text:
    A12A0617.
    EWUMI v. THE STATE.
    (727 SE2d 257)
   Dillard, Judge.

Following a trial by jury, Deon Tremane Ewumi was convicted of felony obstruction, simple battery, and possession of less than one ounce of marijuana. On appeal from these convictions, Ewumi argues that the trial court erred by (1) denying his motion to suppress, (2) denying his motion for new trial based on insufficient evidence as to each count, and (3) failing to instruct the jury regarding the right to resist an unlawful arrest. Because the trial court erred in denying Ewumi’s motion to suppress evidence based on an unlawful arrest and because the evidence is insufficient, we reverse his convictions.

Viewed in the light most favorable to the jury’s verdict, the record shows that shortly after midnight on March 6, 2011, an officer was dispatched to an apartment complex in what was described as a high-crime area in Clayton County after shots were fired and a bullet entered a residence. Approximately 20 minutes later, the officer encountered 17-year-old Ewumi outside the relevant building while searching for shell casings on the ground. Ewumi was returning to his unit in the building after attending an event at school, and he was walking with a friend when he saw the officer.

Ewumi and his companion emerged from behind a nearby garage, and the officer observed that Ewumi’s head and hands were obscured by a hoodie (i.e., a hooded sweatshirt). The officer approached Ewumi and said that he wanted to ask some questions, but Ewumi did not stop and mumbled an inaudible response before walking away. Thereafter, the officer attempted to close the gap between himself and Ewumi, and Ewumi began to run toward the building. He then ran upstairs to the second floor and tripped as he reached the top.

The officer pursued Ewumi and, immediately after the young man fell, climbed atop him and initiated an “arm-bar” technique to apply handcuffs. Ewumi struggled against the officer to escape, kicking his legs about and throwing his elbows back and forth. Ewumi continued trying to climb toward his apartment, banging on the door and screaming for his mother. Meanwhile, the officer restrained one of his arms and gave verbal commands, but Ewumi continued to struggle. The officer called for backup, applied a taser directly to Ewumi’s body, and eventually restrained and arrested him.

Upon arrival at the police station, an officer noticed that Ewumi was chewing something, which was determined to be a small amount of marijuana wrapped in paper. Thereafter, Ewumi was charged with and convicted of felony obstruction, simple battery, and possessing less than one ounce of marijuana. This appeal follows.

1. Ewumi contends that the trial court erred by denying his motion to suppress evidence based on an unlawful stop and subsequent arrest. We agree.

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.” Moreover, because the trial court sits as the trier of fact, “its findings are analogous to a jury verdict and will not be disturbed if any evidence supports them.” Nevertheless, “we owe no deference to the way in which the court below resolved questions of law.” And in conducting our review, “we may consider trial testimony in addition to the testimony submitted during the motion to suppress hearing.” With these guiding principles in mind, we turn now to an analysis of Ewumi’s argument that his arrest was unlawful.

The Supreme Court of the United States has construed the Fourth Amendment to the United States Constitution so as to set forth three tiers of police-citizen encounters. These encounters involve “(1) communication between police and citizens involving no coercion or detention..., (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.”

In a first-tier encounter, “police may approach citizens, ask for identification, ask for consent to search, and otherwise freely question the citizen without any basis or belief of criminal activity so long as the police do not detain the citizen or convey the message that the citizen may not leave.” But it is well settled that “a citizen’s ability to walk away from or otherwise avoid a police officer is the touchstone of a first-tier encounter.” Indeed, “[e] ven running from police during a first-tier encounter is wholly permissible.” And an individual “may refuse to answer or ignore the request and go on his way if he chooses, for this does not amount to any type of restraint. . . ,”

In a second-tier encounter, even in the absence of probable cause, a police officer may “stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity.” But to do so, the officer must have “more than a subjective, unparticularized suspicion or hunch.” Indeed, the officer’s action “must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion . . . .” Additionally, the officer “must have some basis from which the court can determine that the detention was neither arbitrary nor harassing.”

And here, Ewumi moved to suppress the evidence found as a result of his arrest because he argued that the arrest was unlawful. But after hearing testimony from both the arresting officer and Ewumi, the trial court denied the motion, finding that the initial contact between the officer and Ewumi was a first-tier encounter; the officer’s testimony was more credible; Ewumi made furtive and evasive movements; Ewumi ran from the officer and ignored a command to stop; given the late hour, high-crime location, and ongoing investigation, the encounter elevated to a justified second tier when Ewumi began to flee; and all of these factors made the arrest and subsequent search lawful. We disagree.

Both the testimony at trial and at the motion-to-suppress hearing established the same largely undisputed factual scenario: The officer approached Ewumi and indicated that he wished to speak with him; Ewumi muttered an inaudible reply and continued walking away; the officer approached Ewumi more quickly, asked him to come over, and Ewumi began to run toward his building; Ewumi ignored commands to stop; and a struggle ensued after Ewumi tripped on the stairway and after the officer attempted to handcuff and arrest him. Ewumi explained at both the motion-to-suppress hearing and at trial that he ignored the officer’s commands because he “did nothing wrong” (although he admitted to not wanting the officer to discover the marijuana on his person), was merely trying to reach his home, and had not been informed that the officer was conducting an investigation.

Based on these facts, we agree with the trial court that the initial encounter between Ewumi and the officer — i.e., when the officer first approached Ewumi and indicated that he wished to speak with him — was a first-tier encounter. Indeed, the State has not argued or attempted to show that the initial encounter was a second-tier such that the officer’s conduct was supported by reasonable, articulable suspicion. As such, Ewumi was unquestionably entitled to walk away from same.

And the fact that Ewumi exercised his right to walk away from a first-tier encounter and avoid the officer did not give rise to reasonable, articulable suspicion to instigate a second-tier encounter, which the officer did by quickening his approach toward Ewumi and indicating that compliance with the request might be compelled. Indeed, these facts present a situation that is different from those in which we have held that flight from a first-tier encounter warranted a stop after the citizen voluntarily spoke with an officer, gave suspicious answers to questions, and then fled.

When the officer was asked why he continued to pursue Ewumi, he testified that he became suspicious when Ewumi appeared and began walking toward the building where gunshots were reported; thus, the officer wanted to identify Ewumi. And when pressed to describe what exactly was suspicious about Ewumi, the officer testified that it was after midnight in a high-crime area; Ewumi wore a hoodie that covered his head and obscured his hands in his pockets; he walked in a slumped position; and he stepped away from the officer upon the initial approach. The officer also testified that drugs and weapons are often found on individuals with whom officers make contact in that area, and opined that he continued to approach Ewumi because “[t]he fact that he started to walk away from me indicated that there was more to ... my contact than what I initially knew of.... [Ewumi] was avoiding me for a reason.” But the officer also admitted that Ewumi made no threatening gestures toward the officer upon being approached and did not act as though he had a weapon.

Even when considering the totality of the circumstances, these facts do not amount to an objective, articulable suspicion of criminal activity to warrant a second-tier detention. It is well established that “mere presence in an area of suspected crime is not enough to support a reasonable, particularized suspicion that the person is committing a crime.” Moreover, an officer’s feeling that a person is acting “in a suspicious way does not amount to a particularized and objective basis for suspecting him of criminal activity.” And here, none of Ewumi’s described activities — walking away from the officer, ignoring the officer, being present in a high-crime area (and returning home from a school function), walking in a slumped position, and wearing a hooded sweatshirt in early March — are crimes in and of themselves, “nor are they enough to make an objective determination that [Ewumi] was about to be engaged in criminal activity.” Additionally, the mere refusal to identify oneself to an officer is not a crime.

Furthermore, even if we assumed for the sake of argument that the officer obtained reasonable, articulable suspicion to conduct a second-tier stop after Ewumi began to run away, this is not what ultimately occurred. Indeed, after Ewumi ran toward his building and fell on the stairway, it is undisputed that the officer immediately attempted an arrest solely on the basis of obstruction, which required probable cause. And in evaluating whether an individual’s arrest was constitutionally valid and supported by probable cause, we consider whether

at [the] moment [of arrest] the facts and circumstances within [the officer’s] knowledge and of which [he] had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the person suspected had committed or was committing an offense.

Here, although Ewumi was ultimately arrested for battery after the incident on the stairway, the officer testified that he initially attempted to handcuff and arrest Ewumi for misdemeanor obstruction. And based upon the record, as discussed infra, the officer lacked probable cause to arrest for either alleged offense.

(a) As to obstruction, a person commits such an offense when he or she knowingly and wilfully “obstructs or hinders any law enforcement officer in the lawful discharge of his official duties” or “resists, obstructs, or opposes any law enforcement officer ... in the lawful discharge of his official duties by offering or doing violence to the person of such officer . . . .”

And in the case sub judice, the officer testified that he believed Ewumi committed this offense by hindering his investigation of shots fired and whether there were witnesses, a suspect, or evidence in the area. But as we held supra, Ewumi acted within his rights by avoiding a first-tier encounter, and thus, the officer lacked probable cause to justify an arrest for obstruction. Indeed, because Ewumi had the right to leave the first-tier encounter,

his exercise of that right, even if accomplished by running, cannot constitute obstruction. That is to say, even though the officer [ ] [was] lawfully discharging [his] duties at the time [Ewumi] fled, those official duties during the first-tier encounter did not include detaining [Ewumi] or preventing him from leaving.

Additionally, the officer did not explain to Ewumi that he wished to speak with him as part of a pending investigation, instead only asking that Ewumi come over to answer some questions. Therefore, by exercising his right to leave a first-tier encounter, as a matter of law, Ewumi did not hinder or obstruct the officer’s lawful discharge of his duties, and accordingly, the officer “had no probable cause to arrest for obstruction by flight when the flight was from a first-tier encounter that [Ewumi] had every right to terminate.” Accordingly, the officer’s attempt to arrest Ewumi for obstruction was unlawful because the officer lacked the requisite probable cause that Ewumi committed that offense.

(b) As to battery, the struggle between Ewumi and the officer began when the officer attempted the unjustified arrest for obstruction. Thus, the officer lacked probable cause to arrest Ewumi for battery because the struggle ensued only after the officer attempted to arrest Ewumi for obstruction, and because that arrest was unlawful, Ewumi was justified in resisting the attempted arrest with all force that was reasonably necessary to do so. Indeed, a police officer “is not discharging his lawful duty when he arrests an individual without reasonable or probable cause.” Because “[i]f there is probable cause to believe a person committed a crime, if a crime is committed in the officer’s presence or within his knowledge, or if there is a likely failure of justice, an arrest without a warrant is authorized; otherwise it is not.” Accordingly, under the facts of this case, Ewumi was unlawfully arrested for battery, and the evidence discovered as a result of Ewumi’s unlawful arrest should have been suppressed at trial.

2. Ewumi also contends that the evidence of felony obstruction, simple battery, and possession of marijuana was insufficient to sustain his convictions. We agree.

At the outset, we note that “[o]n appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” And in conducting our review, “[w]e neither weigh the evidence nor judge the credibility of witnesses, but determine only whether ... a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

(a) Felony Obstruction. First, as to felony obstruction, because we held in Division 1 that the officer attempted an unlawful arrest for misdemeanor obstruction, Ewumi’s attempt to resist that arrest cannot form the basis of a conviction for felony obstruction because the officer was not engaged in the lawful discharge of official duties. Accordingly, that conviction must be reversed because the State failed to prove a necessary element of the offense.

(b) Simple Battery. As to Ewumi’s conviction for simple battery, it too must be reversed. Aperson commits this offense “when he or she either: (1) [i]ntentionally makes physical contact of an insulting or provoking nature with the person of another; or (2) [intentionally causes physical harm to another.” Although the offense is generally a misdemeanor, it becomes a misdemeanor of a high and aggravated nature under certain circumstances, such as when it is committed against a police officer engaged in carrying out official duties. And as previously noted, Ewumi was indicted for this offense in that he “intentionally [made] physical contact of an insulting and provoking nature with [the officer], by hitting him with his elbows, and at the time of said offense, [the officer] was engaged in the performance of his official duties.”

First, as we held supra, the officer was not engaged in his official duties when the struggle with Ewumi ensued because, at that time, the officer was attempting to arrest Ewumi without probable cause. But in addition to this, the State also failed to prove the necessary element of contact because there was no testimony that Ewumi’s elbows actually made contact with the officer.

Ewumi testified in his own defense and denied elbowing (or kicking) the officer. But the officer testified that as he attempted the arm-bar technique on Ewumi, “he started kicking his legs and . . . throwing elbows back and forth, trying to wiggle free from my grip.” Later, he again repeated that Ewumi kicked at his legs and “appeared to be throwing elbows behind him to break free” from the officer’s grip. Nevertheless, although the officer testified that Ewumi made contact by kicking the officer’s legs, which formed the basis of the felony obstruction charge, there was no evidence that Ewumi made contact with his elbows, which was the basis for the simple battery charge. Indeed, the State argued at sentencing that the convictions for felony obstruction and simple battery should not merge because, just as the indictment alleged, the convictions were based on different actions (i.e., kicking versus elbowing), thereby limiting the simple battery count to the allegation that Ewumi threw his elbows. Accordingly, because the State failed to prove the necessary element of contact, Ewumi’s conviction for simple battery must be reversed.

Decided April 18, 2012.

Stanley W. Schoolcraft III, for appellant.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

(c) Possession of Marijuana. Finally, as to Ewumi’s conviction for possessing less than one ounce of marijuana, because the police discovered the marijuana as the result of an illegal arrest, this conviction must also be reversed.

3. Given our holdings in Divisions 1 and 2, we need not address Ewumi’s remaining enumeration of error.

Accordingly, for all the foregoing reasons, we reverse Ewumi’s convictions.

Judgment reversed.

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

        See, e.g., Sidner v. State, 304 Ga. App. 373, 374 (696 SE2d 398) (2010).

       At some point, Ewumi’s unidentified companion left the scene.

       At the motion-to-suppress hearing, the officer described this technique as follows: “To place the arm behind the back in... a manner so that the... small of the wrist is near the small of the back.”

       See OCGA § 16-10-24 (b) (“Whoever knowingly and willfully resists, obstructs, or opposes any law enforcement officer... in the lawful discharge of his official duties by offering or doing violence to the person of such officer ... is guilty of a felony. .. .”).

       See OCGA § 16-5-23 (a) (“A person commits the offense of simple battery when he or she either: (1) [i]ntentionally makes physical contact of an insulting or provoking nature with the person of another; or (2) [i]ntentionally causes physical harm to another.”).

       See OCGA § 16-13-30 (j) (1) (“It is unlawful for any person to possess . . . marijuana.”).

        In the Interest of J. B., 314 Ga. App. 678, 680 (1) (725 SE2d 810) (2012) (punctuation omitted).

        Id. (punctuation omitted).

        Brandt v. State, 314 Ga. App. 343 (723 SE2d 733) (2012).

        Thompson v. State, 313 Ga. App. 844, 846 (1) (723 SE2d 85) (2012) (punctuation omitted).

       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 . . . .”).

        See, e.g., In the Interest of J. B., 314 Ga. App. at 680 (1).

        Id. (punctuation omitted).

        Id. (punctuation omitted); accord State v. Dukes, 279 Ga. App. 247, 248-49 (630 SE2d 847) (2006).

        Black v. State, 281 Ga. App. 40, 44 (1) (635 SE2d 568) (2006) (punctuation omitted).

        Id.

        Celestin v. State, 255 Ga. App. 792, 794 (1) (567 SE2d 82) (2002) (punctuation omitted).

        Black, 281 Ga. App. at 43 (1) (punctuation omitted); accord Dukes, 279 Ga. App. at 249.

        Black, 281 Ga. App. at 43 (1) (punctuation omitted).

        Id. (punctuation omitted).

        Id. (punctuation omitted).

        See Dukes, 279 Ga. App. at 249 (holding that officers’ initial contact with defendant was first-tier encounter because they “did not seize [the defendant]; rather, they simply approached and questioned him without any seizure”).

        See Black, 281 Ga. App. at 44 (“[A] citizen’s ability to walk away from or otherwise avoid a police officer is the touchstone of a first-tier encounter.” (punctuation omitted)).

        See id. (“Because this was a first-tier encounter which [the individual] had every right to avoid, the State’s arguments that reasonable articulable suspicion existed are misplaced and incorrect.”).

        See Dukes, 279 Ga. App. at 249 (“Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, wouldbe.. .the use of language or tone of voice indicating compliance with the officer’s request might be compelled.” (punctuation omitted)).

        See McClary v. State, 292 Ga. App. 184, 186-87 (663 SE2d 809) (2008) (holding that a second-tier stop was warranted after defendant spoke with officer during first-tier encounter, provided a suspicious answer, and then made headlong flight as officer made further inquiry into the basis of the suspicious answer); Crowley v. State, 267 Ga. App. 718, 719(601 SE2d 154) (2004) (same); see also State v. Devine, 276 Ga. App. 159, 160-61 (622 SE2d 854) (2005).

        See Brown v. State, 301 Ga. App. 82, 86 (686 SE2d 793) (2009) (holding that defendant’s presence in apartment complex where he was not a resident, in a high-crime area, wearing what the officer perceived to be a “suspicious” hoodie, and walking in a direction so as to avoid contact with the officer did not give rise to reasonable, articulable suspicion so as to justify a second-tier stop).

        Crowley, 267 Ga. App. at 719 (punctuation omitted); see also Illinois v. Wardlow, 528 U. S. 119, 124 (120 SC 673, 145 LE2d 570) (2000) (“An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.”).

        Celestin, 255 Ga. App. at 795 (1).

        Brown, 301 Ga. App. at 85-86.

        Wagner v. State, 206 Ga. App. 180, 182 (424 SE2d 861) (1992).

        See McClary, 292 Ga. App. at 187 (defendant’s act of fleeing from first-tier encounter, inter alia, provided reasonable, articulable suspicion for officer to pursue defendant and investigate suspected domestic dispute); Crowley, 267 Ga. App. at 719-20 (defendant’s act of fleeing from first-tier encounter, inter alia, provided reasonable, articulable suspicion for officer to pursue defendant and investigate suspected crime).

        See Dukes, 279 Ga. App. at 251 (“[E]ven if we assume... that the officers had reasonable suspicion of illegal activity after [the defendant] fled, the undisputed fact is that the officers did not conduct the brief investigative stop that may have been justified by the circumstances. Instead, they executed a full-blown arrest for obstruction based solely on [the defendant’s] flight.”).

        See id. at 251 (holding, in case in which police pursued defendant after he fled from tier-one encounter, that “the controlling question presented by this appeal is whether the officers had probable cause to arrest [the defendant] for obstruction” and determining that officers did not); see also Wardlow, 528 U. S. at 126 (holding that defendant’s headlong flight from police, after police spotted defendant holding opaque bag in an area known for narcotics trafficking, warranted a second-tier stop for further investigation, but also holding that if, in such a case, “the officer does not learn facts rising to the level of probable cause, the individual must be allowed to go on his way”).

        Hubbard v. State, 311 Ga. App. 671,673 (2) (716 SE2d 777) (2011) (punctuation omitted).

        See Dukes, 279 Ga. App. at 251.

       OCGA § 16-10-24 (a) (misdemeanor obstruction).

       OCGA§ 16-10-24 (b) (felony obstruction).

       In this regard, the officer cited his attempt to make contact with Ewumi to obtain an identification, and the officer felt that Ewumi was obligated to comply when the officer commanded him to “come here a minute.” However, we note that Ewumi was ultimately indicted for felony obstruction, in that he “knowingly and willfully obstruct[ed] [the officer] in the lawful discharge of his official duties by doing violence to said officer by kicking his legs, causing visible injury.”

        See Dukes, 279 Ga. App. at 251 (“ [B] y exercising his right to leave the first-tier encounter, [the individual] did not, as a matter of law or fact, hinder or obstruct the officers’ lawful discharge of their duties.”); Black, 281 Ga. App. at 46 (1) (noting that the exercise of a citizen’s right to avoid a police officer in a first-tier encounter “may not provide the basis for elevating the encounter to a second-tier Terry stop”). Compare Johnson v. State, 264 Ga. App. 889, 891-92 (2) (592 SE2d 507) (2003) (when officer first approached individual, officer had reasonable, articulable suspicion to conduct investigative stop, and individual was guilty of obstruction for fleeing from lawful command to stop); Patterson vz. State, 244 Ga. App. 222, 223 (2) (535 SE2d 269) (2000) (because police had reasonable articulable suspicion of criminal drug activity, command to halt was lawful and defendant’s act of fleeing constituted obstruction).

        Dukes, 279 Ga. App. at 251.

        Compare Sprinkles v. State, 227 Ga. App. 112, 112-13 (1) (488 SE2d 492) (1997) (individual was informed that officer was conducting an investigation and that individual needed to remain while the officer conducted investigation).

        Dukes, 279 Ga. App. at 251.

        See Wagner, 206 Ga. App. at 183 (when defendant’s sole offense was a refusal to give his name, there was no probable cause for arrest and “physical resistance to arrest, which was the alleged obstruction, did not hinder the officer in the lawful discharge of his official duties”). Compare Mathis v. State, 250 Ga. App. 500, 500 (552 SE2d 97) (2001) (sufficient evidence of obstruction when officer had probable cause to arrest for disorderly conduct but defendant slapped officer as he attempted to make such arrest); Sprinkles, 227 Ga. App. at 113 (“The officers had grounds to arrest [the defendant] for obstruction when she pushed an officer aside and left after being told the officer needed to talk to her as part of the investigation and being ordered to wait.”).

       Ewumi was indicted for simple battery in that he “intentionally [made] physical contact of an insulting and provoking nature with [the officer], by hitting him with his elbows, and at the time of said offense, [the officer] was engaged in the performance of his official duties.”

        See Sidner, 304 Ga. App. at 376 (3) (holding that in Georgia, “a person has the right to resist an unlawful arrest” and has the right to do so “with all force necessary for that purpose” (punctuation omitted)); Celestin, 255 Ga. App. at 793 (1) (“One is free to resist an illegal arrest.”); Wagner, 206 Ga. App. at 182 (“If the arrest was legal he had no right whatever to resist it; if it was illegal, he had the right to resist with all force necessary for that purpose.” (punctuation omitted)). Compare McClary, 292 Ga. App. at 187-88 (arrest for obstruction lawful when defendant fled from a first-tier encounter, officer had reasonable, articulable suspicion to warrant a second-tier stop to investigate suspected domestic dispute, defendant ignored commands to stop, and defendant struggled with officer when officer apprehended defendant).

        Sidner, 304 Ga. App. at 376 (3) (punctuation omitted); accord Wagner, 206 Ga. App. at 182.

        Sidner, 304 Ga. App. at 376 (3) (punctuation omitted); accord Wagner, 206 Ga. App. at 182.

        Compare Strickland v. State, 265 Ga. App. 533, 538-40 (594 SE2d 711) (2004) (when defendant was subjected to unlawful stop, not an unlawful arrest, defendant’s act of committing battery against officer was not justified and the battery thus “provided an independent basis for [his] further detention, rendering his apprehension lawful”).

        See Dukes, 279 Ga. App. at 251.

        See Lackey v. State, 246 Ga. 331, 333-34 (2) (271 SE2d 478) (1980) (“An illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction. Respondent is not himself a suppressible ‘fruit,’ and the illegality of his detention cannot deprive the Government of the opportunity to prove his guilt through the introduction of evidence wholly untainted by the police misconduct.” (punctuation omitted)).

        Sidner, 304 Ga. App. at 374 (punctuation omitted).

        Id. (punctuation omitted).

        See supra note 44.

        See OCGA § 16-10-24 (b); see Curtis v. State, 285 Ga. App. 298, 300 (1) (a) (645 SE2d 705) (2007) (“[T]he State was required to prove the lawfulness of the arrest in order to prove an essential element of the obstruction offense against [the defendant].”); see also Brooks v. State, 206 Ga. App. 485, 489 (2) (425 SE2d 911) (1992) (defendant was authorized to resist unlawful arrest; thus, conviction for obstruction based on act of pushing officer required reversal for insufficient evidence).

        See OCGA § 16-5-23 (a).

       See OCGA § 16-5-23 (b) (providing for punishment as a misdemeanor); OCGA § 16-5-23 (e) (providing for higher degree of punishment when offense committed against members of law enforcement).

        See Hancock v. State, 188 Ga. App. 870, 870 (374 SE2d 757) (1988) (“Physical contact is required to prove simple battery.”). Cf. Davis v. State, 308 Ga. App. 7, 17 (5) (706 SE2d 710) (2011) (holding that there was no error in failing to include a charge on lesser-included offense of simple battery when “there was no evidence that [the defendant] made physical contact with [the victim]”).

        See Pearson v. State, 224 Ga. App. 467, 468 (1) (480 SE2d 911) (1997) (“Simple battery may arise out of the same facts and circumstances as an obstruction charge, but it would be merged with felony obstruction, if there is a conviction.”).

        See Hancock, 188 Ga. App. at 870; see also Neal v. State, 264 Ga. App. 311, 313 (2) (b) (590 SE2d 168) (2003) (“[S]imple battery [requires] intent and contact of an ‘insulting or provoking nature’ or contact causing physical harm.”). Cf. Davis, 308 Ga. App. at 17 (5).

        See Celestin, 255 Ga. App. at 794-95 (1) (because drugs were seized during an illegal stop of the defendant, the drugs could not be used as evidence against him and conviction for drug offense required reversal); see also Cuyuch v. State, 284 Ga. 290, 295 (3) (667 SE2d 85) (2008) (reversal required when inadmissible evidence is the sole basis for conviction).


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A12A0126.
    TAYLOR v. THE STATE.
    (727 SE2d 274)
   McFadden, Judge.

Tyrone Taylor appeals from his felony conviction for theft by shoplifting, claiming that he was improperly tried on an accusation, rather than an indictment, without having waived his right to a commitment hearing. But the record shows that he did waive such a hearing, and we therefore affirm.

OCGA § 17-7-70.1 (a) provide[s], inter alia, that in felony cases involving theft by shoplifting, in which defendants .. . have expressly waived a commitment hearing, the district attorney shall have authority to prefer accusations, and the defendant shall be tried on such accusations according to the same rules of substantive and procedural laws relating to defendants who have been indicted by a grand jury.

(Emphasis supplied.) Lynn v. State, 236 Ga. App. 600, 601 (1) (512 SE2d 695) (1999).

In the instant case, the district attorney filed a felony accusation, alleging that Taylor had committed theft by shoplifting two pairs of jeans from a department store and notifying him that he was subject to punishment for a felony because he had six prior convictions for theft by shoplifting. See OCGA § 16-8-14 (b) (1) (C). Taylor now argues that it was improper for him to have been tried on that accusation because he did not expressly waive a preliminary commitment hearing. However, both testimony from Taylor’s attorney and documentary evidence admitted at the motion for new trial hearing show that the attorney initially requested a preliminary hearing and a hearing date was set; that the attorney then discussed waiving the preliminary hearing with Taylor because she had already viewed the state’s discovery and believed it was to their advantage not to hold the hearing; that Taylor gave the attorney permission to waive the preliminary hearing; and that she then notified the district attorney that the hearing was unnecessary.

In conflict with the foregoing evidence, Taylor points to his own testimony at the motion for new trial hearing that he did not consent to his attorney waiving the preliminary hearing. However, “[a]s the factfinder at that hearing, the trial court was authorized to believe trial counsel over [Taylor].” (Citation omitted.) Carroll v. State, 252 Ga. App. 142, 147 (4) (a) (555 SE2d 807) (2001). Since evidence in “the record shows that [Taylor’s] attorney expressly waived the right to a commitment hearing [with Taylor’s permission, he] is bound by the express waiver of his counsel, thus authorizing his trial on the accusation.” (Citation omitted.) Singleton v. State, 266 Ga. App. 795, 799 (5) (598 SE2d 80) (2004). Accordingly, the trial court did not err in denying his motion for a new trial.

Decided April 19, 2012.

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

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

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.


text:
    A12A0150.
    WADE v. THE STATE.
    (727 SE2d 275)
   McFadden, Judge.

Terry Alexander Wade was convicted of armed robbery. See OCGA § 16-8-41. He appeals from the denial of his motion for new trial on the ground that he received ineffective assistance of trial counsel. Because he has not demonstrated that trial counsel’s performance was both deficient and prejudicial to his defense, we affirm.

The trial evidence, viewed most favorably to the jury’s verdict, see Hinton v. State, 292 Ga. App. 40, 41 (663 SE2d 401) (2008), demonstrated that at around 11:00 a.m. on January 27, 2005, two masked men entered a Putnam County bank. One yelled: “This is a bank robbery. Everybody on the floor or we’ll kill you.” One of the men used an orthopedic crutch to jump over the teller counter, while the other man remained in the bank lobby. The man who had jumped over the counter poked a bank teller in the side with something and told her she would be hurt if she did not cooperate. He demanded to be taken to the vault and for money to be placed in a duffle bag. The two men then left the bank, having taken approximately $243,000.

The men fled in a car that was found abandoned a short time later. When law enforcement officers searched the abandoned car they found a fingerprint that an analyst with the Federal Bureau of Investigation determined belonged to Wade. Other evidence was presented that also linked Wade to the bank robbery. Several eyewitnesses to the robbery described the man who jumped over the teller counter as having a distinctive facial structure that could be discerned through his sheer mask — a narrow face, long jaw bone, and protruding mouth — and they testified that Wade’s facial structure resembled that of the robber. Acellular telephone belonging to Wade’s wife and sometimes used by Wade had been used in the bank’s vicinity within minutes of the robbery. In early January 2005, Wade (a resident of Ohio) had told a friend that he was planning a trip to Atlanta to “work.” Less than a week after the bank robbery, Wade purchased a car for $2,900; the person who sold him the car testified that Wade paid for it in cash using hundred dollar bills that he pulled out of a bag in the seller’s presence. After his arrest, Wade told his sister in a telephone conversation that “green stuff” was “all right where it’s at.” A search of Wade’s house produced, among other things, a bill for service for the cellular telephone that had been used near the bank, which was missing the specific page reflecting the date of the bank robbery, and a composition notebook containing notes about “armed robbery, robbery, statuftjes, [and] enhancements .’’And similar transaction evidence was presented that Wade had committed prior bank robberies, including one in which he had jumped over the teller counter.

In motions for new trial, Wade contended that he received ineffective assistance of counsel and asserted numerous instances of allegedly deficient performance by his trial counsel. Pertinent to this appeal, Wade argued that counsel expressed disapproval of him and impugned his character before the jury through various comments and arguments, elicited evidence of another similar transaction that the court earlier had excluded from evidence, improperly disclosed matters subject to attorney-client privilege, failed to object to references to Wade’s invocation of certain constitutional rights, and opined on the strength of the state’s case, including the credibility of certain state’s witnesses. (Although Wade also argues on appeal that trial counsel was deficient in failing to request a jury instruction on alibi, the record shows only that he claimed to the trial court that the court’s failure to give such instruction was a ground for a new trial, not that the lack of the instruction supported a finding of ineffective assistance of counsel.)

At hearings on Wade’s motions for new trial, his trial counsel testified that some of the complained-of actions were oversights. But trial counsel explained that other actions were part of a strategy of acknowledging the credibility of the state’s witnesses and the problems in Wade’s past but arguing that the state had not shown that Wade had committed this particular crime. He stated that he had succeeded with this strategy in the past. He also testified that he and Wade had specifically prepared for Wade to give limited trial testimony in support of this strategy, but that at trial Wade lost focus and unexpectedly began discussing his involvement in other criminal activities, leading trial counsel to try to “rebuild” Wade’s testimony through some of the complained-of actions.

To prevail on his claim that he received ineffective assistance of trial counsel, Wade must establish that counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. Conaway v. State, 277 Ga. 422, 424 (2) (589 SE2d 108) (2003). The trial court concluded that Wade did not make either showing. As to deficient performance, the court found that

[cjounsel was apparently prepared and knowledgeable about the subject matter. His motions were appropriate and well-presented. Cross examination was thorough and consistent with the over-arching theme posited by the defense. Choices that now seem to have been less effective in light of the jury’s verdict[ ] all appear to have been strategically chosen to fit with the facts and that defense theme. Mr. Wade’s representation at trial, taken as a whole, was above the standards expected in the community of trial lawyers.

As to prejudice, the court found that there was “no real likelihood... that a different verdict would have flowed from a change in counsel’s actions or strategies.” In reviewing the trial court’s determination, we uphold the court’s factual findings unless they are clearly erroneous and review the court’s legal conclusions de novo. Suggs v. State, 272 Ga. 85, 88 (4) (526 SE2d 347) (2000).

We need not consider whether counsel performed deficiently, because Wade has not shown that he was prejudiced. Prejudice is defined as “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Citation and punctuation omitted.) Hardeman v. State, 281 Ga. 220, 221 (635 SE2d 698) (2006). Overwhelming evidence of Wade’s guilt was presented at trial, and this evidence would have been presented to the jury regardless of the alleged deficiencies of counsel asserted by Wade. Consequently, we find no reasonable probability that, but for the alleged deficiencies, the trial would have resulted in a different outcome. See id. at 221-222; see also Glass v. State, 289 Ga. 542, 548 (6) (c) (712 SE2d 851) (2011) (finding defendant could not demonstrate prejudice from counsel’s deficient performance in light of overwhelming evidence substantiating his guilt).

Wade contends, however, that prejudice should be presumed because his trial counsel’s actions amounted to a constructive denial of counsel. See Hardeman, 281 Ga. at 222 (constructive denial of counsel is one of a narrow range of circumstances in which the prejudice component of a claim of ineffective assistance of counsel can be presumed); Turpin v. Curtis, 278 Ga. 698, 699 (1) (606 SE2d 244) (2004) (same). “[A] constructive denial is not present unless counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing. The attorney’s failure must be complete and must occur throughout the proceeding and not merely at specific points.” (Citations and punctuation omitted.) Turpin, supra; see United States v. Cronic, 466 U. S. 648, 659 (III) (104 SC 2039, 80 LE2d 657) (1984).

The record in this case does not show an entire failure of counsel to meaningfully test the prosecution’s case. To the contrary, the record demonstrates that throughout the trial Wade’s counsel attempted to “hold the prosecution to its heavy burden of proof beyond reasonable doubt.” Cronic, 466 U. S. at 656 (II), n. 19. To this end, counsel, who had spent a significant amount of time preparing for trial, made numerous objections to testimony and evidence introduced during the prosecutor’s direct examinations of the state’s witnesses. He objected to the eyewitnesses’ in-court identifications of Wade as resembling the robber. He objected to the introduction of various pieces of evidence, including the fingerprint evidence, evidence related to the cellular telephone records, and evidence regarding Wade’s telephone conversations with others leading up to the bank robbery and after Wade’s arrest. He challenged and moved to exclude expert testimony regarding the scientific validity of fingerprint evidence. He attacked on cross-examination the expert fingerprint witness’s methodology and the precision of her work. He challenged the chain of custody of the car in which the fingerprint was found and raised other questions about the manner in which law enforcement officers investigated the bank robbery. He attacked on cross-examination the evidence regarding the use of the cellular telephone on January 27, 2005, including evidence regarding where and when the telephone had been used and the premise that Wade was the person who used the telephone. He challenged the admission of the similar transaction evidence. He highlighted in cross-examinations differences between the similar transactions and the Putnam County bank robbery. And he challenged the trial court’s exclusion of the Putnam County Sheriff from the rule of sequestration. The record thus shows that, throughout the trial, Wade’s counsel challenged the prosecution’s case and the trial did not “lose[ ] its character as a confrontation between adversaries.” Id. at 656-657 (II).

Citing Rickman v. Bell, 131 F3d 1150 (6th Cir. 1997), Wade argues that he nevertheless experienced a constructive denial of counsel because his counsel acted as a “second prosecutor” by eliciting testimony about Wade’s criminal history not otherwise in evidence and by disparaging him in closing argument. But the conduct of Wade’s counsel is not comparable to that of counsel in Rickman. The court in Rickman found that, throughout the trial of that case, counsel repeatedly depicted his client as “vicious and abnormal” and a “hated and violent freak,” id. at 1160 (III), conduct that the court described as “worse than no representation at all.” Id. at 1159. Here, in contrast, counsel’s allegedly disparaging remarks were made only after Wade, through his own testimony, had depicted himself as a person deeply involved in criminal activities and a criminal culture; counsel’s closing argument acknowledging this testimony sought to persuade the jury to look past Wade’s other criminal conduct and focus solely on whether Wade had committed the particular crime for which he was charged. Wade blames his counsel for eliciting some of his testimony about his criminal activities. But the record shows that, although some of the testimony followed an ambiguous question by his counsel, most of Wade’s testimony about his criminal activities was not responsive to any questions posed by his counsel. And although Wade complains of counsel’s arguments in closing regarding the credibility of various state’s witnesses, the record demonstrates that counsel used those credibility assessments to argue that, even taken as true, the witnesses’ testimony left room for reasonable doubt. The record fails to show that Wade’s counsel “aligned himself with the prosecution against his own client,” as did the counsel in Rickman. Id. at 1159 (III).

Further decisions from other jurisdictions cited by Wade in support of his contention are also distinguishable, because in those cases trial counsel took positions directly contrary to the defendants’ interests. See United States v. Swanson, 943 F2d 1070, 1074 (9th Cir. 1991) (counsel conceded no reasonable doubt existed as to defendant’s guilt); Osborn v. Shillinger, 861 F2d 612, 628 (III) (10th Cir. 1988) (counsel made public statements that defendant was not amenable to rehabilitation, did not present at sentencing hearing available evidence contradicting state’s contention that defendant was criminal ringleader, and at sentencing stressed the brutality of defendant’s crimes), disapproved on other grounds, Shafer v. Stratton, 906 F2d 506, 509 (1) (10th Cir. 1990); King v. Superior Court, 132 Cal. Rptr. 2d585, 600-601 (III) (Cal. Ct. App. 2003) (counselofferedno argument on defendant’s behalf but instead actively argued and presented evidence against defendant in hearing on whether defendant had forfeited his right to counsel); State v. Carter, 14 P3d 1138, 1148 (Kan. 2000) (counsel overrode defendant’s plea of not guilty and pursued a theory that defendant had committed a lesser crime, against defendant’s wish to pursue an innocence defense). Here, in contrast, Wade’s counsel consistently argued to the jury that the state had not met its heavy burden of showing beyond a reasonable doubt that Wade had committed the Putnam County bank robbery.

Decided April 19, 2012

Brian Steel, for appellant.

Fredric D. Bright, District Attorney, Stephen A. Bradley, Assistant District Attorney, for appellee.

In summary, Wade “has not demonstrated a breakdown in the adversarial process that would justify a presumption that his conviction was insufficiently reliable to satisfy the Constitution.” (Citation and punctuation omitted.) Lyons v. State, 271 Ga. 639, 640 (2) (522 SE2d 225) (1999). Because Wade failed to prove that he was prejudiced by any alleged deficiency, the trial court did not err in denying his motion for new trial.

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.


author: MlKELL, Presiding Judge.

text:
    A12A0260.
    IN THE INTEREST OF M. M. et al., children.
    (727 SE2d 279)
   MlKELL, Presiding Judge.

The Douglas County Juvenile Court found that M. M. and M. M., five-year-old twins, were deprived, and entered a two-year disposition of custody order in favor of their father. The mother appeals from the disposition and from an order of adjudication, arguing that the juvenile court erred in finding that jurisdiction was proper, as the deprivation was merely a disguised custody dispute over which the superior court has jurisdiction, and further alleges that the trial court erred in finding clear and convincing evidence of present deprivation. For the reasons that follow, we affirm.

The twins’ parents never married, and the parents’ relationship ended during the pregnancy. Both twins were born with medical complications, and while one came home shortly after birth, the other spent seven months in the hospital and was diagnosed with short bowels, failure to thrive, and respiratory problems requiring the use of oxygen. She also needed a feeding tube with a port and, upon release from the hospital, required occupational, physical, and speech therapy. The parents lived together and shared responsibility for the twins’ care for the first year-and-a-half after birth. The mother moved out, and about a month later, in 2007, Clayton County Department of Family and Children Services (DFACS) removed the children from her care because she failed a drug test. DFACS entered into a safety plan and placed the children with the mother’s sister. The mother moved back in with the father so that the children would not be placed in foster care, then soon moved out again. At one point, the mother filed for abandonment in Clayton County; however, the charges were dismissed upon a showing that the father had paid support and that the children were living with him.

The mother left the children with the father in July 2010, following one twin’s surgery for a wound that did not heal after removal of a feeding tube. Between the time the mother left the twins and the father’s filing of the deprivation petition in November 2010, the mother did not visit the children or pay support. When the deprivation petition was filed, a prior pro se custody and legitimation action filed by the father in 2009 still was pending. The mother did not oppose legitimation. The juvenile court found that paternity testing confirmed the father’s belief that the twins were his children.

After several hearings, the juvenile court found the children deprived in a May 9,2011, adjudication order, and granted temporary custody to the father in a June 6, 2011, disposition. The findings of fact underlying the juvenile court’s orders are discussed in Division 2, below.

1. The mother argues that the juvenile court lacked subject matter jurisdiction because the deprivation action was filed by a noncustodial parent seeking custody from a custodial parent, and therefore was a disguised custody action properly within the domain of the superior court.

Jurisdiction is a question of law to which appellate courts apply a de novo standard of review. Although the juvenile court has exclusive jurisdiction over children alleged to be deprived, “if a deprivation proceeding is actually a disguised custody matter, then it is outside the subject matter jurisdiction of the juvenile courts.” However, our Supreme Court has “explicitly rejected the idea that we must regard any deprivation or termination action between parents as a prima facie custody dispute.” Rather, juvenile courts may not hear “deprivation proceedings brought by a non-custodial parent to obtain custody from a custodial parent.” Therefore, we follow the longstanding rule that pleadings must be construed according to their substance and function rather than their nomenclature, and if an analysis shows that a deprivation petition is what it purports to be, rather than a disguised custody proceeding, the juvenile court has jurisdiction. “[E]ach deprivation petition must be judged on its own merits.”

In the instant case, although the father previously had filed a custody action, the juvenile court did not err in finding that the nature of the case was a deprivation action, and that it had jurisdiction. First, the petition makes valid allegations of deprivation as defined by OCGA § 15-11-2 (8) (A), as discussed in Division 2, below. Second, although the father did not have legal custody of the twins, he has had physical custody since their mother voluntarily left them at his home in July 2010, and it is undisputed that the mother did not pay support and did not visit the children in the ensuing five months prior to the father’s filing of the deprivation petition.

The case sub judice is distinguishable from other cases involving deprivation petitions filed while a custody action was pending where we have found the juvenile court lacked jurisdiction. In In the Interest of J. E. T., the children were in the father’s custody when the mother filed a deprivation action. The appellate court in J. E. T. affirmed the juvenile court’s finding that the mother was using the deprivation as a way to gain custody because her initial deprivation petition expressly requested that the children be placed in her sole legal and physical custody and her amended petition asked the court to consider her as a possible custodian, and sought to terminate the father’s parental rights, In the instant deprivation action, by contrast, the petition does not seek either permanent custody or a termination of parental rights, and the trial court’s disposition contemplates the mother’s post-incarceration involvement with the children.

Although the father’s pending pro se petition for legitimation and custody predates the deprivation action, that petition indicates that the children were living with the father because the mother was in jail, and the father’s accompanying statement says that the mother has “on numerous occasions . .. [been] unable to provide for, or take care of, my children.” The father also testified that he sought custody because the mother would drop the children off at his house and then “disappear” without leaving him their Medicaid cards. Because he had no legal right to the children, he could not take them to see medical specialists. In a similar situation, we found that the juvenile court had jurisdiction where there was a lack of evidence showing that petitioner would have sought custody but for the children’s present deprivation. Finally, “the court’s order reflects on its face that it was addressing the alleged deprivation of [M. M. and M. M.], and juvenile courts clearly have subject matter jurisdiction over deprivation petitions.” We find no error.

2. The mother alleges that the trial court erred in finding clear and convincing evidence of present deprivation, arguing that the evidence and findings of fact related only to past deprivation. We disagree.

On appeal from a juvenile court’s finding of deprivation,

we review the evidence in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the child was deprived. This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s fact-finding and affirm unless the appellate standard is not met.

A deprived child is one who is “without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals.” “Deprivation is established by proof of parental unfitness arising from either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child.”

While the petition must allege present deprivation, we have held that “[i]n determining whether the parent’s current situation is stable, the juvenile court may consider the parent’s past conduct and decide what weight, if any, is to be given to recent improvements in the parent’s housing and employment circumstance.”

The father’s petition does allege present deprivation, including the mother’s leaving the children with the father beginning in July 2010 and not visiting them; her lack of appropriate housing and stable employment; and her lack of financial support for the twins and her use of one twin’s disability benefits to pay her own bills rather than to care for the child.

While the juvenile court’s May 9, 2011, adjudication order finding deprivation considers the mother’s history, it is also replete with findings related to her present circumstances. The juvenile court found that the mother had placed the children with the father beginning in July 2010, had not provided the father with the girls’ food stamps or Medicaid cards, and that lacking the Medicaid cards and legal custody, the father could not take the girls to medical specialists. The court also found that the mother used for herself $2,400 in disability benefits intended for one twin. The court further found that the mother had disobeyed its order that she reimburse the $2,400 in disability benefits. The court found that the mother has had seven to eight residences since the twins were born, has not had stable employment, and was unemployed much of the time between 2009 and 2011, and that friends and relatives were paying her bills. The court also found that the mother had difficulty conforming to rules such as timely appearing in court and attending visitations with the children, and that the guardian ad litem had expressed concerns about the mother’s arrests, failure to appear in court, anger issues, and unstable living situations and employment. Additionally, the guardian ad litem testified that but for the father, the twins likely would have been in foster care. The court further found that the mother “has not had the ability to provide for [the twins’] physical, social and emotional needs on her own.”

Further, the juvenile court’s most recent order in the instant case is the June 6,2011, disposition. In that order, the juvenile court found that the mother has objected to a mental health assessment, and the court indicated that it “[had] reason to be concerned about a potential diagnosis of personality disorder.” The'court found that the mother was incarcerated at the time of that hearing, with no projected release date, no court date, and no bond. The court also found that although the mother anticipated returning to a prior job, the guardian ad litem had reason to believe the mother had lost that job before she was incarcerated. Nothing in the court’s order indicates any recent improvements in the mother’s housing or employment as contemplated in In the Interest of V. D.

“Lack of stable housing and lack of support due to a parent’s unstable or irregular employment are appropriate factors in determining deprivation.” Further, the evidence before the juvenile court showed that when in the mother’s physical custody, the girls frequently had been cared for and provided for by others. “That someone else is providing good care in the absence of the parent in question does not preclude a finding of deprivation.” While the court’s adjudication order found that the mother provided for the children’s basic medical and educational needs while they were in her custody, the court also found that leaving the children in her custody put them at risk given her unstable residence and employment situation combined with the children’s physical, emotional, social, educational, and medical needs. As to their medical needs, we have held that the special medical needs of children and the parent’s inability to provide for those needs are relevant considerations in a deprivation action.

As the record amply shows evidence of valid allegations and findings of present deprivation under OCGA § 15-11-2 (8) (A), we cannot say that this evidence was insufficient to support the juvenile court’s finding that there was clear and convincing evidence of present deprivation. We affirm.

Judgment affirmed.

Miller and Blackwell, JJ., concur.

Decided April 19, 2012.

Cynthia Adams, for appellant.

Robert A. Kunz, for appellee.

        In the Interest of K. L. H., 281 Ga. App. 394, 395 (636 SE2d 117) (2006).

       OCGA§ 15-11-28 (a) (1) (C).

       (Punctuation and footnote omitted.) In the Interest of K L. H., supra.

       (Footnote omitted.) Id. at 396.

       (Footnote omitted; emphasis in original.) Id.

        In re M. C. J., 271 Ga. 546, 548 (523 SE2d 6) (1999).

       Id.

       Compare In the Interest of K. R. S., 253 Ga. App. 678, 679 (1) (560 SE2d 292) (2002) (petition that fails to make valid allegations of deprivation under OCGA § 15-11-2 (8) should be treated as a custody dispute outside juvenile court’s jurisdiction).

       See In the Interest of K. E. P, 269 Ga. App. 700, 701-702 (1) (605 SE2d 114) (2004) (in termination action, juvenile court found to have subject matter jurisdiction where petitioner already had primary physical custody of child and other parent had not visited for more than a year).

       269 Ga. App. 567 (604 SE2d 623) (2004). Accord In the Interest of C. L. C., 299 Ga. App. 729, 733 (1) (683 SE2d 690) (2009) (juvenile court lacked jurisdiction to decide deprivation where nonparents sought to have custody transferred from mother to themselves, and mother’s ex-boyfriend testified he would want custody even if mother was rehabilitated, and where petition did not contain valid allegations of deprivation).

        In the Interest of J. E. T., supra at 569-570 (1).

       See In the Interest of T. L., 269 Ga. App. 842, 843 (1) (605 SE2d 432) (2004) (deprivation petition brought by DFACS asking that father get temporary custody but contemplating reunification with mother not a disguised custody proceeding).

        In the Interest of K. L. H., supra.

       (Footnote omitted.) In the Interest of M. L. C., 249 Ga. App. 435, 436 (1) (548 SE2d 137) (2001).

       (Citation omitted.) In the Interest of W. W., 308 Ga. App. 407 (707 SE2d 611) (2011).

       OCGA § 15-11-2 (8) (A). We note that the mother’s appellate brief frequently relies on authority related to termination actions, rather than deprivation actions, and that while there is some cross-applicability, certain standards cited by the mother are inapplicable here.

       (Citation and punctuation omitted.) In the Interest of W. W., supra at 410.

        In the Interest of T. P., 291 Ga. App. 83, 85 (3) (661 SE2d 211) (2008).

       (Citationand punctuation omitted.) In the Interest of V. D., 303 Ga. App. 155, 157 (1) (692 SE2d 780) (2010).

       Id.

       (Footnote omitted.) In the Interest of J. S., 295 Ga. App. 861, 864 (673 SE2d 331) (2009).

       (Citation omitted.) In the Interest of M. C. J., 242 Ga. App. 852, 855 (1) (531 SE2d 404) (2000). See also In the Interest of J. L. M., 204 Ga. App. 46, 48 (1) (418 SE2d 415) (1992) (deprivation finding authorized where father incarcerated and upon showing of his failure to meet children’s needs, despite temporary guardians’ provision of good care).

       See In the Interest of A. B., 289 Ga. App. 655, 656 (658 SE2d 205) (2008) (deprivation finding upheld where mother disappeared for months, leaving disabled child in maternal grandmother’s care); In the Interest of D. Q., 307 Ga. App. 121, 125 (704 SE2d 444) (2010) (deprivation finding upheld where mother did not ensure that children’s mental health needs were met).


text:
    A12A0306.
    ANDERSON v. THE STATE.
    (727 SE2d 504)
   MlKELL, Presiding Judge.

Based on acts of sodomy committed against J. A., his adopted daughter, James Karl Anderson was found guilty by a jury of three counts of aggravated child molestation and was acquitted of one count of child molestation. Pursuant to OCGA § 17-10-6.1, he was sentenced on each aggravated child molestation count to life in prison, with 25 years to serve on each count, consecutively, and the balance on probation. After hearings, Anderson’s amended motion for new trial was denied. He appeals, challenging the sufficiency of the evidence and enumerating other errors. We affirm.

On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence. This Court does not weigh the evidence or determine witness credibility, but only determines whether the evidence, viewed in the light most favorable to the jury’s verdict, is sufficient under Jackson v. Virginia. We uphold the verdict if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Properly viewed, the evidence adduced at trial showed the following. Anderson had married the mother of the victim and had adopted the victim, J. A., when she was small. J. A.’s mother testified that “[s]o far as [J. A.] was concerned, he’s pretty well been her father.” At some point, Anderson moved out of his wife’s bedroom and into the bonus room in the family home; later, in May 2007, the month J. A. turned nine years old, Anderson moved out of the family home altogether and into his own apartment. Thereafter, on occasions when her mother had to work at night, J. A. and her younger sister, who was developmentally challenged, would from time to time spend the night with Anderson at his apartment.

J. A. was eleven years old and in sixth grade at the time of the August 2009 trial. She testified that the last time she stayed overnight at her father’s apartment, he woke her up as she was sleeping on the couch. He was naked and he told her to take her clothes off. When she refused, he got mad, pulled her clothes off, and told her to suck his penis. When she resisted, he pushed her head toward his penis and forced her to comply. He then “put his penis in [her] butt,” while moving “back and forth.” She testified that “it hurt really bad”; that she told him to stop; and that she was crying. He “kept switching back and forth” between forcing her to engage in oral sex and forcing her to engage in anal sex. He pulled a packet with writing on it from under the couch, and she felt “some stuff, something greasy” on her behind. This episode occurred when J. A. was ten years old, two or three weeks before J. A.’s recorded interview with a police investigator on October 17, 2008.

J. A. further testified that Anderson had forced her to engage in oral and anal sex on earlier occasions, although she could not remember how many times; and that the abuse began when she was in the third grade. The abuse took place first at her home and, later, at Anderson’s apartment.

On October 16, 2008, J. A., who was “sick and tired” of the abuse, made outcry to her mother. J. A. told her mother that she did not want to spend the night at her dad’s apartment. When her mother asked why, J. A. told her that her father sometimes put his penis “in her mouth and also in her butt”; and that the abuse had occurred both at her home and at Anderson’s apartment.

The next morning, October 17,2008, her mother called the police and took J. A. to the Rockdale County Sheriffs Office, where J. A. was interviewed by Jennifer Perry, a P. O. S. T.-certified investigator with the Criminal Investigation Division of the Rockdale County Sheriff’s Office. Perry testified for the state at trial. The recording of the interview was admitted into evidence without objection and was played for the jury.

In this interview, J. A. graphically described the abuse she had suffered for the two years prior to October 2008, in a manner consistent with her later testimony at trial. J. A. explained that, when the abuse began, Anderson would make J. A. put her mouth on his penis. On occasion, including the last time J. A. stayed at Anderson’s apartment overnight two weeks earlier, Anderson made J. A. suck his penis while he was licking her vagina. J. A. called this “disgusting.” J. A. told Perry that Anderson would not stop until “stuff” came out of his penis, which he always made her swallow. He told her that it would help her skin.

In February 2007, more than a year before her October 2008 interview with Perry, J. A., then eight years old, had made her first outcry of sexual abuse against her father. The outcry was reported to authorities, and two separate investigations were begun. The investigations were closed, however, when J. A. recanted in March 2007. Later, at the August 2009 .trial, J. A. explained that her 2007 accusation against her father “was the truth, but [she] said it was a lie to keep the family together”; and that she recanted the accusation “[b]ecause I felt like I wanted to keep my relationship with my father and I didn’t want to break the family apart.” This testimony was consistent with her statements to Perry in the October 2008 recorded interview. At that time, J. A. told Perry that she had recanted her 2007 accusation because Anderson “played the guilt trip on [her] and he was mad”; and she “did not want to be the bad guy.”

Anderson testified at trial and denied the charges against him. He called several witnesses, including investigators of J. A.’s 2007 outcry, as well as a childhood friend who testified as a character witness. At the conclusion of the trial, the jury found Anderson guilty of three counts of aggravated child molestation. His amended motion for new trial was denied, and this appeal followed.

1. In his first enumeration of error, Anderson contends that the evidence was insufficient to support his convictions for aggravated child molestation. We disagree.

A person commits child molestation when he “[d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” Aggravated child molestation occurs when a person “commits an offense of child molestation which act physically injures the child or involves an act of sodomy.” The testimony of J. A., standing alone, was sufficient to support the verdict; and the jury was entitled to consider the victim’s out-of-court statements, such as those made in the October 2008 police interview, as substantive evidence under the Child Hearsay Statute, OCGA § 24-3-16. Accordingly, we conclude that any rational trier of fact could have found Anderson guilty beyond a reasonable doubt of the three counts of aggravated child molestation with which he was charged.

Anderson argues that the evidence was insufficient because there was no physical evidence of abuse. However, the victim’s testimony, alone, supports his convictions, despite the absence of any physical evidence, because “Georgia law does not require corroboration of a child molestation victim’s testimony.” Anderson further points to inconsistencies between J. A.’s in-court testimony and her recorded October 2008 police interview, as well as her earlier recantation of her 2007 outcry. But “any inconsistencies between the victim’s trial testimony and her out-of-court statements were issues of witness credibility that were solely within the province of the jury and play no part in this Court’s sufficiency of the evidence review.” On appellate review, “we determine only the legal sufficiency of the evidence adduced below and do not weigh the evidence or assess the credibility of the witnesses.” Thus, “[a]s long as there is some evidence, even though contradicted, to support each necessary element of the [s]tate’s case, the verdict will be upheld.”

2. Anderson asserts that the recording of the October 2008 interview of J. A. should have been excluded from evidence, because it lacked sufficient indicia of reliability. Under the Child Hearsay Statute, OCGA § 24-3-16, the victim’s out-of-court statements are “admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” In this case, following a pre-trial hearing, the trial court ruled that this recording showed “sufficient indicia of reliability” and was admissible under OCGA § 24-3-16. “The trial court has broad discretion in determining the admissibility of child hearsay evidence, and we will reverse a trial court’s ruling on the admissibility of statements under OCGA§ 24-3-16 only if the trial court abused its discretion.” We find no abuse of discretion here.

When determining whether an out-of-court statement has sufficient indicia of reliability, a court may consider the following factors, without limitation:

(1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present thereat); (2) the spontaneity of the child’s statement to the persons present; (3) the child’s age; (4) the child’s general demeanor; (5) the child’s condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child’s statement, and the type of coaching and circumstances surrounding the same; and[ ] the nature of the child’s statement and type of language used therein; and (10) the consistency between repeated out-of-court statements by the child.

These factors, however, “are not to be mechanically applied but considered in a manner best calculated to facilitate the determination of the required degree of trustworthiness.” Moreover, “even if all factors do not indicate reliability, the trial court does not necessarily abuse its discretion in admitting the statement.”

Here, Perry testified that the interview took place in a “children friendly” room at the sheriff’s office, outside the presence of J. A.’s mother, thus avoiding any undue influence. J. A. was ten years old at the time of the interview; the interview resulted from J. A.’s spontaneous outcry to her mother the day before; and there was no evidence of coercion or coaching. The most recent episode of abuse had taken place only “two or three” weeks before the interview. Perry testified that at first J. A. seemed nervous, but later she was “very detailed.” J. A. appeared to understand Perry’s questions, and her responses to Perry’s questions seemed unrehearsed and spontaneous, contrary to Anderson’s contention. J. A. did not appear to be in any physical or emotional distress; there was no evidence that J. A. received either threats or promises; and, to Perry’s experienced eye, J. A. did not appear to be under the influence of drugs or alcohol. Perry further testified that, prior to the interview, she had spoken with J. A.’s mother; and that J. A.’s statements in the interview were consistent with the statements J. A. had made to her mother.

J. A. admitted in the interview that she had lied in recanting her 2007 accusations, and she explained why she had done so. Any inconsistencies in her statements to her schoolmates, her 2007 outcry, her interview statements, and her testimony at trial had chiefly to do with the amount of detail she provided. These minor inconsistencies were issues going to the weight and credibility of the evidence, not its admissibility.

Further, J. A. testified as a witness at trial and was subject to cross-examination, “thus allowing [Anderson] every opportunity to cross-examine her before the jury regarding the circumstances surrounding the videotaped interview, and giving the jury the opportunity to judge her demeanor and credibility during that examination.” As this Court has explained, “This circumstance provided an additional safeguard to [Anderson’s] right of fair trial and provided him full opportunity for confrontation.”

We conclude that the trial court did not abuse its discretion in admitting the recording of the victim’s October 2008 interview.

3. Anderson asserts that, because the recording of the October 2008 interview lacked sufficient indicia of reliability, the trial court erred in permitting the recording to be replayed in court at the jury’s request during its deliberations. This enumeration fails. We determined in Division 2 above that J. A.’s interview provided sufficient indicia of reliability and was therefore admissible under OCGA § 24-3-16. Further, because the replay of the interview occurred under essentially the same circumstances and with essentially the same cautionary jury charge as that found appropriate in Lopez, the trial court did not abuse its discretion in allowing the interview to be replayed for the jury during its deliberations.

4. In two enumerations of error, Anderson contends that the trial court erred in allowing J. A.’s schoolmates, D. P. and E. E., to testify as to J. A.’s outcry statements to them. Anderson argues that the circumstances of the statements made by J. A. to these two outcry witnesses lacked “sufficient indicia of reliability” as required by the Child Hearsay Statute, OCGA§ 24-3-16. However, Anderson has not preserved these alleged errors for appellate review. At the pre-trial hearing, the trial court addressed Anderson’s motion in limine only as to the October 2008 interview; and Anderson made no effort to address the reliability of the testimony of these two outcry witnesses, even though the state noted that they would be called as witnesses at trial. Anderson neither sought nor obtained any pre-trial ruling as to the admissibility of testimony of these witnesses; nor did Anderson object at trial to the testimony of either D. P. or E. E., on this or any other ground. Anderson asserts in his brief that these alleged errors were preserved for appellate review, but he has provided no citation to the record; and our review of the record has not shown that these alleged errors were preserved. Because Anderson “failed to object to the introduction of any of this evidence [,] his claim that the evidence was improperly admitted pursuant to the Child Hearsay Statute was not preserved for appellate review.”

5. Anderson contends that the trial court erred in admitting into evidence certain items found during the execution of a search warrant at his apartment. We find no error.

On October 16, 2008, when J. A. told her mother of Anderson’s abuse, the mother, shocked and angry, immediately went over to Anderson’s apartment to confront him. She testified that, when she told him that J. A. had disclosed his abuse, he “blew up.” The next day, after interviewing J. A., Perry and deputies from the Rockdale County Sheriff’s Office executed a search warrant on Anderson’s apartment. There, they found Anderson on the floor of a bathroom closet, unresponsive and lying face down in his own bodily fluids. An ambulance was called for him. On the floor of the closet, deputies found an almost-empty bottle of vodka near Anderson’s head and a fully-loaded 9 millimeter handgun between his knee and foot. This weapon and its ammunition were admitted into evidence at trial without objection.

The deputies also found, on Anderson’s kitchen table, an envelope containing ten Falcons tickets and a white index card on which was written, in Anderson’s handwriting, “ED U HAVE BEEN A TRUE FRIEND......ALL MY FALCONS STUFF IS YOURS ‘LOVEAJ’ [signature] 10-17-08.” On the outside of the envelope was written, again in Anderson’s handwriting, the name “Ed Blunt,” one of Anderson’s friends. After the pre-trial hearing on Anderson’s in limine motion, the trial court determined that these items were admissible as evidence of consciousness of guilt.

Decided April 19, 2012.

Patricia M. Moon, for appellant.

Anderson asserts that the probative value of this evidence was outweighed by its prejudicial effect. However, it was for the trial court to exercise its discretion in determining the admissibility of evidence as showing consciousness of guilt. We find no abuse of discretion here.

In general, any statement or conduct of the accused tending to show consciousness of guilt is admissible in Georgia. In Aldridge, this Court addressed for the first time the question of whether attempted suicide would be admissible as conduct indicating a consciousness of guilt. We concluded that such evidence would be admissible: “evidence of attempted suicide by the accused where such person is, at the time or thereafter, charged with or suspected of crime, is relevant as possibly indicating a consciousness of guilt and admissible for whatever weight the jury chooses to assign.” Here, the record shows that, on the afternoon of the day after Anderson’s wife told him that J. A. had revealed the abuse, he was found in a drunken stupor on the floor of a small closet; his handgun was found within arm’s reach; and the handgun was fully loaded. Whether the note and Falcons tickets, in conjunction with the foregoing, were evidence of a contemplated suicide attempt and were indicative of consciousness of guilt, or whether these items had an innocent explanation, was a question for the jury.

Judgment affirmed.

Miller and Blackwell, JJ., concur.

Richard R. Read, District Attorney, Roberta A. Earnhardt, Assistant District Attorney, for appellee.

       The indictment charged Anderson with committing aggravated child molestation between January 1, 2007, and October 9, 2008, by commanding the victim to place her mouth on his penis; by placing his mouth on the victim’s vaginal area; and by placing his penis in and on the victim’s anus.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       (Footnote omitted.) Whitaker v. State, 293 Ga. App. 427 (667 SE2d 202) (2008). Accord Harvey v. State, 295 Ga. App. 458 (671 SE2d 924) (2009).

       OCGA§ 16-6-4 (a) (1).

       OCGA § 16-6-4 (c). OCGA § 16-6-2 (a) (1) provides that “[a] person commits the offense of sodomy when he or she performs . .. any sexual act involving the sex organs of one person and the mouth or anus of another.”

       See OCGA § 24-4-8; Cobb v. State, 309 Ga. App. 70, 73 (1) (709 SE2d 9) (2011) (victim’s testimony, standing alone, was sufficient to support conviction for child molestation).

       See Manders v. State, 281 Ga. App. 786, 788 (1) (637 SE2d 460) (2006). Accord Lamb v. State, 293 Ga. App. 65, 66 (666 SE2d 462) (2008).

       See Jackson, supra. See OCGA§ 16-6-4 (c); Woods v. State, 304 Ga. App. 403, 405 (1) (696 SE2d 411) (2010).

       (Punctuation and footnote omitted.) Barnes v. State, 299 Ga. App. 253, 254 (1) (682 SE2d 359) (2009).

       (Citation and punctuation omitted.) Lopez v. State, 291 Ga. App. 210, 212 (1) (661 SE2d 618) (2008).

       (Punctuation and footnote omitted.) Foster v. State, 286 Ga. App. 250, 252 (1) (649 SE2d 322) (2007).

       (Citation and punctuation omitted.) Phillips v. State, 284 Ga. App. 683, 684 (1) (a) (644 SE2d 535) (2007).

       (Citation and punctuation omitted.) Phillips v. State, 284 Ga. App. 224, 227 (1) (b) (644 SE2d 153) (2007). Accord Barclay v. State, 306 Ga. App. 766, 767 (1) (702 SE2d 907) (2010).

        Brown v. State, 300 Ga. App. 359, 361 (2) (685 SE2d 377) (2009), citing Gregg v. State, 201 Ga. App. 238, 240 (3) (b) (411 SE2d 65) (1991).

       (Citation and punctuation omitted.) Brown, supra.

        Woolums v. State, 247 Ga. App. 306, 307 (1) (540 SE2d 655) (2000). Accord Krirat v. State, 286 Ga. App. 650, 656 (2) (649 SE2d 786) (2007).

       See Phillips, supra, 284 Ga. App. at 228 (1) (b). See also Krirat, supra (parents’ presence during victims’ statements was not reversible error, although court notes that better practice would be to conduct victim interviews outside parents’ presence).

       See Kight v. State, 242 Ga. App. 13, 16 (1) (528 SE2d 542) (2000). Accord Nelson v. State, 279 Ga. App. 859, 862 (1) (a) (632 SE2d 749) (2006).

       (Citation omitted.) Phillips, supra, 284 Ga. App. at 228 (1) (b). Accord Hughes v. State, 297 Ga. App. 581, 584 (2) (677 SE2d 674) (2009).

       (Punctuation omitted.) Hughes, supra, citing Phillips, supra, 284 Ga. App. at 228 (1) (b).

       Supra at 213-214 (3).

       (Footnote omitted.) Romani v. State, 303 Ga. App. 829, 830 (1) (695 SE2d 303) (2010).

        Nguyen v. State, 273 Ga. 389, 398 (3) (543 SE2d 5) (2001) (trial court did not abuse discretion in admitting evidence of defendant’s attempt to influence witness’s testimony as showing consciousness of guilt).

        Aldridge v. State, 229 Ga. App. 544 (1) (494 SE2d 368) (1997), citing Bridges v. State, 246 Ga. 323, 324 (2) (271 SE2d 471) (1980).

       Supra.

       Id. at 544-545 (1).

       (Citations and punctuation omitted.) Id. at 545 (1).

       See id.


text:
    A12A0419.
    TAYLOR v. THE STATE.
    (727 SE2d 511)
   MlKELL, Presiding Judge.

A Bulloch County jury found Terry Lavon Taylor guilty of one count of the sale of cocaine. Taylor appeals the denial of his motionfor a new trial, arguing that because the state did not show that the crime occurred in Bulloch County, it failed to prove venue. For the reasons that follow, we affirm.

The Georgia Constitution requires that venue in all criminal cases must be laid in the county in which the crime allegedly was committed. On appeal, we review a challenge to the sufficiency of the evidence of venue “in a light most favorable to support the verdict and determine whether the evidence was sufficient to permit a rational trier of fact to find beyond a reasonable doubt that the crime was,, committed in the county where the defendant was indicted.” “The State may establish venue by use of both direct and circumstantial evidence. Further, because venue is an essential element of the State’s case and must be decided by a jury, only evidence presented to the jury may be considered on appeal.”

In the case sub judice, Officer Jody Stafford testified that at the time of the crime in question, she worked for the Statesboro Police Department as part of a special drug investigation unit targeting drug sales in Statesboro. During the direct examination of Stafford, the following exchange occurred:

Q: All right. Now this particular operation where you go in and target and that sort of thing is that here in Bulloch
County?
A: Yes.

Stafford further testified that as part of the operation, those on her team enlisted confidential informants to purchase drugs in a specified area of Statesboro. Confidential informant Willie Morris also testified that as part of this same operation, he sold crack cocaine to Taylor.

Decided April 19, 2012.

Robert L. Persse, Stuart H. Patray, for appellant.

Richard A. Mallard, District Attorney, Joseph B. Black, Assistant District Attorney, for appellee.

We have held that public officials are believed to have performed their duties properly, and not to have exceeded their jurisdiction unless clearly proven otherwise. Construed in favor of the verdict, the jury, as a rational trier of fact, was entitled to infer that the events Morris described were part of the Bulloch County drug operation about which Stafford testified, and that the sale of crack cocaine to Taylor took place in Bulloch County as part of that operation. Viewing the evidence as whole, we find that it constitutes proof beyond a reasonable doubt that the evidence was sufficient to show venue in Bulloch County. We affirm.

Judgment affirmed.

Miller and Blackwell, JJ., concur.

        Jones v. State, 272 Ga. 900, 901 (2) (537 SE2d 80) (2000).

       (Citations omitted.) Chapman v. State, 275 Ga. 314, 317 (4) (565 SE2d 442) (2002).

       (Citations and punctuation omitted.) Price v. State, 303 Ga. App. 859, 865 (4) (a) (694 SE2d 712) (2010).

       See Brinson v. State, 289 Ga. 150, 152 (2) (709 SE2d 789) (2011), citing Chapman, supra at 317-318.

        Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004).

        See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       See Price, supra at 865 (4) (a) (testimony as to officer’s county of employment coupled with evidence that crime occurred in county sufficient to establish venue).


text:
    A12A0450.
    JONES v. THE STATE.
    (727 SE2d 512)
   MlKELL, Presiding Judge.

Following a trial by jury, William Stack Jones was found guilty of reckless conduct (OCGA § 16-5-60 (b)), reckless driving (OCGA § 40-6-390), and speeding (OCGA § 40-6-181 (b) (5)), all misdemeanors. He was sentenced to 12 months in confinement, with a total of 20 days to serve and the balance on probation. Jones appeals from the conviction and the trial court’s denial of his motion for new trial, contending that the trial court committed reversible error in failing to give, sua sponte, a jury charge on justification. We find that there was no evidence to support such a charge; accordingly, we affirm.

Two witnesses testified at trial: Cobb County Police Officer James Dahlquist and Jones himself. Viewed in the light most favorable to the verdict, the évidence showed that at around noon on November 26, 2008, Dahlquist, a P. O. S. T.-certified officer with 14 years experience, while on duty in a marked police car, observed a Jaguar traveling on Interstate 285 westbound, just past the exit for Interstate 75, in the far right of three lanes of travel. The Jaguar was approaching the point where the far right lane ends by merging into the middle lane and the road narrows to two lanes. Dahlquist testified that, by his visual estimate, the Jaguar was traveling at 100 mph; and that, when measured by Dahlquist’s laser speed-detection device, the Jaguar’s speed was 103 mph. The speed limit on Interstate 285 at that location is 55 mph. Dahlquist made a traffic stop and pulled the Jaguar over. He then determined that the driver was Jones, and that Jones’s 14-year-old son was a passenger in the right front seat of the car. Jones admitted to Dahlquist that he knew that the speed limit was 55, but he said he did not know how fast he had been traveling. Dahlquist placed Jones under arrest for speeding and reckless driving. Jones was later charged by accusation with those two offenses, as well as with the offense of reckless conduct.

Jones contends that the trial court erred in denying his motion for new trial, because the trial court failed to give, sua sponte, a jury charge on his sole defense of justification. Jones relies upon Tarvestad v. State, which sets forth the principle that “[t]he trial court must charge the jury on the defendant’s sole defense, even without a written request, if there is some evidence to support the charge.” Where there is no evidence to support a justification defense, however, the rule stated in Tarvestad is not applicable: “[a] charge on the defendant’s sole defense is mandatory only if there is some evidence to support the charge.” Moreover, “[w]hether the evidence presented is sufficient to authorize the giving of a charge is a question of law.”

In the case at bar, no evidence supports a charge on justification. Contrary to Jones’s assertions in his brief, at no time did Jones testify that he accelerated to 103 mph “because he had no safer option.” In his testimony at trial, Jones admitted that he was going 90 mph, the same speed as the tractor-trailers that he testified were “all bunched up together” in the lane to his left; and that he “floored it” in order to merge left before his lane of travel ended by merging into the center lane. Jones testified that “I figured I’d be able to merge.” He explained that the tractor-trailers were bumper to bumper and were not allowing him to merge to the left. He testified:

I wanted to get over.... Nobody was letting me in, and I saw a gap ... and I floored it, because I know I have to speed up to merge.... And so I sped up,... and I shot up to that gap. And right then I saw Officer Dahlquist’s car____I was moving over into the second lane. And I had to go that fast in order to get into the traffic.

(Emphasis supplied.)

Jones testified that his alternative was to “pull over on the shoulder and just cry that I can’t handle 285 traffic.” At no time did he testify that it was unsafe to pull over; only that he did not want to. When asked why he did not just pull over, he testified that he did not know a police officer was stationed ahead of him; had he known this, he would have “gone a different way. I would have pulled over and talked to my son about the difficulties of driving on 285. But I... don’t believe that’s showing a good example for my son.” Jones testified that, due to his Army experience, he “believe [d] in taking a bold, strong response to adverse circumstances.” When asked why he did not just wait to merge, he testified that “the traffic was going ninety miles an hour . . . the only place I could merge was by speeding up.” When asked if it would not have been safe for him to just slow down and wait, he testified that he knew the road and knew that the lane merged; and that “[t]he lane was going away. The alternative would be to just pull over on the side of the road and wait — the traffic, I’m telling you, was horizon-to-horizon of tractor-trailers.” Jones denied that his son or anyone else was ever in any danger. When asked if his conduct in accelerating in order to merge with traffic going 90 mph was dangerous, he responded that “life is dangerous”; and that no one goes 55 or 65 mph on 285.

Decided April 19, 2012

Kan & Clark, Aaron M. Clark, for appellant.

Barry E. Morgan, Solicitor-General, Rachel H. Plevak, Assistant Solicitor-General, for appellee.

We conclude that this case is governed by our decisions in such cases as Moon and Odum v. State. In Odum, the defendant drove without a valid license while his son and nephew, both unlicensed, were in the car. The defendant contended that he was “left with no choice but to drive the car himself” and was therefore justified in driving. This Court concluded that the evidence did not establish the defense of justification as a matter of law, because it was the defendant’s own actions which led him to be one of three unlicensed occupants of a car and put him in the situation where the choice arose. Similarly, in Moon, the defendant, a drug addict undergoing physical symptoms of withdrawal, was convicted of theft by taking when he took a truck in an attempt to get to a clinic for medication. We ruled that the trial court did not err in failing to give a sua sponte charge on justification. Because Moon could have called 911 or sought help from bystanders, “[his] decision to take the truck was not the only option available to him”; and it was his own actions that “created the situation in which he made his choice” to steal the truck.

Similarly, in the case at bar, in a situation in which Jones knew that his lane would soon end, he refused to slow down or pull over; instead, he insisted on going 90 mph in a “little” car next to a line of tractor-trailers. His reasons for refusing to slow down or pull over do not raise the defense of justification, and the trial court did not err in failing to give a jury charge on justification sua sponte.

Judgment affirmed.

Miller and Blackwell, JJ., concur.

       This is the second appeal in this case. In Jones v. State, 309 Ga. App. 149 (709 SE2d 593) (2011), this Court determined that the trial court erred in concluding that it lacked jurisdiction to address Jones’s timely motion for new trial, which Jones filed after prematurely filing his notice of appeal. Accordingly, we remanded the case in order for the trial court to consider Jones’s motion for new trial. Id. at 149-150 (1).

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

       See OCGA§ 16-3-20.

       261 Ga. 605 (409 SE2d 513) (1991).

       (Citations omitted.) Id. at 606. Accord Price v. State, 289 Ga. 459 (2) (712 SE2d 828) (2011).

        Porter v. State, 272 Ga. 533, 535 (3) (531 SE2d 97) (2000) (where there was no evidence that defendant’s actions in shooting victim were justified, trial court was not obligated under Tarvestad to instruct jury on justification, even though it was defendant’s sole defense).

       (Citation omitted.) Id. at 534 (3).

       (Citation omitted.) Davis v. State, 269 Ga. 276, 279 (3) (496 SE2d 699) (1998). Accord Moon v. State, 244 Ga. App. 443, 446 (3) (535 SE2d 771) (2000).

       Supra.

       220 Ga. App. 263 (469 SE2d 394) (1996).

       Id. at 264.

       Id.

        Moon, supra at 444-445 (1).

       Id. at 446 (3).

       Id.