for any person to possess, have under his or her control, manufacture, deliver, distribute, dispense, administer, purchase, sell, or possess with intent to distribute marijuana.”).

       See OCGA § 16-5-1 (a) (“Aperson commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.”); OCGA § 16-5-1 (c) (“A person also commits the offense of murder when, in the commission of a felony, he causes the death of another human being irrespective of malice.”).

        Goolsby, 299 Ga. App. at 330 (punctuation omitted).

        Id. at 330-31 (punctuation omitted).

        Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (punctuation omitted).

       Although this is the only argument Muldrow makes as to the sufficiency of the evidence against him, we note that the evidence was sufficient to sustain his other convictions as well.

        See, e.g., Coleman v. State, 286 Ga. 291, 295-96 (4) (687 SE2d 427) (2009) (rejecting defendant’s argument that conviction for possession of a weapon during the commission of a crime could not stand in light of his acquittal on the underlying felony); Lawrence v. State, 274 Ga. 794, 794 (2) (560 SE2d 17) (2002) (same).

        Coleman, 286 Ga. at 296 (4).

        See id.

        Jones v. State, 272 Ga. 900, 901 (2) (537 SE2d 80) (2000); see also Ga. Const. art. VI, sec. II, par. VI (“[A]ll criminal cases shall be tried in the county where the crime was committed, except cases in the superior courts where the judge is satisfied that an impartial jury cannot be obtained in such county.”); OCGA § 17-2-2 (a).

        See, e.g., Jones, 272 Ga. at 901 (2) (“Like every other material allegation in the indictment, venue must be proved by the prosecution beyond a reasonable doubt.” (punctuation omitted)).

        See id. at 902 (2) (“[C]lose examination of the ‘slight evidence exception’ reveals that, by its own definition, it can never be applied to situations where a criminal defendant pleads not guilty to the charges indicted against him or her and is placed on trial.”).

        Id. at 901-02 (2).

        See, e.g., Bizzard v. State, 312 Ga. App. 185, 186 (2) (718 SE2d 52) (2011) (“As our Supreme Court has explained, however, a street name, standing alone, is never sufficient to establish venue, because streets frequently run through more than one county.” (punctuation omitted)); Powers v. State, 309 Ga. App. 262, 263 (1) (709 SE2d 821) (2011).

        Bizzard, 312 Ga. App. at 187 (2) (punctuation omitted); accord Powers, 309 Ga. App. at 263 (1).

        Powers, 309 Ga. App. at 264 (1) (punctuation omitted); see also In the Interest of D. D., 287 Ga. App. 512, 514-15 (2) (b) (651 SE2d 817) (2007) (“[T]he fact that the responding officers were employed by the Coweta County Sheriff’s Department cannot serve as the exclusive proof that the crimes occurred in that county.”).

        See Thompson v. State, 277 Ga. 102, 103 (1) (586 SE2d 231) (2003) (reversing Court of Appeals decision that found venue proper because Court of Appeals “relied upon evidence that was never presented to the jury in order to conclude that the evidence of venue was sufficient” and, by doing so, “failed to conduct a proper sufficiency review”).

        Bradley v. State, 238 Ga. App. 490, 490 (519 SE2d 261) (1999) (declining to take judicial notice of geographical facts to support venue and noting that there was no indication in the record that the trial court took judicial notice of same); accord Tunarka v. State, 247 Ga. App. 578, 579 (545 SE2d 15) (2001); see OCGA § 24-2-201 (setting forth the proper procedure through which the trial court may take judicial notice of adjudicative facts).

        See Tompkins v. State, 278 Ga. 857, 858 (1) (607 SE2d 891) (2005) (“A defendant may stipulate to venue or other factual matters, but the record must reflect that the defendant expressly authorized such stipulation and that the stipulation was intended to obviate the need for direct proof.”); see also State v. Dixon, 286 Ga. 706, 708 (2) (691 SE2d 207) (2010) (“A criminal defendant may waive jurisdictional defenses and may expressly authorize factual stipulations that will obviate the need for proof.” (citations omitted)). Cf. Thompson, 277 Ga. at 104 (2) (“Because no valid stipulation regarding venue existed, the State was required to introduce evidence at trial on the issue.”).

        Owens v. State, 317 Ga. App. 821, 823 (1) (733 SE2d 16) (2012) (punctuation omitted).

       Id.

        Bradley v. State, 292 Ga. 607, 614 (5) (740 SE2d 100) (2013) (punctuation omitted).

        See Davenport v. State, 308 Ga. App. 140, 157 (3) (706 SE2d 757) (2011) (holding that trial court did not commit error when it allowed State to reopen evidence to establish venue); see also Dandy v. State, 238 Ga. App. 435, 435 (2) (518 SE2d 907) (1999). Cf. Hinkle v. State, 282 Ga. App. 328, 330 (3) (638 SE2d 781) (2006).

        See Court of Appeals Rule 33 (a) (“If an appeal is decided by a Division, a judgment in which all three judges fully concur is a binding precedent; provided, however, an opinion is physical precedent only with respect to any Division of the opinion for which there is a concurrence in the judgment only or a special concurrence without a statement of agreement with all that is said.... The opinion of a case which is physical precedent shall be marked as such.”).

       252 Ga. App. 609, 613 (2) (556 SE2d 505) (2001) (citing In re Glenn, 200 Ga. App. 276 (407 SE2d 428) (1991) (physical precedent only), for the proposition that “in criminal cases, the court should not accept a stipulation as to a material fact without a showing that it was authorized by the accused himself”).

       This is not to say, however, that a party on appeal should shy away from citing physical precedent as persuasive authority. Indeed, some of the judges on this Court are of the view that our physical-precedent cases should be afforded greater consideration than decisions from appellate courts in other jurisdictions. Nevertheless, it is crucial that litigants explicitly designate physical precedent as such, and thoroughly explain why this Court should adopt the reasoning from that particular opinion. This, Muldrow failed to do.

       200 Ga. App. 276, 276 (407 SE2d 428) (1991) (noting that “[tjhere is some question whether the pretrial stipulation [by counsel] had ever become valid and enforceable prior to its withdrawal, it having been secured outside the presence of [the defendant] and [the defendant] apparently not having otherwise ratified it”) (physical precedent only).

        See Denson v. State, 150 Ga. 618, 620-21 (4) (104 SE 780) (1920) (holding that waiver by attorney was binding upon the accused when, before the State introduced the evidence complained of on appeal, counsel for the State, “in the presence of the accused and his counsel, stated the agreement, and the evidence of the witness was then read to the jury in the presence of the accused and his counsel... without objection”); see also id. at 621 (“It is generally agreed that stipulations, whether made by the defendant himself or by his counsel, are binding. The authorities are generally agreed upon the proposition that it is immaterial whether the stipulation is made by counsel employed by the accused or by counsel appointed by the court for the accused.”); Dryer v. State, 205 Ga. App. 671, 672 (1) (423 SE2d 297) (1992) (“Generally, a statement by defense counsel made in the presence of the defendant relating to the defendant’s conduct is considered a statement by the defendant himself if the defendant does not repudiate counsel’s authority to make the statement.”). Compare Farmer v. State, 100 Ga. 41, 45-46 (28 SE 26) (1896) (holding that admissions purportedly made by an accused by way of his agents or attorneys in pleadings from a civil case are not admissible in a criminal case “unless shown to have been authorized by him”).


source: Caselaw Access Project

author: RAY, Judge.

license: Public Domain

text:
    A13A0124.
    JACKSON v. THE STATE.
    (744 SE2d 380)
   RAY, Judge.

Yusef Jackson was indicted for the offenses of malice murder (OCGA § 16-5-1 (a)), felony murder (OCGA § 16-5-1 (c)), possession of a firearm during the commission of a crime (OCGA § 16-11-106), and possession of a firearm by a convicted felon (OCGA § 16-11-131). Following a jury trial, Jackson was found guilty of possession of a firearm during the commission of a crime based on the theory of party to a crime, but he was found not guilty of the remaining offenses. He appeals from his conviction and the denial of his motion for new trial, contending that the evidence was insufficient to support the verdict, and that the jury’s verdict of guilty as to possession of a firearm during the commission of a crime and not guilty as to possession of a firearm by a convicted felon is inconsistent and mutually exclusive. Jackson also contends that the trial court erred in denying his motion to dismiss and bar prosecution based on the violation of his constitutional right to a speedy trial. For the following reasons, we affirm.

1. Jackson contends that the evidence was insufficient to support his conviction of possession of a firearm based on party to a crime. We disagree.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant is no longer entitled to a presumption of innocence. We neither weigh the evidence nor judge the credibility of the witnesses, but determine only the sufficiency of the evidence in accordance with the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(Citation omitted.) Clark v. State, 319 Ga. App. 880, 880 (738 SE2d 704) (2013).

So viewed, the evidence shows that on July 5, 2006, Torrence “Cooley” Roston was shot and killed as he was going to the bathroom outside of a Savannah night club known as Frankie J’s. Several witnesses testified that there were two assailants involved in the shooting, but no one was able to affirmatively identify the shooter.

Jackson was considered a suspect immediately after the shooting. A few weeks before the shooting, Roston and his friend, Conrad George, had attacked Jackson inside Frankie J’s and badly beaten him. During their investigation after the shooting, the police searched the car that Roston had been driving and found Jackson’s ID in the vehicle. Jackson’s phone records put him in the area of the shooting at the time of the crime, and his phone records also indicated that he had been in contact with another individual, Anthony Joyner, minutes before the shooting occurred. During the investigation, Joyner provided statements to the police that he had called Jackson on the night of the shooting to purchase drugs from him and that he had mentioned to Jackson that Roston was at Frankie J’s that night. After Joyner purchased drugs from Jackson, Jackson had stated to Joyner that he was going to “F that —• straighten that F nigger out.” However, as the evidence against Jackson was weak and circumstantial, he was not arrested or charged at that time, and the investigation became cold.

In August 2006, Jackson was arrested on unrelated charges for which he was ultimately convicted. While Jackson .was in Coastal State Prison, he was housed in the same dormitory with another inmate, Stacy Faison. After Faison was transferred to another prison facility, Faison contacted the district attorney in Savannah in November 2007 to offer information that he had learned from Jackson concerning the shooting. Detectives from the Savannah Police Department went to talk to Faison on November 16, 2007, and he told them that Jackson had admitted to him that he killed Roston because Roston had beaten him up and that Roston had taken his ID after the fight. Specifically, Jackson said that he and an individual referred to as “T” shot Roston as he was going to the bathroom outside Frankie J’s. Based on this information and the subsequent follow-up investigation concerning Faison’s statements, the State indicted Jackson on April 21, 2010.

OCGA § 16-2-20 (a) provides that “[ejvery person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” And a person is a party to a crime if that person “[d]irectly commits the crime;... [ijntentionally aids or abets in the commission of the crime; or . . . [i]ntentionally advises, encourages, hires, counsels, or procures another to commit the crime.” (Punctuation omitted.) OCGA § 16-2-20 (b) (1), (3) and (4). See also Collins v. State, 229 Ga. App. 210, 211-212 (1) (b) (493 SE2d 592) (1997).

Here, Jackson’s statements to Faison indicate that Jackson had decided to kill Roston and that he and another individual participated in the shooting. “The testimony of a single witness is generally sufficient to establish a fact.” (Citation omitted.) Smith v. State, 319 Ga. App. 590, 591 (1) (737 SE2d 700) (2013). Furthermore, Faison’s detailed account of what Jackson had told him was corroborated by the testimony of other witnesses at trial. Lastly, it is well settled that a defendant may be convicted of possession of a firearm during the commission of a felony even though the defendant is acquitted of the underlying felony. Coleman v. State, 286 Ga. 291, 295-296 (4) (687 SE2d 427) (2009); Lawrence v. State, 274 Ga. 794 (2) (560 SE2d 17) (2002). Accordingly, there was sufficient evidence to establish that Jackson was a party to the crime of possession of a firearm during the commission of the crime of murder. See Collins, supra at 212 (1) (b).

2. Jackson contends that the trial court erred in denying his motion to dismiss and bar prosecution for violation of his constitutional right to a speedy trial. We discern no error.

Although Jackson was immediately considered a suspect in the shooting death of Roston in July 2006, the evidence against him at that time was circumstantial until Faison came forward in November 2007, with Jackson’s jailhouse confession. By that time, a potential witness, George, and a potential co-defendant, Teonne Spencer, had died. Thereafter, the State’s follow-up investigation of the information provided by Faison was not completed until February 2010, and Jackson was indicted on April 21, 2010. Jackson filed a statutory demand for a speedy trial on August 30, 2010, and the motion to dismiss based on violation of his constitutional right to a speedy trial on November 12, 2010.

Jackson alleges that his constitutional right to a speedy trial was violated because of the State’s four-year delay in the investigation prior to his indictment, and that the delay was presumptively prejudicial because it prevented him from interviewing potential witnesses and a possible co-defendant. However, the right to a speedy trial under the state and federal constitutions attaches at the time of arrest or when formal charges are brought, whichever is earlier. Wimberly v. State, 279 Ga. 65, 65 (608 SE2d 625) (2005). Here, Jackson’s constitutional right to a speedy trial attached at the time of his indictment, since he was already incarcerated for an unrelated conviction at the time the State brought the charges against him. Rogers v. State, 286 Ga. 387, 387 (688 SE2d 344) (2010) (where defendant was serving a sentence on an unrelated charge when the indictment was returned, the date of the indictment was the date upon which his right to a speedy trial attached). Thus, the focus of the trial court’s analysis was on the six-month, twenty-three-day period between the return of Jackson’s indictment on April 21, 2010, and the filing of the motion to dismiss on November 12, 2010. See id.

In determining whether a defendant’s constitutional right to a speedy trial has been violated, the trial court must engage in a balancing test in which the court assesses the “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant^]” together with such other circumstances as may be relevant. (Footnote omitted.) Barker v. Wingo, 407 U. S. 514, 530-533 (III), (IV) (92 SCt 2182, 33 LE2d 101) (1972); Wimberly, supra at 66. However, the trial court was not required to engage in the balancing test unless Jackson has shown that the delay since his indictment is “presumptively prejudicial.” Wimberly, supra.

In this case, Jackson failed to show that the approximate seven-month delay since his indictment was presumptively prejudicial. Jackson’s argument, both in his motion to dismiss before the trial court and on appeal to this Court, is based on the assertion that the four-year delay prior to his indictment was presumptively prejudicial. As noted above, Jackson’s constitutional rights to a speedy trial did not attach until his indictment. “Where the delay occurs in the investigative stage before either arrest or indictment, due process, not sixth amendment, standards apply.” (Citation and punctuation omitted.) Roebuck v. State, 277 Ga. 200, 205 (4) (586 SE2d 651) (2003).

A due process violation requires a finding 1) that the delay caused actual prejudice to the defense, and 2) that the delay was the product of deliberate action by the prosecution designed to gain a tactical advantage.

(Citation and punctuation omitted; emphasis in original.) Id.

Jackson contends that the four-year delay between the shooting and his indictment was prejudicial because potential witnesses and a possible co-defendant are now deceased. However, “any prejudice which results merely from the passage of time cannot create the requisite prejudice.” (Citation and punctuation omitted.) Roebuck, supra at 205 (4). Furthermore, the record shows that the delay between the shooting and the indictment was the result of the State’s decision to conduct further investigation, and the “[d]elay occasioned by the ongoing investigation of a case does not rise to the level of a due process violation.” (Citations omitted.) Id.

As the circumstances of this case warrant the finding that Jackson’s allegations of pre-indictment delay do not amount to a due process violation, and because Jackson failed to show that the six-month, twenty-three-day delay between Jackson’s indictment and the filing of his motion to dismiss was presumptively prejudicial, the trial court did not err when it denied Jackson’s motion to dismiss based on a purported violation of his constitutional right to a speedy trial.

3. Jackson contends that the jury’s verdict of guilty of possession of a firearm during the commission of a crime based on party to a crime and not guilty of possession of a firearm by a convicted felon is improper because it is inconsistent and mutually exclusive. We disagree.

In Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986), our Supreme Court adopted the reasoning of the United States Supreme Court in United States v. Powell, 469 U. S. 57, 64-67 (105 SCt 471, 83 LE2d 461) (1984), and abolished the rule against inconsistent verdicts. The essence of the holding in Powell is that appellate courts need not invalidate a conviction on one offense (such as the offense of possession of a firearm during the commission of a crime in the present case) which is logically inconsistent with an acquittal on another offense (in this case, possession of a firearm by a convicted felon) because the appellate court cannot know and should not speculate why a jury acquitted on one offense and convicted on the other offense. Powell, supra at 65-66. The reason could be an error by the jury in its consideration or it could be mistake, compromise, or lenity, but as a matter of prudence, the conviction on the one offense should be upheld so long as the evidence will support it. Id.

Jackson contends that the jury’s verdicts of guilty as to the possession of a firearm during the commission of a crime and not guilty to possession of a firearm by a convicted felon are mutually exclusive. However,

verdicts are mutually exclusive where a guilty verdict on one count logically excludes a finding of guilt on the other. Thus, the rule against mutually exclusive verdicts applies to multiple guilty verdicts which cannot be logically reconciled; the rule is not implicated where, as here, verdicts of guilty and not guilty are returned.

(Citation, punctuation and emphasis omitted.) Turner v. State, 283 Ga. 17, 20 (2) (655 SE2d 589) (2008). While Jackson’s enumeration of error speaks in terms of mutually exclusive verdicts, the basis of his argument is that the verdicts are inconsistent. And as noted above, our Supreme Court has abolished the rule against inconsistent verdicts. Milam, supra.

The sole exception to the abolition of the inconsistent verdict rule applies “when instead of being left to speculate about the unknown motivations of the jury the appellate record makes transparent the jury’s reasoning why it found the defendant not guilty of one of the charges. . . .” (Citations and punctuation omitted.) Turner, supra at 20-21 (2). The record before us, however, does not invoke that exception because it contains nothing that makes transparent the jury’s reasoning for finding Jackson not guilty of possession of a firearm by a convicted felon. Furthermore, based on our holding in Division 1, there was sufficient evidence to support the guilty verdict of possession of a firearm during the commission of murder based on party to a crime. Therefore, Jackson’s conviction for possession of a firearm during the commission of a crime is valid. Morrell v. State, 313 Ga. App. 443, 445-446 (1) (721 SE2d 643) (2011).

Decided June 12, 2013.

Michael L. Edwards, for appellant.

Larry Chisolm, District Attorney, Christine S. Barker, Meg E. Heap, Assistant District Attorneys, for appellee.

Judgment affirmed.

Barnes, P. J., and Miller, J., concur.


text:
    A13A0289.
    A13A0290.
    BETANCOURT v. THE STATE. HERNANDEZ v. THE STATE.
    (744 SE2d 419)
   Dillard, Judge.

Edgar David Betancourt and Oscar Hernandez (collectively, “appellants”) were jointly tried and convicted on one count of trafficking in cocaine, in violation of OCGA § 16-13-31 (a), and Hernandez alone was convicted on one count of obstruction of a law-enforcement officer, in violation of OCGA § 16-10-24 (a). In these companion appeals, appellants argue that the trial court erred in denying their motions to suppress physical evidence and in allowing the admission of similar-transaction evidence, and that their respective trial counsel rendered ineffective assistance. For the reasons set forth infra, we affirm in both cases.

Viewed in the light most favorable to the jury’s verdict, the evidence presented at trial shows that on the afternoon in question, a police officer with the Gwinnett County Police Department observed a vehicle traveling northbound on Interstate 85 with unlawfully dark window tinting. And as the officer began to follow the vehicle, he noticed that it had a Massachusetts license plate that was partially obscured and that the driver was following too closely to the car in front of it. As a result, the officer initiated a stop of the vehicle.

Upon approaching the vehicle, the officer detected a strong odor of air freshener and observed that there was only a single key in the ignition and religious insignia throughout its interior (the relevance of which is noted infra). He requested the license and registration of the driver, Betancourt, and immediately noticed that his license was issued by Rhode Island. The officer began to ask questions in an attempt to establish the ownership of the vehicle due to the equipment violations and the Massachusetts registration; however, each of the officer’s questions was answered by the passenger, Hernandez- — • who indicated that the vehicle belonged to a friend.

The officer then requested that Betancourt exit the vehicle, attempted to explain the reason for the stop, and sought to obtain additional information about the vehicle’s owner. Betancourt, who the officer described as “quite nervous,” indicated that he did not understand English. The officer thereafter called for an interpreter from a nearby police department, returned to Hernandez to explain the reason for the stop, and retrieved Hernandez’s license, which was also issued by Rhode Island.

The officer then attempted to verify the appellants’ identities and Betancourt’s license status several times, but experienced a delay due to the computer system — a fact he confirmed by calling the police department’s radio room. The officer testified that he needed to obtain this information to complete the traffic citations and to verify whether Betancourt’s license was valid or suspended. And as he returned to Hernandez to explain the reason for the delay, the officer asked Hernandez if the car contained any illegal weapons or drugs, to which Hernandez responded, “no, my friend, you can go ahead and check.”

While the officer was completing his paperwork and waiting for the results of the computer check on appellants’ licenses, a Spanish-speaking officer arrived on the scene approximately 20 minutes after the initial stop. The first officer directed the translating officer to request Betancourt’s consent to search the vehicle, and Betancourt authorized the search contingent upon Hernandez’s consent. The first officer then returned to Hernandez and again asked if the vehicle contained any illegal weapons, drugs, or currency. When Hernandez answered in the negative, the officer requested permission to search and Hernandez responded, “[s]ure, no problem, my friend.”

The first officer then conducted a search of the vehicle and located a hidden compartment constructed underneath the back seat. And while he could not access the compartment at the time, he inserted a small flashlight and was able to see shrink-wrapped green cellophane packages which, based upon his training and experience, he believed to contain contraband. The officer signaled to the translating officer, who had moved to a shaded woodline with Betancourt, and upon seeing this signal, Betancourt fled. After a brief foot chase, Betancourt was apprehended. Hernandez, who did not attempt to flee, was also arrested at the scene.

The hidden compartment was later discovered to contain 5.085 kilograms of cocaine consisting of 66.5 percent purity, which had a street value estimated to be approximately $125,000.

Thereafter, Betancourt and Hernandez were indicted on one count each of trafficking in cocaine. And during the ensuing trial, the State introduced similar-transaction evidence over appellants’ objection. The similar-transaction evidence consisted of testimony from a K9 officer who was involved in the search of a different Massachusetts-registered vehicle driven by appellants in North Carolina. During that incident, Betancourt was driving, and the pair were headed southbound on an interstate that feeds into Interstate 85 in a vehicle with unlawfully dark-tinted windows, a single key in the ignition, and religious insignia on the dashboard.

After law enforcement stopped the car, conducted a free-air search and received a positive alert from the K9 for the presence of narcotics, the appellants consented to a search of that vehicle. The car did not contain drugs, but the search resulted in the seizure of $195,000 cash in shrink-wrapped bundles recovered from hidden compartments located on either side of the front bumper. The appellants claimed to have no knowledge of the presence of this money and disclaimed their ownership to it; consequently, the cash was forfeited. No criminal charges were brought against appellants.

The jury ultimately convicted appellants of the trafficking charges, and the trial court denied their respective motions for new trial. These consolidated appeals follow.

1. We begin by affirming that the evidence set forth supra, construed in the light most favorable to the guilty verdict, was sufficient to sustain appellants’ convictions on trafficking in cocaine and Betancourt’s conviction on obstructing a law-enforcement officer.

2. Appellants both argue that the trial court erred in denying their motions to suppress the drug evidence because the search was unlawful, albeit for different reasons. We will address each of their arguments in turn.

When reviewing the trial court’s denial of a motion to suppress, “the evidence is construed most favorably to uphold the court’s findings and judgment.” And if there is any evidence to support the trial court’s findings on disputed facts and credibility, “they will not be disturbed unless clearly erroneous.” We consider both the trial testimony and the testimony from the motion-to-suppress hearing when reviewing the trial court’s ruling. With these guiding principles in mind, we turn now to appellants’ respective enumerations of error.

(a) Betancourt does not challenge the legality of the traffic stop but argues instead that the stop and his detention were impermissibly prolonged when the officer’s initial investigation into the traffic violations evolved into a drug investigation. We disagree.

The Fourth Amendment’s protection of a person’s right to be secure against unreasonable searches and seizures extends to the investigatory stop of a vehicle, which “cannot be unreasonably prolonged beyond the time required to fulfill the purpose of the stop.” A reasonable stop, however, generally includes

the time necessary to verify the driver’s license, insurance, registration[;]... to complete any paperwork connected with the citation or a written warning!;] [and] ... to run a computer check to determine whether there are any outstanding arrest warrants for the driver or the passengers.

And while performing these tasks, the officer may question the occupants and request consent to conduct a search of the vehicle, so long as the officer’s questioning does not impermissibly prolong the otherwise lawful detention. Thus, no constitutional violation occurs so long as “the purpose for the detention is legitimate, the duration of the detention remains reasonable, and the investigation remains diligent throughout.”

And here, it is undisputed that the officer was still in the process of conducting the traffic investigation when appellants consented to the search of the vehicle. Specifically, the officer had not yet received the computer information confirming appellants’ identities and the status of Betancourt’s license — which he was actively pursuing, and which he needed in order to issue the traffic citations. And although a delay in the computer response time would not justify appellants’ detention indefinitely, their consent to search the vehicle was obtained approximately 20 minutes after the initial stop, upon the arrival of the translating officer. Under these circumstances, we agree with the trial court that the detention was not unreasonably prolonged beyond the time required to fulfill the purpose of the traffic stop.

(b) Hernandez contends that the scope of the officer’s search exceeded the scope of appellants’ consent to search the vehicle. In support of this argument, he relies on his voluntary offer to allow the officer to “check” the vehicle and asserts that his statement did not authorize a complete search. But after Hernandez made the voluntary offer and Betancourt gave his contingent consent to search, the officer returned to Hernandez and specifically asked if the vehicle contained “guns or anything illegal,” including “drugs or currency or anything of that nature.” Hernandez denied the presence of the aforementioned items and consented to a search of the vehicle. Thus, Hernandez gave consent to “search” the vehicle, and his consent, which was not limited in scope, was given in direct response to the officer’s query as to the presence of illegal drugs. Moreover, at no time did either appellant object to the scope of the search or withdraw his consent as the search proceeded. Accordingly, the trial court did not err in denying Hernandez’s motion to suppress on this basis.

3. Appellants contend that the trial court erred by admitting similar-transaction evidence relating to the North Carolina traffic stop and seizure of the currency. The State gave notice of its intent to use the evidence to prove plan, scheme, bent of mind, and course of conduct. And prior to its admission, the trial court conducted a hearing in accordance with Uniform Superior Court Rule 31.3 (B), after which it admitted the evidence.

We review the trial court’s decision to admit similar-transaction evidence under an “abuse of discretion standard and review the court’s factual findings as to the similarity of the incidents under a clearly erroneous standard.” As before, appellants each assert error on different grounds, which we will address in turn.

(a) Betancourt argues that the trial court’s ruling was erroneous because the North Carolina incident was not sufficiently similar to the present crime to warrant its admission. We disagree.

Before similar-transaction evidence maybe introduced, the State must make the following three affirmative showings: (1) the evidence is being offered for a proper purpose; (2) the evidence is sufficient to establish that the defendant committed the independent offense or act; and (3) “there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.” And when analyzing whether the prior act is sufficiently similar to the crime charged, “[t]he proper focus is on the similarity, not the differences, between the separate [act] and the crime in question.”

In both of the incidents at issue, appellants were traveling together on interstates in southern states, and were driving in vehicles (1) registered in Massachusetts, (2) with dark-tinted windows, (3) with a single key in the ignition, (4) containing religious insignia throughout, and (5) containing special compartments hiding shrink-wrapped items. Moreover, the North Carolina traffic stop occurred as appellants were heading southbound on an interstate merging into Interstate 85 — a major drug thoroughfare — with a sum of hidden cash (nearly $200,000) large enough to purchase a significant quantity of narcotics. And during the stop at issue, appellants were headed northbound on Interstate 85 with a significant quantity of hidden narcotics valued at approximately $125,000. And since one of the main issues presented in the case sub judice is whether appellants knew that the drugs were hidden in their vehicle, we have little trouble concluding that the North Carolina incident was sufficiently similar to the current crime such “that proof of the former tends to prove the latter,” and the trial court’s ruling in that regard is not clearly erroneous. Finally, we flatly reject Betancourt’s contention that the State’s failure to prove that the North Carolina K9 alerted specifically to the recent presence of cocaine, as opposed to some other kind of narcotic, rendered it impossible to prove the requisite degree of similarity.

(b) Hernandez asserts that the similar-transaction evidence was inadmissible because the State failed to prove that the forfeited money in the North Carolina traffic stop was the product of a lawful search and seizure. During the trial, the State presented testimony from the North Carolina K9 officer who had searched appellants’ vehicle and discovered the hidden compartments, but was unable to call the officer who had initiated the stop because he was on vacation on the date of trial. And because the State was unable to prove the reasons for the stop and that it was lawful, Hernandez contends that evidence of the resulting seizure in that case should have been excluded.

Assuming arguendo that appellants have not already waived their opportunity to contest the stop of their vehicle by disclaiming and forfeiting the seized money, we nevertheless conclude that the purposes of the exclusionary rule would not be furthered by applying it to the facts in the present case.

The Fourth Amendment to the United States Constitution protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” But this amendment “says nothing about suppressing evidence obtained in violation of [same].” Indeed, as the Supreme Court of Georgia recently explained, while “[t]he exclusionary rule is a judicially created remedy adopted to protect Fourth Amendment rights by deterring illegal searches and seizures,” it is not intended to “cure the invasion of the defendant’s rights which he has already suffered, and it does not proscribe the introduction of illegally seized evidence in all proceedings or against all persons.” Rather, the rule applies only when “its remedial objectives are thought most efficaciously served.”

In this respect, the Supreme Court of the United States has recently stressed that

[r]eal deterrent value is a necessary condition for exclusion, but it is not a sufficient one. The analysis must also account for the substantial social costs generated by the rule. Exclusion exacts a heavy toll on both the judicial system and society at large. It almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence. And its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment. Our cases hold that society must swallow this bitter pill when necessary, but only as a last resort. For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs.

Consistent with this directive, the Supreme Court of Georgia has instructed that when evaluating whether the exclusionary rule should apply, we are to “weigh the likelihood of deterrence against the costs of withholding information in the truth-seeking process.” And in the context of similar transactions, evidence of prior acts or offenses committed by a defendant is generally “irrelevant and inadmissible in a trial for a different crime.” But such evidence is admissible when it demonstrates

a system of mutually dependent crimes; or is evidence of guilty knowledge; or may bear upon the question of the identity of the accused, or articles connected with the offense; or is evidence of prior attempts by the accused to commit the same crime upon the victim of the offense for which he stands charged; or where it tends to prove malice, intent, motive, or the like, if such an element enters into the offense charged.

The benefit of and, conversely, the potential cost of withholding, similar-transaction evidence is evident in a case such as this, in which appellants’ defense is one of unwavering ignorance as to the presence of the hidden compartment and the narcotics contained therein. Suffice it to say, this excuse is much harder to believe twice.

Moreover, it is unlikely that the application of the exclusionary rule here would deter illegal searches and seizures in Georgia to any appreciable degree. Indeed, the notion of there being any meaningful deterrent effect from applying the exclusionary rule in a Georgia criminal proceeding as a result of evidence unlawfully obtained by law enforcement in a. foreign jurisdiction is fanciful at best. To be sure, every law-enforcement officer in Georgia is armed with the knowledge that the manner in which he or she conducts a search will “affect the prosecution’s ability to secure a conviction in a criminal trial,” and this knowledge significantly deters the use of unlawful searches and seizures in our state. But there is no reason to assume that applying the exclusionary rule to evidence stemming from the unlawful acts of a law-enforcement officer from a foreign state will do anything to advance the rule’s remedial objectives here in Georgia. Thus, because the rule’s deterrence benefits are so clearly outweighed by the costs of withholding the similar-transaction evidence from the truth-seeking process, the trial court did not err in admitting the subject evidence in this case.

4. Finally, appellants argue that their respective trial counsel rendered ineffective assistance. In order to establish this claim, each appellant must prove both that his trial counsel’s performance was deficient and that this deficiency prejudiced his defense such that a reasonable probability exists that the outcome at trial would have been different. In the absence of both showings, “it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.” And there is a strong presumption that trial counsel’s performance “falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy.” Thus, we will affirm the trial court’s ruling that appellants were not denied effective assistance of counsel unless that determination is clearly erroneous.

(a) Betancourt argues that his trial counsel was ineffective in several respects. We disagree.

(i) Betancourt first contends that his trial counsel neglected “to engage meaningfully and reasonably in the adversarial process” by failing to adequately investigate the case, communicate with him pretrial, and prepare for trial. But during the hearing on the motion for new trial, Betancourt’s trial counsel testified that he visited with Betancourt twice in jail and met with him on three separate occasions at various pretrial hearings. Additionally, Betancourt’s trial counsel reviewed discovery, interviewed witnesses, litigated a motion to suppress, and argued against the admission of the similar-transaction evidence.

And while it is certainly true that, as a result of the language barrier, trial counsel needed an interpreter to communicate with Betancourt and did not provide him with a copy of the State’s discovery, this in no way prevented counsel from (1) explaining to Betancourt the allegations and evidence against him, (2) making sure that Betancourt understood the maximum sentence he was facing, or (3) discussing with him his defense — namely, that he was unaware of the drugs.

Although Betancourt clearly desired more time and attention from his trial counsel, “[t]here is no magic amount of time which a counsel must spend in preparation for trial in order to provide a client with adequate counsel.” And Betancourt has failed to point to any evidence or defenses that could have been presented had his counsel devoted more time to him and/or in the preparation of his case. Rather, Betancourt’s trial counsel is an experienced criminal defense attorney who was familiar with the applicable law, was not surprised by any of the evidence presented during the trial, and stood prepared to present Betancourt’s straight-forward defense. Under these circumstances, Betancourt has failed to show that his trial counsel’s performance was deficient or that his defense was prejudiced as a result of his counsel’s conduct.

(ii) Betancourt further argues that his counsel was deficient in failing to reassert his previously made objections to the admission of both the drug evidence and the similar-transaction evidence at the time those items were tendered at trial. We need not address the merits of these arguments, however, because as set forth in Divisions 2 and 3, supra, the challenged evidence was properly admitted, and any additional objections to its admission would have been futile.

Decided June 12, 2013

G. Richard Stepp, for appellant (case no. A13A0289).

PageA. Pate, JessB. Johnson, for appellant (caseno. A13A0290).

Daniel J. Porter, District Attorney, Karen M. Harris, Assistant District Attorney, for appellee.

(b) Hernandez claims that his trial counsel was ineffective in that he failed to file a written motion to suppress the similar-transaction evidence prior to trial, instead relying solely on his argument in opposition to its admission during the Uniform Superior Court Rule 31.3 (B) hearing. We first note that Hernandez admittedly cites no authority mandating that his trial counsel file a written pretrial motion. But regardless, as set forth in Divisions 3 and 4 (a) (ii), supra, any pretrial motion as to the similar-transaction evidence would have been futile, and counsel was not deficient for failing to make a futile motion.

For all of the foregoing reasons, we affirm appellants’ convictions in both cases.

Judgments affirmed.

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

        See King v. State, 317 Ga. App. 834, 836 (733 SE2d 21) (2012).

       The K9 officer explained that the dog was capable of detecting both the scent of narcotics themselves and the residual scent left in a location where narcotics had recently been located.

        See OCGA § 16-13-31 (a) (1) (“Any person who knowingly... brings into this state or who is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine .. . commits the felony offense of trafficking in cocaine. . ..”).

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

        Davis v. State, 304 Ga. App. 355, 356 (1) (696 SE2d 381) (2010) (punctuation omitted).

        Id. (punctuation omitted).

        See id.

        Sommese v. State, 299 Ga. App. 664, 668 (1) (683 SE2d 642) (2009); see Salmeron v. State, 280 Ga. 735, 736 (1) (632 SE2d 645) (2006).

        Sommese, 299 Ga. App. at 669 (1) (b) (punctuation omitted); see Salmeron, 280 Ga. at 737 (1) (“It does not unreasonably expand the scope or duration of a valid traffic stop for an officer to prolong the stop to immediately investigate and determine if the driver is entitled to continue to operate the vehicle by checking the status of the driver’s license, insurance, and vehicle registration.” (punctuation omitted)); Giles v. State, 284 Ga. App. 1, 4 (1), n.1 (642 SE2d 921) (2007).

        See Salmeron, 280 Ga. at 736 (1) (“[T]he dispositive factor... is not the nature or subject of the officer’s questioning, but whether that questioning took place during [an] otherwise lawful detention for committing the traffic violations in the officer’s presence];] [i]f a driver is questioned and gives consent while he is being lawfully detained during a traffic stop, there is no Fourth Amendment violation.”).

        Williams v. State, 233 Ga. App. 70, 72 (1) (503 SE2d 324) (1998).

        See Arroyo v. State, 309 Ga. App. 494, 496-97 (3) (711 SE2d 60) (2011) (questioning did not extend duration of driver’s detention when consent to search was requested and given during the time the officer was issuing traffic citations); State v. Williams, 264 Ga. App. 199, 203-04 (590 SE2d 151) (2003) (26-minute delay while officer attempted to determine whether driver had an outstanding warrant did not unreasonably prolong stop); Williams, 233 Ga. App. at 71-72 (1) (35-minute delay while officer conducted a computer check for outstanding warrants on driver was reasonable); see also Hall v. State, 306 Ga. App. 484, 486 (2) (702 SE2d 483) (2010). Compare Nunnally v. State, 310 Ga. App. 183, 186-87 (2) (713 SE2d 408) (2011) (detention impermissibly prolonged when officer abandoned investigation into traffic infraction to focus solely on his efforts to wait for a K9 unit); State v. Long, 301 Ga. App. 839, 841 (689 SE2d 369) (2010) (prolonged detention unreasonable when officer detained occupants for 20 minutes after he fulfilled the purpose of the initial stop).

        See Caster v. State, 210 Ga. App. 809, 810 (3) (437 SE2d 608) (1993) (consent to search vehicle after denying the presence of drugs extended to the removal of the loose rear-passenger seat); Barnwell v. State, 197 Ga. App. 116, 117 (2) (397 SE2d 717) (1990) (consent to search vehicle extended to the window well and door panel). Compare Amato v. State, 193 Ga. App. 459, 460 (1) (388 SE2d 54) (1989) (driver’s consent to allow officer, who had “no idea” what he was searching for, to “look inside” vehicle did not extend to the removal of the vent cover).

       Contrary to Hernandez’s assertion, the officer testified that Hernandez was standing at the rear of the vehicle at the time he was searching under the back seat and therefore could have objected or withdrawn his consent. See Caster, 210 Ga. App. at 810 (3); Barnwell, 197 Ga. App. at 117 (2). It was only after the officer discovered what he believed to be a hidden compartment that he moved Hernandez to the back of the patrol car.

       We note that for trials conducted after January 1,2013, the new Evidence Code permits the admission of similar-transaction evidence for the purpose of proving “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,” but no longer for the purpose of proving ‘bent of mind” or “course of conduct.” OCGA § 24-4-404 (b). See generally Harvey v. State, 292 Ga. App. 792, 793 (2) (741 SE2d 625) (2013); see also Ronald L. Carlson & Michael Scott Carlson, Carlson on Evidence 55 (2013-2014 ed.) (“In terms of OCGA 24-4-404 (b), the primary change from prior Georgia law relates to the non-incorporation of ‘bent of mind’ and ‘course of conduct’ as specific categories and identifies federal rule topics like preparation, plan and additional related grounds as reasons for admitting ‘other crimes’ evidence . .. .”).

        See McNaughton v. State, 290 Ga. 894, 895 (2) (725 SE2d 590) (2012).

        See Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

        Wayne v. State, 269 Ga. 36, 39 (3) (495 SE2d 34) (1998); see Garcia v. State, 319 Ga. App. 751, 758 (3) (738 SE2d 333) (2013).

        Williams, 261 Ga. at 642 (2) (b); see Crenshaw v. State, 248 Ga. App. 505, 509 (3) (546 SE2d 890) (2001) (“[T]he issue of admissibility of extrinsic transactions has never been one of mere similarity. It is, rather, relevance to the issues in the trial of the case.”); see also Jones v. State, 253 Ga. App. 376, 378 (2) (559 SE2d 119) (2002) (holding that evidence of appellant’s prior guilty plea to possession of marijuana with the intent to distribute was relevant and admissible in a later case for the same crime when he claimed not to know about the marijuana found in his house).

        See Branch v. State, 255 Ga. App. 596, 598 (565 SE2d 910) (2002) (holding that “there is no requirement that the drug allegedly being distributed or possessed in the indicted offense be the same drug distributed or possessed in the similar transaction”).

       We note that no evidence was presented calling into question the legality of the stop.

       U. S. Const., amend. IV.

        Davis v. United States, _ U. S. _ (131 SCt 2419, 180 LE2d 285) (2011).

        State v. Thackston, 289 Ga. 412, 413 (1) (716 SE2d 517) (2011).

        Id. (citation and punctuation omitted).

        Id. (punctuation omitted); see also Davis, 131 SCt at 2426-27 (“Where suppression fails to yield appreciable deterrence, exclusion is clearly unwarranted”) (citation and punctuation omitted).

        Davis, 131 SCt at 2427.

        Thackston, 289 Ga. at 413 (1).

        Pareja v. State, 286 Ga. 117, 119 (686 SE2d 232) (2009).

        Williams, 261 Ga. at 642 (2) (b), n.2.

        Thackston, 289 Ga. at 415 (1).

        Cf. id. at 415-16 (1) (applying the balancing test to hold that the exclusionary rule does not apply to probation revocation hearings); see also Pennsylvania Bd. of Probation & Parole v. Scott, 524 U. S. 357, 363-69 (II) (118 SCt 2014, 141 LE2d 344) (1998) (exclusionary rule does not apply to parole revocation hearings); I. N. S. v. Lopez-Mendoza, 468 U. S. 1032, 1040-50 (IV) (104 SCt 3479, 82 LE2d 778) (1984) (exclusionary rule not applicable in civil deportation proceedings); United States v. Janis, 428 U. S. 433, 447-60 (IV) (96 SCt 3021, 49 LE2d 1046) (1976) (no exclusionary rule in civil tax proceedings); United States v. Calandra, 414 U. S. 338, 349-52 (IV) (94 SCt 613, 38 LE2d 561) (1974) (exclusionary rule does not apply in grand-jury proceedings).

        See Smith v. State, 304 Ga. App. 846, 847 (698 SE2d 355) (2010); see also Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984).

        Smith, 304 Ga. App. at 847 (punctuation omitted).

        Id. (punctuation omitted).

        Id.

       Betancourt also raises in a separate enumeration that the trial court erroneously failed to adequately address his concerns regarding his appointed counsel in a pretrial hearing that the court conducted for that purpose. We need not consider that allegation of error separately, however, because Betancourt’s post-trial counsel raised the issue on motion for new trial, and the post-trial hearing cured any alleged error by the trial court in the pretrial hearing. See Ware v. State, 307 Ga. App. 782, 787-88 (2) (b) (706 SE2d 143) (2011) (“[A] trial court’s error in refusing to conduct a hearing [on a defendant’s motion for appointment of new counsel] can be cured by a post-trial hearing before the judge in the trial court.” (punctuation omitted)).

        Daniels v. State, 296 Ga. App. 795, 799 (5) (a) (676 SE2d 13) (2009) (punctuation omitted); King v. State, 287 Ga. App. 375, 378 (2) (b) (651 SE2d 496) (2007) (“The complaint of insufficient meetings with trial counsel is not dispositive, as there exists no magic amount of time which counsel must spend in actual conference with his client.” (punctuation omitted)).

        See Daniels, 296 Ga. App. at 799-800 (5) (a); King, 287 Ga. App. at 378 (2) (b).

        See Ventura v. State, 284 Ga. 215, 218 (4) (663 SE2d 149) (2008) (“The failure to pursue a futile objection does not amount to ineffective assistance.” (punctuation omitted)).

        See id.


text:
    A13A0419.
    GEORGIA DEPARTMENT OF TRANSPORTATION v. JACKSON.
    (744 SE2d 389)
   RAY, Judge.

Appellee Clyde W. Jackson filed this inverse condemnation case against the Georgia Department of Transportation (“DOT”), contending that the DOT took a property interest from him, without compensation, when the DOT closed a driveway that led to his property as part of its work on Highway 113 in Bartow County. The driveway led from Highway 113 across a tract of land with no record ownership and over a railroad crossing before reaching Jackson’s property. Jackson argued that he had acquired a prescriptive easement over the driveway, including the railroad crossing, and thus had a property interest for which DOT failed to compensate him. The DOT contends that Jackson failed to provide notice to the railroad of his adverse use of the railroad crossing, and thus, he had only a revocable license in the railroad crossing, which is not a compensable property interest. The case proceeded to trial, and the jury found that Jackson had obtained a prescriptive easement over the entire driveway, including the railroad crossing, and awarded him compensatory damages. The trial court denied DOT’s motion for directed verdict made at the close of evidence and its motion for judgment notwithstanding the verdict, or in the alternative, for a new trial. The DOT appeals from that order. Finding no error, we affirm.

On appeal, our review of the trial court’s denial of these motions is “circumscribed by the ‘any evidence’ standard.” (Citation omitted.) Trammell v. Whetstone, 250 Ga. App. 503 (552 SE2d 485) (2001). Further,

[i]n determining whether the trial court erred by denying defendant’s motion for a directed verdict and motion for judgment n.o.v., this [C]ourt must view and resolve the evidence and any doubt or ambiguity in favor of the verdict. A directed verdict and judgment n.o.v. are not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.

(Citation omitted.) Id.

Viewed in this light, the pertinent evidence at trial shows that Jackson filed the present inverse condemnation case after the DOT eliminated a driveway serving his property in Bartow County during highway improvements in 2007. The driveway led from Highway 113 to Jackson’s property, crossing over a tract of land without record ownership and over a railroad crossing owned by CSX Railroads (“CSX”). Jackson testified that he was 76 years old, that he and his family had used and maintained the driveway all his life, and until recently, the driveway had been the only means of ingress and egress to his property. Jackson provided evidence that the driveway was less than 20 feet wide, that its location had never changed, and that he and his family had kept the driveway open and in repair by mowing, grading, and graveling it.

Aerial photographs were introduced into evidence showing that the driveway and the railroad crossing have existed in that place for at least 30 years. When CSX upgraded and expanded its existing tracks to serve an electric power plant constructed in the 1970s, CSX paid Jackson to move his fence and as part of the transaction; CSX destroyed and then restored the section of the driveway that crosses the railroad.

On February 1, 1985, Jackson and his father leased a portion of the property to Buckeye Gas Products, a propane gas company. Buckeye operated a delivery facility on the portion of Jackson’s land that was adjacent to the railroad crossing, and the facility was visible from the railroad crossing. The lease was filed in the official deed records of Bartow County. The lease contract explicitly stated that the Jacksons were granting Buckeye the right of ingress and egress across the driveway and railroad crossing to get to the property. During the term of the lease, trucks regularly used the driveway and the railroad crossing as a means of ingress and egress to Highway 113. Buckeye placed prominent signs at the railroad crossing with instructions for its drivers coming and going over the tracks.

David Archer testified as an expert on the history of Jackson’s land and the driveway that served it. Archer is a local historian and attorney who is familiar with the land and deed records of Bartow County back to the 1830s, and who has personal experience with the history of Jackson’s land. Archer testified that he had concluded, based upon his examination of land records, that CSX had obtained the land for its tracks and the railroad crossing near Jackson’s property through adverse possession. He further testified that there was no owner of record over the driveway leading to Jackson’s property and that, in his opinion, Jackson had obtained prescriptive rights in the driveway and railroad crossing.

In 2007, when the DOT eliminated the driveway leading from Jackson’s driveway to Highway 113 during highway improvements, it did not contact Jackson prior to eliminating the driveway or compensate him in any way. Jackson filed the present lawsuit seeking damages for inverse condemnation of his property interest in the driveway.

Following the close of evidence, the DOT moved for a directed verdict on the ground that Jackson had failed to put CSX on notice of his adverse claim to a prescriptive easement across the railroad crossing. The trial court denied this motion, and the jury awarded a verdict in favor of Jackson. The trial court denied the DOT’s motion for judgment notwithstanding the verdict. The DOT appeals from the denial of those motions.

In its sole enumeration of error, the DOT argues that the trial court erred in denying its motions for directed verdict and for a judgment notwithstanding the verdict because Jackson failed to prove a prescriptive easement over the railroad crossing. The DOT asserts that Jackson failed to show that CSX was on notice that his use of the railway was adverse, rather than permissive.

“An inverse condemnation claim arises when the governmental entity creates a condition on private property . . . that amounts to a taking without compensation.” (Punctuation and footnote omitted.) Solid Equities v. City of Atlanta, 308 Ga. App. 895, 897 (2) (710 SE2d 165) (2011). Jackson claims to have acquired a property interest over the railroad’s portion of the driveway through prescriptive easement. The DOT, on the other hand, argues that Jackson does not have a property interest in the railroad crossing, but instead has only a revocable license.

Whether a plaintiff has established a prescriptive easement over a roadway is a factual question. Pichulik v. Ball, 270 Ga. App. 656, 661 (2) (607 SE2d 247) (2004). “Just as fee simple title to land can be acquired by prescription, so too can an easement.” Chancey v. Ga. Power Co., 238 Ga. 397, 398 (1) (233 SE2d 365) (1977). “Prescriptive rights must be strictly construed, and the party asserting such rights must satisfy certain established criteria.” (Footnote omitted.) Pichulik, supra. To establish a prescriptive claim to the driveway, including CSX’s railroad crossing, Jackson bore the burden of showing that his “uninterrupted use of the roadway for seven or more years, the way was not over twenty feet wide, and that he has kept the way open and in repair for at least seven years.” (Citation and punctuation omitted.) Trammell, supra at 505 (1). See OCGA §§ 44-9-1; 44-9-40 (a). Our Supreme Court has held that the requirement that a prescriber keep the roadway in repair “originated in an age when private ways were unpaved and of necessity had to be repaired in order that the use thereof might be continued.” Eileen B. White & Assocs. v. Gunnells, 263 Ga. 360 (434 SE2d 477) (1993). Accordingly, our Supreme Court has concluded that the “keeping in repair” requirement to establish a prescriptive easement “does not mean... that it is incumbent upon the prescriber to make repairs where none is needed.” (Citation omitted.) Id. at 361. Rather, the prescriber must “give some notice [of his adverse use], actual or constructive, to him against whom he intends to prescribe. The gist of the requirement as to repairs is not so much the repairs as the notice which is given by the repairs.” (Citation and punctuation omitted; emphasis in original.) Id. Accord Waters v. Ellzey, 290 Ga. App. 693, 697 (3) (660 SE2d 392) (2008) (a prescriber cannot prove that he owns a prescriptive easement if he has failed to show that his use of the property sought to be prescribed was adverse rather than permissive). “The notice required is notice of the assertion of an adverse use, under claim of right, as distinguished from a mere permissive use.” (Punctuation and footnote omitted.) De Castro v. Durrell, 295 Ga. App. 194, 202 (2) (b) (671 SE2d 244) (2008).

Citing to Yawn v. Norfolk Southern R. Co., 307 Ga. App. 849 (706 SE2d 197) (2011), the DOT argues that Jackson had not given notice to CSX, by repairs or otherwise, of his adverse claim to the railroad crossing. In Yawn, this Court upheld a grant of summary judgment to a railroad denying that Yawn had a prescriptive easement over a railroad crossing even though Yawn and his predecessors in title had used the railroad crossing for 75 years with no obj ection, as he had not given notice to the railroad, through repairs or otherwise, that he had changed from a permissive licensee to a person claiming a prescriptive right. Id. at 852 (2).

Decided June 12, 2013.

Samuel S. Olens, Attorney General, Dyer & Rusbridge, Robert M. Dyer, for appellant.

In the present case, unlike in Yawn, no evidence was presented at trial showing that Jackson’s use of the railroad crossing originated by permission of CSX or any of its predecessors. Further, unlike in Yawn, Jackson has provided evidence sufficient to support the jury’s finding that CSX was on notice of his adverse use of the railroad crossing. See Trammell, supra (the trial court’s denial of motions for a directed verdict or for a judgment notwithstanding the verdict are reviewed under the “any evidence” standard). Jackson provided expert testimony that the 1985 lease of Jackson’s property to Buckeye Gas Products, which contained an explicit grant of the right of ingress and egress of the driveway and was recorded in the deed records of the Superior Court, provided constructive notice that he was claiming a right of ownership over the driveway and railroad crossing and leasing that right to a third party. Such notice of an adverse claim was also provided by the open and obvious nature of that company’s active operations, including the size of its facility, the close proximity to the railroad crossing, the regular movement of trucks over its driveway and its prominent posting of signage with instructions to its drivers coming and going over the tracks. Further, there was evidence that the railroad had notice of the adverse nature of Jackson’s use and claim of right over the railroad crossing when it restored and upgraded the tracks in the 1970s. The record shows that CSX sought permission from Jackson to expand its tracks and replaced the track crossing after upgrading its rail. This evidence was sufficient to support the jury’s finding that Jackson had acquired a prescriptive easement over the railroad crossing and thus was entitled to compensation from the DOT when the DOT took that property interest from him by closing the driveway. See Trammell, supra at 507 (1).

Judgment affirmed.

Barnes, P. J., and Miller, J., concur.

Vaughan & Evans, Donald C. Evans, Jr., for appellee.

       “An owner’s acquiescence in the mere use of his road establishes, at most, a revocable license.” (Citation omitted.) Eileen B. White & Assocs. v. Gunnells, 263 Ga. 360, 362 (434 SE2d 477) (1993).


text:
    A13A0491.
    DAVIS v. THE STATE.
    (744 SE2d 393)
   Dillard, Judge.

Following his conviction for possession of marijuana in a stipulated bench trial, Johnny Kimble Davis appeals the denial of his motion to suppress, arguing that the trial court erred in not ruling that the police officer impermissibly extended his detention after a traffic stop. For the reasons noted infra, we affirm.

Construing the evidence most favorably to uphold the trial court’s findings and judgment, the record shows that on January 24, 2012, Davis was a passenger in a vehicle traveling on 1-75 in Henry County when a police officer stopped the vehicle for failure to maintain lane. On approaching the vehicle, the officer detected the odor of alcohol, and he asked the driver to exit the vehicle to make sure that she was not impaired. After observing that the driver appeared to be “steady on her feet,” the officer decided only to issue a warning citation for failure to maintain lane. The officer then, following normal procedure, ran the driver’s license information through dispatch to make sure that the license was valid and that the driver did not have any outstanding warrants.

While the officer waited to hear back from dispatch, he spoke with the two passengers in the vehicle to obtain their identification information and run a warrant search on each of them as well. Davis, the front passenger, gave his name when asked, but the rear passenger proved to be less cooperative. And after the rear passenger refused to give his information, the officer walked around the vehicle, opened the car door to make contact with the passenger, and immediately detected the smell of burnt marijuana. At that moment, the return from dispatch came over the radio. Thereafter, and incidental to his detection of the odor of marijuana, the officer performed a search of the car and discovered less than one ounce of unburnt marijuana, which Davis later admitted belonged to him.

Davis was subsequently charged with possession of a controlled substance and filed a motion to suppress the marijuana discovered as a result of the officer’s search. Specifically, Davis contended that the officer completed the driver’s citation before he began to question the passengers and, therefore, that the questioning and resulting search exceeded the scope of the traffic stop. Conversely, the State argued that the traffic stop was not concluded because the officer had not yet issued the citation to the driver, nor had he received the dispatch return when he detected the odor of marijuana.

During a hearing on the motion, the officer testified that he detected the odor of burnt marijuana before receiving the return from dispatch. And when defense counsel confronted him with statements from his report that suggested two different times when he initially smelled the marijuana (both being after the dispatch return), the officer testified that only one of those statements was indeed erroneous. On redirect, the officer again asserted that he smelled the marijuana before he received the return from dispatch. The trial court then denied Davis’s motion, and the matter proceeded to a stipulated bench trial, after which Davis was convicted of the offense. This appeal follows.

At the outset, we note that in reviewing a trial court’s decision on a motion to suppress, “we construe the evidence most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility of the witnesses are adopted unless they are clearly erroneous.” Further, because the trial court is the trier of fact, its findings “will not be disturbed if any evidence supports them”; but the trial court’s application of law to undisputed facts is reviewed de novo. With these guiding principles in mind, we turn now to Davis’s enumeration of error.

In asserting error, Davis does not contest the validity of the stop itself, but instead argues that the trial court erred in denying his motion to suppress because the officer’s actions during the stop unlawfully and impermissibly extended his detention. We disagree.

In the course of a traffic stop, both the driver and any passengers are considered “seized” within the meaning of the Fourth Amendment to the United States Constitution, and both the driver and the passenger are entitled to the protections of that amendment. In this regard, an officer’s actions at 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 [that] stop.” Specifically, we consider two elements in determining whether a stop has been impermissibly extended: (1) the actions taken must be “reasonably related in scope” to the initial justification for the stop and (2) they must not unreasonably prolong the detention.

Here, the officer’s actions were reasonably related to the circumstances of the traffic stop. The officer questioned the passengers in order to obtain their information to run a warrant search, which is exactly the type of minimally intrusive measure that is acceptable during a traffic stop. And because the officer’s actions were reasonably related to the scope of the stop, the only way they could have impermissibly extended Davis’s detention is if they unreasonably prolonged that detention.

In this regard, a stop is not unreasonably prolonged so long as it is “limited in duration to the time reasonably necessary to accomplish” its purpose. And the time reasonably necessary to accomplish the purpose of a traffic stop “includes the time necessary to verify the driver’s license, insurance, registration, and to complete any paperwork connected with the citation or a written warning.” It also includes the time necessary to “run a computer check to determine whether there are any outstanding arrest warrants for the driver or the passengers.” Thus, the dispositive issue in the case sub judice is whether the officer smelled the marijuana prior to completing his investigation into the traffic violation.

The determination as to when the officer received a warrant return is, of course, a question of fact, and a finding of fact by the trial court should not be disturbed if there is any evidence to support it. Here, there is evidence to support the trial court’s finding because the officer testified that he questioned the passengers and detected the odor of marijuana before receiving the results of his warrant query. And while there were discrepancies in the officer’s testimony at the motion hearing, “the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous,” and we are not at liberty to “usurp the authority of the trial judge to consider . . . credibility-related evidence in reaching its decision.” The trial court, having heard all of the testimony, made its determination as to the facts, and we decline to disturb the court’s finding that the officer received the warrant results only after questioning the occupants and detecting an odor of marijuana.

Decided June 12, 2013.

Lister & Holt, Timika W. Dennis, for appellant.

John A. Pipkin III, Solicitor-General, Brittany L. A. LaValle, Assistant Solicitor-General, for appellee.

Accordingly, we conclude that (1) the officer did not impermissibly extend Davis’s detention, and (2) the officer’s questioning of Davis and the other passenger neither constituted an extension of the scope of the detention nor unreasonably prolonged the search because it occurred within the time necessary to complete the warrant check.

For all the foregoing reasons, the judgment of the trial court is affirmed.

Judgment affirmed.

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

        See Humphreys v. State, 304 Ga. App. 365, 365 (696 SE2d 400) (2010) (“In reviewing a trial court’s order on a motion to suppress, we construe the evidence most favorably to uphold the court’s findings and judgment.”).

        See OCGA § 16-13-30 (j) (1).

        Rocha v. State, 317 Ga. App. 863, 866 (733 SE2d 38) (2012) (punctuation omitted).

        Id.

        Id.

       U. S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to he searched, and the persons or things to be seized.”).

        Chang v. State, 270 Ga. App. 814, 815 (608 SE2d 283) (2004).

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

        Chang, 270 Ga. App. at 815.

        See, e.g., id. at 815-16 (holding that it is reasonable in the interest of officer safety to allow an officer at a traffic stop to obtain identification information from drivers and passengers in order to run a computer check for outstanding warrants); State v. Williams, 264 Ga. App. 199, 203 (590 SE2d 151) (2003) (“[Tjhese checks are minimally intrusive safety measures that do not unreasonably expand the scope of a valid traffic stop... as long as under the circumstances they do not unreasonably prolong the stop.” (punctuation omitted)).

        Chang, 270 Ga. App. at 815 (punctuation omitted); see also Salmeron, 280 Ga. at 736.

        Proctor v. State, 298 Ga. App. 388, 391 (2) (680 SE2d 493) (2009) (punctuation omitted).

        Id.; see also Young v. State, 310 Ga. App. 270, 272-73 (712 SE2d 652) (2011).

        State v. Brown, 278 Ga. App. 457, 459-60 (629 SE2d 123) (2006).

        Id. at 460 (punctuation omitted).

        Id. at 461 (punctuation omitted).


text:
    A13A0552.
    WILLIAMS v. BUTLER et al.
    (744 SE2d 396)
   Dillard, Judge.

Penny Williams was terminated from her job at a Phillips-Van Heusen Corporation (“PVH”) distribution center and applied for unemployment-compensation benefits, which were initially awarded. Following PVH’s challenge, an administrative-hearing officer (“AHO”) reversed the award, and both the Department of Labor Board of Review (the “Board”) and the Superior Court of Cobb County affirmed that decision. Williams now appeals, arguing that the Board improperly based its decision on hearsay evidence and that it erred in finding that she was at fault in causing her termination. For the reasons set forth infra, we reverse.

The record shows that Williams initially worked for PVH from 2006 through December 2009, when she was terminated for fighting with a co-worker. But following an agreement reached between PVH and Williams’s union, she was rehired and returned to work on February 15, 2010. And as a condition of her rehiring, PVH informed Williams that she was on probation for the next 60 days and that any written warning (“write-up”) for a violation of company policy during that time period would result in termination of her employment.

Upon being rehired, Williams was assigned to an “order picking” position in PVH’s distribution center. And although she had worked in a similar position when she was first hired by PVH in 2006, Williams’s most immediate position — and one that she held for a significant period of time prior to her December discharge — was with the company’s shipping department. As a result, her new position required that she undergo specialized training for picking orders in a specific area of the distribution center.

Williams received her training from February 15 through February 17, 2010, but after she completed same, she was assigned to work in a different picking area, where apparently she found the requirements to be somewhat more complex. Consequently, over the course of the next two weeks, she was unable to keep her order-picking error rate under the 2.5 percent threshold mandated by company policy. And at some point during this time period, Williams informed one of the union-shop stewards that she was having difficulty performing her job, but she did not inform her supervisors. Shortly thereafter, on March 3, 2010, Williams was “written up” for exceeding the error-rate threshold for picking orders, and her employment was terminated.

Williams then applied for unemployment-compensation benefits, which were granted on April 2, 2010. PVH challenged this award, and on May 18, 2010, an AHO held a telephonic hearing on the matter, during which only Williams and a PVH human-resource manager testified. One day later, the AHO reversed the benefits award, finding that Williams was ineligible because she (1) had satisfactorily performed the job of picking orders in the past, (2) had received training for her position after being rehired, (3) did not inform a supervisor that she was having difficulties performing the job, and (4) was aware that any written warning during her 60-day probation period would result in termination of her employment.

Williams appealed to the Board of Review, but the Board adopted the AHO’s decision. Shortly thereafter, she filed a petition for judicial review in the Superior Court of Cobb County. Both parties filed briefs, and a hearing was held on the matter but was not transcribed. On July 31, 2012, the superior court entered an order affirming the Board’s decision. Williams then filed an application for discretionary appeal, which we granted. This appeal follows.

At the outset, we note that when a court reviews a decision of the Board that an employee is disqualified for unemployment-compensation benefits, “the factual findings of the Board are conclusive to the extent that they are supported by competent evidence, and the court must affirm the decision of the Board if it is supported by any competent evidence.” Furthermore, this Court’s duty is not to “review whether the record supports the superior court’s decision but whether the record supports the initial decision of the administrative agency.” And on appeal, we will similarly uphold the Board’s factual findings if there is any evidence to support them. With these guiding principles in mind, we turn now to Williams’s specific claims of error.

1. Williams contends that the Board erred in denying her claim for unemployment-compensation benefits on the ground that she was at fault in causing the termination of her employment. We agree and, therefore, reverse the judgments below.

Under OCGA § 34-8-194 (2) (A), no unemployment benefits are due to an individual who is fired “for failure to obey orders, rules, or instructions or for failure to discharge the duties for which the individual was employed as determined by the Commissioner according to the circumstances in the case.” But OCGA § 34-8-194 (2) (B) provides in part:

An individual shall not be disqualified for benefits under subparagraph (A) of this paragraph if, based on the rules and regulations promulgated by the Commissioner, the Commissioner determines . . . [t]he individual made a good faith effort to perform the duties for which hired but was simply unable to do so [or] . . . [t]he individual did not intentionally fail or consciously neglect to perform his or her job duties.

This is consistent with the fact that “Georgia, like the other states of the Union, has a strong public policy favoring payment of unemployment benefits to persons unemployed through no fault of their own.”

Consequently, an employer claiming that a former employee is disqualified from receiving unemployment benefits “bears the burden of proving the grounds for disqualification by a preponderance of the evidence.” Indeed, disqualification is not appropriate unless “the employer shows the discharge was caused by the deliberate, conscious fault of the [employee] ” And as the Supreme Court of Georgia has held “[f]ault means more than mere failure to perform one’s work duties.” As such, an employee who does not perform her work assignment adequately because “she is unable to do so (i.e., not through fault or conscious neglect) cannot be penalized under OCGA § 34-8-[194 (2) (A)].” Furthermore, although we are bound to apply the any evidence standard in these cases, “whether there is fault assignable to a claimant, which is a legal requirement for disqualification, often requires a legal conclusion.”

And here, it is undisputed that Williams was having difficulty satisfactorily performing her job — i.e., picking orders. What is in dispute is whether the problems resulting from Williams’s job performance were due to her inability to perform her job duties proficiently or were instead caused by a conscious neglect on her part, which would justify disqualifying her from unemployment benefits under OCGA § 34-8-194 (2) (A).

Having carefully examined the appellate record, we conclude that there is no evidence contradicting Williams’s contention that her order-picking errors occurred despite her best efforts to perform her job in a satisfactory manner. In fact, her unequivocal testimony was that she tried to do her best in this new position. Moreover, PVH provided no evidence that Williams’s errors were the result of dishonesty, deliberate malfeasance, carelessness, or negligence. Thus, PVH failed to provide any evidence that Williams was at fault for her discharge as contemplated by the relevant statutory provisions and accompanying case law.

Decided June 12, 2013.

Anne B. Carder, David A. Webster, for appellant.

Nevertheless, PVH argues that the Board’s decision should be affirmed because Williams previously picked orders when she was first employed at the company and because she knew she would be discharged if she received any write-ups. We disagree. The fact that Williams previously picked orders does not in and of itself constitute evidence that her picking error rate was the result of anything other than a mere inability to perform the job — particularly when one considers Williams’s uncontradicted testimony that she was assigned to an area that was different from the one in which she was actually trained. Moreover, PVH fails to persuasively explain how Williams’s awareness that she would be discharged for receiving any write-ups equates to her picking error rate being a product of deliberate or conscious fault on her part. And PVH’s extension of this argument — i.e., that the termination of Williams’s employment was more accurately a result of her receiving a write-up rather than her picking errors — merely offers a distinction without a difference. Indeed, the logic of this argument is belied by simply asking whether Williams would have received the write-up if she had adequately performed her picking assignment. The answer, of course, is no. Suffice it to say, the dictates of the stipulation that resulted in Williams being terminated cannot be used to circumvent the statutory provisions governing disqualification from unemployment benefits. Accordingly, we reverse the judgments below and remand this case to the Board for a decision consistent with this opinion.

2. Given our holding in Division 1, supra, we need not address Williams’s contention that the AHO and Board’s decisions denying her unemployment benefits improperly relied on hearsay evidence.

Judgment reversed.

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

Samuel S. Olens, Attorney General, Kimberly B. Lewis, Assistant Attorney General, Constangy, Brooks & Smith, William J. Martin II, Frank L. Butler III, for appellees.

        Teal v. Thurmond, 310 Ga. App. 312, 313 (713 SE2d 436) (2011) (citation omitted).

        Solinet v. Johnson, 280 Ga. App. 227, 228 (633 SE2d 626) (2006) (punctuation omitted).

         Id.

        See OCGA § 34-8-194 (2) (A).

        See OCGA § 34-8-194 (2) (B) (i), (ii).

        Millen v. Caldwell, 253 Ga. 112, 113 (317 SE2d 818) (1984); see OCGA § 34-8-2 (“As a guide to the interpretation and application of this chapter, the public policy of this state is declared to be as follows: economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of this state . . . .”).

        Teal, 310 Ga. App. at 313.

        Davane v. Thurmond, 300 Ga. App. 474, 476 (685 SE2d 446) (2009) (punctuation omitted).

        Millen, 253 Ga. at 113 (punctuation omitted).

        Id.

        Fulton County School Dist. v. Hersh, 320 Ga. App. 808, 813 (1) (740 SE2d 760) (2013) (punctuation omitted).

        See Lamb v. Tanner, 178 Ga. App. 740, 741 (344 SE2d 534) (1986) (holdingthat employee “fault” required to preclude benefits means more than mere failure to perform duties and requires deliberate malfeasance or negligence).

        See id. (reversing denial of unemployment benefits because evidence showed that cashier’s violation of employer’s policy prohibiting overages or shortages in register resulted in cashier’s inability to perform her job duties proficiently rather than from conscious neglect).

        See id. (holding that the fact that cashier had been employed in that position for several years did not constitute evidence that she intentionally failed to comply with the employer’s policy).

        Cf. OCGA § 34-8-250 (“Any agreement by an individual to waive, release, or commute his or her rights to benefits or any other rights under this chapter shall be void. . . .”).