text:
    A12A1735.
    NEWTON v. THE STATE.
    (736 SE2d 752)
   Adams, Judge.

David Allen Newton was tried by a jury and convicted of burglary, theft by taking, and first degree forgery for taking jewelry while touring a home that he claimed he was interested in purchasing and using a fictitious name on a brokerage agreement. He was sentenced to twenty years for burglary, ten years for theft by taking to run concurrently with the burglary sentence, and ten years for forgery to run consecutively to the burglary sentence. The trial court ordered that upon service of nine years in confinement, Newton could serve the remaining twenty-one years on probation. On appeal, Newton challenges the sufficiency of the evidence to support his burglary conviction. He does not appeal his conviction for theft by taking or forgery.

Viewed in the light most favorable to the verdict, the evidence showed that a man identifying himself as David Flynn contacted Jessica Harris, a real estate agent in Douglas County, and told her that he was relocating from New Jersey and wanted to look at houses in the $600,000 to $1,000,000 price range. Harris met with the potential buyer and presented him with a buyer’s brokerage agreement, which he signed as David Flynn. He provided a driver’s license with his picture and the name David Flynn. They spent two full days looking at houses. At trial, Harris identified the defendant, David. Newton, as the potential buyer she had known as David Flynn.

One of the houses they planned to tour was owned by another real estate agent, Cynthia Murphy. Harris testified that the house did not have a lockbox so she called Murphy to let them in. After letting them into her house, Murphy left. While Harris and Newton were upstairs looking at the master bedroom, Harris heard a door shut and ran downstairs. Murphy had returned, and she spoke briefly to Harris while Newton was alone in the master bedroom. Murphy and Harris both went upstairs to look for Newton. Murphy checked a chest in her closet where she kept two boxes of jewelry. She saw that the two boxes were still there, but did not open them at the time. Harris found her client; they finished touring the house and left. When they got back to her car, Harris saw Newton reach into the back seat where he had stored a canvas tote bag and do something with the bag before getting into her car.

A week to ten days later, Murphy received a call from her managing broker asking her to check her house for missing items. She checkedher jewelry boxes, and they were empty. The value ofher missing jewelry was approximately $20,000. Murphy testified that from the time Newton toured her house until she discovered her jewelry was gone, only immediate family members had access to the area where her jewelry was stored.

Shay Brooks with the Douglas County Sheriff’s Office investigated the theft from Murphy’s home. After obtaining the paperwork Harris had on David Flynn, Brooks determined that the New Jersey license in the name of David Flynn was fake and received information that David Flynn was actually David Newton.

The State introduced similar transaction evidence of a theft from a home in Sandy Springs. Kelly Boudreau, a real estate agent in Atlanta, testified that she showed Newton a house as a potential buyer, and the following day, the homeowners notified her that a necklace had been taken from the house. Boudreau testified that she was not with Newton at all times while they were looking at the house. The detective investigating that theft obtained a photograph of Newton, showed it to real estate agents, and put out a buyer beware notice on the real estate listing service. He obtained an arrest warrant for Newton for theft of the necklace, which was valued at $5,000.

After he was convicted, Newton filed motions for new trial. At the hearing on those motions, counsel for Newton argued that the evidence was insufficient to support the burglary conviction because there was no evidence that he entered the house without authority. The trial court denied the motion, noting that Newton never had authority to enter the house because only a person named David Flynn was so authorized.

The burglary statute applicable when the offense was committed provided that “[a] person commits the offense of burglary in the first degree when, without authority and with the intent to commit a felony or theft therein, he or she enters or remains within an occupied, unoccupied, or vacant dwelling house of another . . . .” OCGA § 16-7-1 (b). The indictment in this case charged Newton with

entering] the dwelling house of another without authority and with the intent to commit a theft therein, to wit: Said accused did enter a room within the dwelling house of Cynthia Murphy without authority in order to commit a theft therein.

The jury was instructed that

[a] person commits the offense of burglary when, without authority and with the intent to commit a theft therein, he enters a room in the dwelling house of another. To constitute the offense of burglary, it is not necessary that it be shown that a break-in occurred or that an actual theft was accomplished.

Newton’s only claim on appeal is that the State failed to prove that he entered Murphy’s house or a room in her house “without authority.” He points out that he was escorted into Murphy’s house by Harris and argues that there was no evidence that he did not have permission to be in Murphy’s house or any room in her house at that time. The State’s response is that a fictitious person named David Flynn was granted permission to enter Murphy’s home and that David Newton never had permission to enter the house or the closet where Murphy’s jewelry was stored.

“ ‘Without authority’ ... is defined as ‘without legal right or privilege or without permission of a person legally entitled to withhold the right.’ ” (Citation and punctuation omitted.) Abney v. State, 240 Ga. App. 280, 281 (1) (523 SE2d 362) (1999).

Even assuming that the evidence at trial showed that [Newton] intended to commit a theft when he first entered [Murphy]’s residence, there was no evidence that [Newton] entered the home “without authority.” There was no indication, for example, that [Newton] forced his way in or that [Murphy] denied [Newton] permission to enter.

Bell v. State, 287 Ga. 670, 673 (1) (c) (697 SE2d 793) (2010). In fact, Murphy let Harris and Newton, her client, into her house and left them there. There is no evidence that she specified any rooms that were off limits during their tour. Cf. In the Interest of S. K., 289 Ga. App. 672, 675 (2) (658 SE2d 220) (2008) (evidence showed that defendant initially entered house with permission, but there was no evidence that he had permission to enter locked bedroom). And there is no evidence that Murphy was only willing to let someone she thought was named David Flynn into her house at that time. Murphy testified that Harris introduced her to her client, but there is no evidence that his identity had anything to do with whether he would be authorized to enter the house. Although Newton’s use of a fictitious name was relevant to the forgery charge, it had no real significance for the burglary charge — Murphy gave Harris’s client permission to enter her house that day, regardless of his name.

Relying on Gosdin v. State, 176 Ga. App. 381 (336 SE2d 261) (1985), the State argues that neither Murphy nor Harris authorized anyone to enter the house for any purpose other than viewing the home for potential purchase. In Gosdin, a part-time real estate agent was charged with four counts of burglary for using a lockbox key to enter houses that were for sale and take valuables. Id. It appears that one of the issues on appeal was whether the trial court had instructed the jury on the essential element of lack of authority to enter the victims’ houses. Id. at 384 (3). The court held that the trial court had so instructed the jury and then stated that “[tjhere was proof in each burglary that the victims had never authorized anyone to enter their houses using a lockbox key and take their personal belongings, or to do anything other than show the houses for the purpose of sale.” Id. This language, regardless of its purpose or significance in Gosdin, does not change the fact that the State was required to prove that Newton’s initial entry into Murphy’s house was without authority. OCGA § 16-7-1 (b) (formerly OCGA § 16-7-1 (a)). Possessingtheintent to commit a theft upon entry is not the same as entry without authority. See Bell, 287 Ga. at 673 (1) (c). In fact, our Supreme Court has “categorically rejected] the position that the element of an unlawful entry may be established solely by proof that an accused had the intent to commit a theft or other felony within another’s premises . . . [as] contrary to the plain language of the statute . . . .” Thompson v. State, 271 Ga. 105, 106 (1) (519 SE2d 434) (1999). And this is not a case where we must determine if Newton’s authority ceased at some point because neither the indictment nor the jury instructions included the burglary statute’s language about remaining in the dwelling without authority. See Bell, 287 Ga. at 673 (1) (c) (“evidence that, once inside the apartment, [defendant] assaulted [victim] and sought to rob him would support a conviction for ‘remain-ling)’ in the dwelling without authority, OCGA § 16-7-1 [(b)], but that portion of the burglary statute was neither charged in the indictment nor included in the jury instructions in this case”); cf. Hambrick v. State, 174 Ga. App. 444, 447 (1) (330 SE2d 383) (1985) (although defendant “initially had . . . authority to enter and remain for a friendly visit, there was sufficient evidence, including testimony of the victim’s struggle with [defendant], to create a jury question regarding whether the authority to remain ceased at the time the offensive, aggressive behavior began”).

Decided December 21, 2012

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

David McDade, District Attorney, James A. Dooley, Assistant District Attorney, for appellee.

Because the evidence did not prove that Newton entered Murphy’s home without authority, we reverse the burglary conviction. See Bell, 287 Ga. at 673 (1) (c). Newton’s remaining convictions are affirmed, and the case is remanded for resentencing.

Judgment affirmed in part and reversed in part, and case remanded for resentencing.

Barnes, P. J., and McFadden, J., concur.


source: Caselaw Access Project

author: Adams, Judge.

license: Public Domain

text:
    A12A2138.
    KENNEDY v. THE STATE.
    (735 SE2d 819)
   Adams, Judge.

Juan Kennedy entered a negotiated guilty plea to various offenses, and then timely filed a pro se direct appeal from the judgment of conviction and sentence entered on the plea. We now affirm.

Before our consideration of Kennedy’s claims, it is necessary to first examine the State’s motion to dismiss this appeal, in which it argues that there is nothing for this Court to consider in this case because Kennedy did not file and obtain a ruling on a motion to withdraw his plea, a petition for habeas corpus or a plea in arrest of judgment. It is true that a criminal defendant does not have an unqualified right to file a direct appeal from a judgment of conviction and sentence entered on a guilty plea; however, “[w]here the question on appeal is one which may be resolved by facts appearing in the record,... a direct appeal [will] lie.” Smith v. State, 253 Ga. 169 (316 SE2d 757) (1984). E.g., Smith v. State, 266 Ga. 687 (470 SE2d 436) (1996) (emphasizing that the right to directly appeal from a guilty plea is not an unqualified right). “Thus, the merits of [Kennedy’s] appeal can be addressed if, and only if, the questions that he seeks to raise on appeal may be resolved by facts appearing in the record, including the transcript of his guilty plea hearing.” Caine v. State, 266 Ga. 421 (467 SE2d 570) (1996). And

[i]n reviewing a direct appeal from a guilty plea, this Court must evaluate the enumerated errors based solely on the trial court record, including the record of the guilty plea and sentencing as well as any subsequent evidence that was properly presented to the reviewing court, assuming all of that is also properly included in the record on appeal.

(Punctuation omitted.) Tyner v. State, 289 Ga. 592, 593-594 (2) (714 SE2d 577) (2011).

Following this mandate, our starting point is to consider Kennedy’s specific claims of error on appeal.

1. In his first two enumerations of error, Kennedy contends his Fourth Amendment rights were violated by an illegal stop and search. However, Kennedy waived the right to challenge the stop and search by pleading guilty. See Burns v. State, 291 Ga. 547, 548 (2) (731 SE2d 681) (2012).

Once a defendant has solemnly admitted in open court that he is in fact guilty of the offense charged, he may not thereafter raise independent claims alleging the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. With a few limited exceptions, a plea of guilty generally waives all defenses except that based on the knowing and voluntary nature of the plea.

(Footnotes omitted.) Harwood v. State, 303 Ga. App. 23, 24-25 (692 SE2d 665) (2010).

2. Kennedy also argues his plea counsel was ineffective in various ways, including his failure to pursue a motion to suppress after the trial court gave Kennedy ten days in which to file his motion. However, the instances of alleged ineffectiveness that Kennedy raises on appeal cannot be resolved solely by facts in the record before us, but rather would require an evidentiary hearing. Thus, Kennedy’s proper remedy was to file a motion to withdraw his guilty plea, develop the record, and then appeal a denial of that motion. Coleman v. State, 278 Ga. 493, 494 (2) (604 SE2d 157) (2004); Lamb v. State, 282 Ga. App. 756, 757-758 (639 SE2d 641) (2006). Having failed to take those steps, 3and because “the trial court’s jurisdiction to entertain a motion to withdraw the guilty plea ended after the term of court in which the judgment of conviction was rendered [, Kennedy’s] only available remedy [as to these claims] is habeas corpus.” (Citation and punctuation omitted.) Lamb, 282 Ga. App. at 758. Brown v. State, 290 Ga. 321, 322 (5) (720 SE2d 617) (2012) (issue of ineffectiveness cannot be decided on facts appearing in the record; thus remedy is to file habeas petition).

Decided December 21, 2012.

Juan R. Kennedy, pro se.

3. Lastly, Kennedy contends that his Due Process rights were trampled when the trial court “browbeat” him into pleading guilty. The transcript from the guilty plea hearing discloses that Kennedy was faced with a choice between accepting the negotiated plea offer or foregoing his opportunity to plead guilty so he could file his motion to suppress. Although this was not the option Kennedy wanted, the transcript does not disclose that the trial court coerced him into entering his guilty plea. Further, because Kennedy did not file a motion to withdraw his plea and there was no post-plea hearing in which the merits of an ineffectiveness claim, including his contention that counsel should have filed a motion to suppress, ***were tested, we cannot assume that a motion to suppress might have succeeded in this case.

Based on the foregoing, the State’s motion to dismiss is denied, and the judgment is affirmed.

Judgment affirmed.

Barnes, P. J., and McFadden, J., concur.

Tom Durden, District Attorney, Joe G. Skeens, Assistant District Attorney, for appellee.

       Kennedy was charged with possession of marijuana with intent to distribute, possession of marijuana, crossing a guard line with drugs, furnishing prohibited items to inmates, and illegal use of a communication facility.

       Although Kennedy argues in his response to the State’s motion to dismiss that he did raise the issue of counsel’s effectiveness prior to filing his appeal but that the trial court took no action on this issue, the record shows that Kennedy’s motion for appointment of new counsel did not ask that his plea be set aside because of plea counsel’s ineffectiveness, but instead requested that new counsel be appointed because he believed his prior counsel was too busy to handle his direct appeal, which he referenced in his request.

       Kennedy requested that he be allowed to enter a “conditional” plea, pending the outcome of his motion to suppress, or that the plea hearing be delayed until such motion was decided.

       As our Supreme Court has cautioned:
      Although a defendant who hopes to appeal successfully from a guilty plea is not required to first file a motion to withdraw the plea, the possibility of expanding the record on which the appeal will be reviewed, and doing so with the assistance of appointed counsel if indigent', should create a strong incentive for defendants to do so. Amotion to withdraw the plea also permits the trial court to consider and correct any defects in the guilty plea in the first instance.

        Smith v. State, 287 Ga. 391, 403, n. 7 (697 SE2d 177) (2010).


author: Adams, Judge. MCFADDEN, Judge,

text:
    A12A1423.
    DAVIS v. THE STATE.
    (736 SE2d 160)
   Adams, Judge.

Undreas Davis was convicted by a jury of three counts of theft by taking and twelve counts of financial identity fraud. Davis appeals the trial court’s judgment sentencing him as a recidivist to fifteen consecutive ten-year terms, for a total of 150 years, without the possibility of parole. Davis contends that the trial court abused its discretion in sentencing him to a grossly disproportionate sentence of 150 years without the possibility of parole for these property crimes and further asserts that the trial court erred in considering his federal conviction for purposes of recidivist sentencing under OCGA § 17-10-7 (c). But Davis failed to raise any issue regarding the disproportionality of his sentence in the trial court, and thus we cannot reach that issue on appeal. Nevertheless, we agree with Davis that the trial court erred in considering his federal conviction as a basis for recidivist sentencing, and we accordingly vacate the sentence and remand for resentencing in accordance with this opinion.

Davis was convicted on March 30, 2009, and his sentencing hearing began on April 13, 2009. At that hearing, the prosecution introduced certified copies of three prior felony convictions, two from Michigan and one federal, in support of the State’s request for recidivist sentencing. Davis posed no objection to the two Michigan convictions, which were for uttering and publishing a false, forged, altered or counterfeit instrument and for making a false statement of a material fact in an application for a certificate of title. Davis’s counsel objected, however, to the introduction of his federal felony conviction for theft or receipt of stolen mail in violation of 18 US C § 1708, arguing that the State had failed to establish that this violation would be considered a felony under Georgia law as required under OCGA § 17-10-7 (c). The trial court continued the sentencing hearing at the State’s request “to give the State an opportunity to show the Court whether or not this conviction can be considered by the Court in terms of imposing recidivist punishment. . . .”

When the hearing continued on May 5, 2009, the State proffered additional evidence concerning Davis’s federal conviction for theft by receiving stolen mail, including a Rule 11 plea agreement, a transcript of Davis’s guilty plea hearing and testimony from Davis’s Georgia federal probation officer. The plea agreement and the transcript were admitted without objection. Although the prosecution represented that it was introducing a certified copy of the Rule 11 plea agreement, the only copy in the record is uncertified and is part of a packet of materials prepared and attached to a memorandum from Davis’s federal probation officer in Georgia, which was addressed to the trial judge and counsel. The record does not contain a transcript of Davis’s guilty plea. The prosecutor noted that the plea agreement contained stipulations by Davis admitting that he had possessed at least 800 pieces of mail at his residence; the mail was stolen; the mail contained the names and addresses of individuals who did not reside at his address; and the contents of the stolen mail were used to cause a loss of at least $10,600 to postal patrons. Additionally, Davis’s federal probation officer testified, again without objection, based upon her reading of a federal pre-sentencing report, presumably prepared in Michigan where the crime occurred, that Davis had used “several credit cards to purchase several items,” and that she “believe [d]” that in 2003 one transaction occurred in which he purchased $5,300 in equipment. It does not appear that the pre-sentencing report was introduced into evidence.

Although the trial court acknowledged it was a close question, the court found, based upon this evidence,

that the conduct that . . . Davis is currently on federal probation for is virtually identical to the conduct for which he has been convicted by the jury in this case, the possession of other persons’ identifying information, specifically mail[] that at least, . . . , has your name on it and names are identifying information as listed in the statute.

In addition, the trial court found that the information that the victims in the federal case had suffered a loss in excess of $10,000, made the federal conviction subject to consideration under OCGA § 17-10-7 (c). Accordingly, the trial court sentenced Davis as a recidivist to ten years for each of the fifteen convictions, running consecutively to one another, by stating:

I find that Mr. Davis is a career criminal.. .. Because other jurisdictions and other courts have refused to call Mr. Davis to justice, he’s been allowed to roam free and victimize other people. Which is so often the case that people’s criminal careers come to an end in Douglas County, Georgia as yours ha[s], Mr. Davis, because it’s the sentence of the Court that you serve ten years in prison for all 15 counts, all those sentences to run consecutively for a total of 150 years without benefit of parole. You will never victimize anyone again, sir, because you’ll be in prison for the rest of your life.

After the judge pronounced sentence, Davis attempted to speak, but the judge stopped him, stating “I don’t want to hear anything from you. You can go to jail and go to prison, sir.”

1. Davis contends that the trial court abused its discretion in sentencing him to fifteen consecutive ten-year sentences without the possibility of parole for the property crimes charged in this case, amounting to cruel and unusual punishment. Although Davis’s argument may have merit, we cannot reach the issue because Davis failed to raise it below. See Mister v. State, 286 Ga. 303, 309 (8) (687 SE2d 471) (2009); Franklin v. State, 268 Ga. 865, 867 (5) (494 SE2d 327) (1998).

Davis did not raise the issue at his sentencing hearing or in any filing before the trial court. Although Davis asserted the general grounds in his motion for new trial, including an assertion that “the verdict and sentence are contrary to law and the principles of justice and equity,” he never contended that his sentence was disproportionate or otherwise cruel and unusual. And, in fact, the attorney appointed to assist Davis post-conviction apparently informed the judge that no issues required an evidentiary hearing, that a hearing was waived and that she was asking the judge to deny Davis’s motion for new trial so that the case could proceed to this Court. The trial court denied the motion for new trial after noting that

the net effect of the procedure requested by the defendant is to prevent this court from considering, and addressing its own errors if any occurred. Thus, if the court denies the Motion, the case will proceed to the Court of Appeals upon claims of error not submitted to this court for its consideration.

Given these facts, we cannot say that the issue was preserved for appellate review.

2. Davis also argues that the State failed to establish that his prior federal conviction was a crime which, if committed in Georgia, would be considered a felony, and thus the trial court erred in relying upon that conviction to impose recidivist sentencing under OCGA § 17-10-7. We agree.

The recidivist statute “imposes maximum sentences for any person convicted of a felony who was previously convicted under the laws of any other state [or of the United States] of a crime which if committed within this state would be a felony.” (Punctuation and footnote omitted.) Woodson v. State, 242 Ga. App. 67, 70 (4) (530 SE2d 2) (2000). See OCGA § 17-10-7 (a). “In turn, if the person has three such prior felony convictions, upon a fourth felony conviction the person must serve the sentence without the possibility of parole. See OCGA § 17-10-7 (c).” Nelson v. State, 277 Ga. App. 92, 99-100 (625 SE2d 465) (2005). “The burden is on the state to produce competent evidence of a prior conviction for purposes of sentencing.” (Citation omitted; emphasis supplied.) Brinkley v. State, 301 Ga. App. 827, 830 (2) (689 SE2d 116) (2009). “The State bears the burden of showing that the foreign convictions were for conduct which would be considered felonious under the laws of this state. . . .” (Punctuation and footnote omitted.) Woodson v. State, 242 Ga. App. at 70 (4). And “ [f] ailure to properly prove the prior convictions requires remand and resentencing.” (Footnote omitted.) Id. We find that the State failed to carry its burden with regard to Davis’s prior federal conviction.

The federal indictment charging Davis with theft or receipt of stolen mail under 18 USC § 1708 alleges that he “did knowingly and unlawfully possess stolen mail and articles contained therein, to wit: mail stolen from the personal mailboxes of postal patrons residing in [two counties], with knowledge that said mail and the articles contained therein were stolen. . . .” The federal statute at issue makes theft or other interference with the mail or receipt of stolen mail a felony, without regard to intent or value. 18USC § 1708. Georgia law contains no comparable provision criminalizing the theft or possession of stolen mail per se. Thus, the State bore the burden of showing that Davis’s conduct would be considered felonious in this State.

The most closely related offenses under Georgia law are theft by taking (OCGA § 16-8-2) and theft by receiving stolen property (OCGA § 16-8-7). And in October 2003, when the federal offense occurred, each of these crimes would have been considered a felony only if the property had a value in excess of $500, and even then such crimes could have been treated as misdemeanors at the discretion of the trial judge. See OCGA § 16-8-12 (a) (1) (as enacted by Ga. L. 2003, § 1, p. 177, eff. May 15, 2003).

The prosecutor represented that Davis admitted possessing at least 800 pieces of stolen mail addressed to others and that the mail was used to cause losses in excess of $10,000 to others. But even though Davis or others may have used the mail to cause these losses, the State failed to prove how the losses occurred (i.e., whether the mail contained cash or other items valued in excess of $10,000 or whether the perpetrators used identifying information taken from the mail to commit credit card fraud, some other kind of fraud, etc.). Although Davis’s probation officer testified from her recollection of reading a federal pre-sentencing report that the federal charge involved actions apparently similar to those in this case (i.e., that Davis had used credit cards and identifying information from the mail to purchase items), this evidence was double hearsay and thus was not probative to establish the fact as to how these losses arose, even in the absence of an objection by Davis. See State v. Hodges, 291 Ga. 413, 420 (1) (728 SE2d 582) (2012) (“mere hearsay about... a prior . . . act is not probative evidence as to whether the act actually occurred. . . .”) (citation omitted) (Nahmias, J., concurring). Cf. Thomas v. State, 310 Ga. App. 404, 413 (6) (714 SE2d 37) (2011) (“[A] trial court cannot rely upon the hearsay statement of a prosecutor to establish a fact for purposes of sentencing.”) (citation and punctuation omitted).

Moreover, the State presented no evidence concerning the value of the mail and certainly did not demonstrate that the mail or its contents had a value in excess of $500. Rather the evidence established only that Davis possessed stolen mail, which was all the federal statute required. “Thus, it is not necessarily the case that the defendant’s federal conviction was for conduct which would be considered felonious under the laws of this state, and that conviction consequently cannot be considered a prior felony conviction within the meaning of OCGA § 17-10-7 [(c)].” Wallace v. State, 175 Ga. App. 685, 687 (6) (333 SE2d 874) (1985) (federal conviction for receiving, possessing, and concealing explosives could not be considered for recidivist punishment where analogous state crimes required additional proof of intent or of value in order to qualify as a felony). The trial court, therefore, erred in imposing a sentence without the possibility of parole under OCGA § 17-10-7 (c).

Accordingly, we vacate the sentence and remand for resentencing in accordance with this opinion.

Sentence vacated and case remanded for resentencing.

Barnes, P. J., concurs. McFadden, J., concurs fully and specially.

MCFADDEN, Judge,

concurring fully and specially.

I fully concur in the majority opinion. I agree that the holding in Mister v. State, 286 Ga. 303, 309 (8) (687 SE2d 471) (2009), appears to prohibit us from reaching the issue of whether Davis’s sentence amounted to cruel and unusual punishment. And I accede to the majority’s decision not to address sua sponte the question whether Mister is distinguishable on the basis that, after sentencing, the trial court refused to allow the defendant to speak and announced that he did not want to hear “anything” from him.

I write separately to respectfully note that there is tension between Division 8 oí Mister and the principle that “[a]n error of law has as its basis a specific ruling made by the trial court,” not in the various arguments that might be raised as to the soundness of that ruling. Felix v. State, 271 Ga. 534, 539 (523 SE2d 1) (1999).

The pertinent division of Mister states, in its entirety:

Mister contends that his sentence of 20 years in prison for his aggravated assault conviction constitutes cruel and unusual punishment. Mister, however, did not raise this issue below, and is therefore barred from doing so on appeal. Butts v. State, 273 Ga. 760, 771 (546 SE2d 472) (2001).

Mister, 286 Ga. at 309 (8).

Decided December 14, 2012

Reconsideration denied December 28, 2012.

Mary Erickson, for appellant.

David McDade, District Attorney, James A. Dooley, Assistant District Attorney, for appellee.

Butts, on which Mister relies, however, involved a challenge to the electric chair. It is one thing to hold, as did the court in Butts, that an appellant who argued for leniency in the particular case at bar did not thereby preserve the issue of the constitutionality of the statute authorizing execution by electrocution. It is another to hold, as did the court in Mister, that an appellant who argued for leniency did not thereby preserve the issue of whether the trial court’s decision to opt for severity exceeded the outer boundaries of constitutionally permissible severity.

The holding in Mister is in tension with the Supreme Court’s earlier holding that “the arguments supporting a position concerning a legal ruling are not themselves legal rulings.. .. Such arguments, however, must be addressed by the appellate court if necessary to its decision on the issue of the propriety of the trial court’s ruling.” Felix, 271 Ga. at 539-540 (addressing requirements as to the composition of an enumeration of the errors).

I am also concerned that the ruling in Mister puts litigants in a difficult position. Once a trial court has announced a ruling, the practice — at least among better lawyers — is to not presume an entitlement to continue to argue. And, as noted above, the trial court here was operating on the assumption that there is no such entitlement. I question the wisdom of mandating that parties do a thing they may not be entitled to do.

       Although Davis’s notice of appeal also cites the order denying his motion for new trial on the general grounds and the trial court denied Davis’s motion without a hearing, Davis does not argue on appeal that the evidence was insufficient to support his convictions. Moreover, the appellate record contains no trial transcript. Accordingly, we cannot address the facts underlying Davis’s convictions, and we must assume that the trial court properly denied the motion for new trial on the general grounds. See Arnold v. State, 305 Ga. App. 45, 48 (2) (699 SE2d 77) (2010) (in absence of transcript, appellate court must presume trial court’s findings on evidence were correct). Thus, Davis’s convictions must be affirmed.

       The trial court also indicated that credit cards Davis apparently used to make purchases belonged to the mayor of Douglasville and his wife, and that the mayor was present at the sentencing hearing.

       Although we cannot address this argument, Davis presumably may seek further relief, including asserting any claims of ineffective assistance of counsel, in a petition for habeas corpus. See OCGA § 9-14-48 (d).

       Davis does not raise, and therefore we do not address, the issue of whether he was improperly prevented from making any exception to his sentence when the trial judge preempted him at the sentencing hearing, indicating that he did not want to hear “anything” from him.

       We note, however, that Davis was not charged with and apparently did not admit stealing the mail, but rather only possessing stolen mail.

       Although the State argues that financial identity fraud (OCGA § 16-9-121) was also closely related to the federal statute, that statute requires more than mere possession. It requires wilful or fraudulent possession “with intent to fraudulently use identifying information concerning a person” or a “deceased person.” OCGA § 16-9-121 (a) (1), (3). And the State presented no admissible evidence concerning Davis’s intent in possessing the mail involved in the federal conviction. Accordingly, it is not analogous to the facts proved in connection with Davis’s federal conviction.


author: PHIPPS, Presiding Judge.

text:
    A12A1846.
    BARNES v. THE STATE.
    (736 SE2d 471)
   PHIPPS, Presiding Judge.

In connection with the robbery of a cashier at a gas station, Billy Barnes was convicted of one count of armed robbery, one count of aggravated assault, 3and two counts of possession of a firearm during the commission of a felony. On appeal, Barnes contends that (1) the evidence was insufficient to support the convictions because it consisted solely of the testimony of his alleged accomplices, and (2) the court erred in imposing two sentences on the firearm possession charges when there was only one victim in the charged incident. For the reasons that follow, we affirm the conviction for armed robbery and one of the convictions for possession of a firearm during the commission of a felony. We vacate the remaining firearm possession conviction **and remand the case for resentencing.

1. Barnes contends that the evidence was insufficient to support the convictions because the state relied solely on the testimony of his alleged accomplices.* ** This contention is without merit.

When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The jury, not this [c]ourt, resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from basic facts to ultimate facts.

Viewed in the light most favorable to the prosecution, the evidence showed the following. On the night of January 12, 2009, three masked men, two of whom had guns, entered a BP gas station (the store). One of the men pointed a gun at the cashier and demanded money; the cashier described the guns as having long barrels, and opined that the guns were probably shotguns. The men grabbed money from the register and several packs of cigarettes, and ran out of the store. Seconds before the robbery occurred, a silver vehicle occupied by several males was driven through the store’s parking lot; it was driven very slowly, circled the parking lot, then parked; after the robbery, the vehicle left.

Responding to a 911 call, police officers arrived at the store and, during their investigation, found on the ground outside the store a pack of Newport cigarettes. A crime lab analysis revealed Larry Garard’s fingerprints on the cigarette pack.

On January 15, 2009, officers initiated a traffic stop of a silver passenger vehicle registered to Tahje Williams; Garard was the driver. Barnes, Garard, Williams and three other individuals were in the vehicle. Officers found a shotgun in the trunk.

Garard and Williams were arrested, after which they gave the police statements implicating Barnes in connection with the January 12 robbery. Garard and Williams both pled guilty to charges of armed robbery and possession of a firearm during the commission of a felony in connection with the incident. The state called both men as witnesses at Barnes’s trial.

Garard testified that on January 12, 2009, he, Williams and Talore Blackford traveled to Barnes’s house in Williams’s four-door silver vehicle; Blackford brought a shotgun and a rifle to use in the robbery; Barnes, Garard, Williams and Blackford traveled in Williams’s vehicle to the store; Barnes, Garard and Williams entered the store, while Blackford waited outside in the parked vehicle; inside the store, Barnes and Garard had the guns; Garard grabbed money and packs of Newport cigarettes, dropping a pack of the cigarettes; and Garard left one of the guns used in the robbery in Williams’s vehicle. Garard testified that the shotgun the officers later found in Williams’s vehicle was the gun he had used in the robbery.

Williams testified that on or about January 12, 2009, he committed the robbery, and that Barnes, Garard, and Blackford were with him; that day, Williams had gone with Garard and Blackford to Barnes’s house, where they picked Barnes up in Williams’s silver vehicle; Blackford brought a shotgun and a rifle to use in the robbery; Barnes, Garard and Williams entered the store; Barnes and Garard each had a gun; Garard obtained the shotgun from Blackford; Garard took money and cigarettes during the robbery; and, after the robbery, Blackford drove the vehicle away from the store. At trial, Williams identified the shotgun found in his vehicle during the traffic stop as one used in the robbery. Also at trial, both Garard and Williams identified themselves and Barnes as the men shown in store surveillance photographs entering the store and committing the robbery.

Barnes testified on his own behalf, stating that he had “nothing to do with” the robbery. He testified that Garard, Williams, and Blackford came to his house on the night of January 12,2009; but that when the men left, he stayed home and went to sleep.

Barnes asserts that the evidence was insufficient because there was no physical evidence implicating him, and that the case against him was based solely on the self-serving and contradictory testimony of his alleged accomplices.

“A defendant may not be convicted on the uncorroborated testimony of an accomplice; however, only slight evidence of a defendant’s identity and participation from an extraneous source is required to corroborate the accomplice’s testimony and support the verdict.” If the testimony of one accomplice is supported by the testimony of another accomplice, the evidence is sufficient to sustain a conviction. The jury generally determines the weight of the corroborating evidence;* whether the corroborating evidence is sufficient to convict is peculiarly a matter for the jury.

Garard and Williams corroborated one another’s testimony in several respects, as set out in detail above. Further, the testimony of both accomplices was corroborated by other evidence, such as Barnes’s testimony that Garard, Williams and Blackford were at his house the night of the robbery. Ajury could have found sufficient corroboration of the accomplice testimony to support Barnes’s convictions for armed robbery and firearm possession.

2. Barnes was charged with, convicted of, and sentenced on two counts of possession of a firearm during the commission of a felony. Each of the firearm possession counts in the indictment referred to one of the two firearms possessed during the commission of the robbery of the cashier.

As the state concedes in its brief, Barnes cannot be convicted and sentenced for two firearm possession counts when there was only one victim. Because, under the circumstances presented, Barnes can be convicted and sentenced only once for possession of a firearm during the commission of a felony, the conviction for and sentence imposed on one of the two firearm possession counts is vacated. The case is remanded for resentencing.

Judgment affirmed in part and vacated in part, and case remanded for resentencing.

Ellington, C. J., and Dillard, J., concur.

Decided January 7, 2013.

Long D. Vo, for appellant.

Layla H. Zon, District Attorney, Anne M. Kurtz, Jillian R. Hall, Assistant District Attorneys, for appellee.

       OCGA § 16-8-41.

       OCGA § 16-5-21 (a) (1).

       OCGA § 16-11-106 (b) (1) (pertinently providing that any person who shall have on or within arm’s reach of his person a firearm during the commission of, or attempt to commit, any crime against or involving the person of another and which crime is a felony, commits a felony).

       At sentencing, Barnes’s aggravated assault conviction merged with his armed robbery conviction. See generally Daniels v. State, 310 Ga. App. 562, 569 (4) (714 SE2d 91) (2011).

       Regarding the appellate court’s authority to vacate one of the convictions despite Barnes’s failure to specifically assert as error the trial court’s entry of two convictions for firearm possession (his assertion concerns only the sentences imposed thereon), see Williams v. State, 277 Ga. 368, 369 (2) (589 SE2d 563) (2003) (although not raised at trial or on appeal, the conviction and sentence imposed on one of two firearm possession charges were vacated because both charges were based on the continuous possession of one gun against one victim);
        Thomas v. State, 257 Ga. 24, 25 (4) (354 SE2d 148) (1987) (while not enumerated as error, the conviction and sentence for felony murder was vacated, as appellant was found guilty of the malice murder of the same victim).

       Count 1 pertinently charged Barnes with the offense of armed robbery, for having unlawfully, with intent to commit theft, taken property from the immediate presence of the victim by use of a shotgun. Count 2 pertinently charged Barnes with aggravated assault, for having unlawfully, with intent to rob, made an assault upon the victim (the same victim named in Count 1) by pointing a shotgun and a rifle in her direction. Count 3 pertinently charged Barnes with possession of a firearm during commission of a felony, for having unlawfully had on and within arm’s reach of his person a firearm (to wit, a shotgun), during the commission of a felony (to wit, robbery). Count 4 pertinently charged Barnes with possession of a firearm during the commission of a felony, for having unlawfully had on and within arm’s reach of his person a firearm (to wit, a rifle), during the commission of a felony (to wit, robbery).

        Robinson v. State, 314 Ga. App. 545, 546 (724 SE2d 846) (2012) (footnote omitted).

        James v. State, 316 Ga. App. 406 (730 SE2d 20) (2012).

       Id. at 408 (1) (footnote omitted).

       See Sims v. State, 306 Ga. App. 68, 70-71 (1) (701 SE2d 534) (2010); Clark v. State, 294 Ga. App. 331, 333 (670 SE2d 131) (2008).

        Floyd v. State, 272 Ga. 65, 66 (1) (525 SE2d 683) (2000).

        Mullins v. State, 257 Ga. App. 40, 41 (570 SE2d 357) (2002).

       See Moore v. State, 245 Ga. App. 641, 643 (1) (537 SE2d 764) (2000) (the accused’s own statement can serve to corroborate the accomplice’s inculpatory testimony).

        See Harris v. State, 311 Ga. App. 336, 339 (715 SE2d 757) (2011); Watson v. State, 308 Ga. App. 871, 874-875 (1) (708 SE2d 703) (2011); see generally Kegler v. State, 317 Ga. App. 427, 431-432 (1) (b) (731 SE2d 111) (2012).

       OCGA § 16-11-106 (b) (1).

       See n. 6, supra.

       See Stovall v. State, 287 Ga. 415, 420-421 (5) (696 SE2d 633) (2010) (Court vacated conviction and sentence imposed on one of two firearm possession charges where defendant and his brother each used a firearm while they committed multiple crimes together, but there was only one victim); Abdullah v. State, 284 Ga. 399, 401 (4) (667 SE2d 584) (2008) (Court vacated one of two firearm possession convictions because there was only one victim); Taylor v. State, 282 Ga. 693, 697-698 (3) (653 SE2d 477) (2007).

        Stovall, supra; Abdullah, supra; Taylor, supra.


text:
    A12A1957.
    NAGATA v. THE STATE.
    (736 SE2d 474)
   PHIPPS, Presiding Judge.

Wataru Nagata was convicted of two counts of driving under the influence of alcohol and of failure to maintain lane. On appeal, Nagata claims that the trial court erred by denying his motion to exclude results of tests of his breath because the arresting officer failed, in giving the implied consent notice pursuant to OCGA § 40-5-67.1, to designate the specific state-administered test or tests for which consent was being requested. Finding no merit to Nagata’s claim, we affirm.

“Inasmuch as the issue raised involves uncontroverted evidence and no questions of credibility are presented, we will conduct a de novo review of the trial court’s application of the law to the undisputed facts.”

The evidence showed that on December 12,2009, upon observing Nagata’s vehicle fail to maintain its lane of travel, a police officer initiated a traffic stop. During the stop, the officer noticed that Nagata was not wearing a seat belt, that a strong odor of alcohol was emanating from his person, and that his eyes were red and watery. Nagata admitted having had “a couple” of drinks, the last of which he had had about an hour before the traffic stop. Based on the officer’s observations, Nagata’s admission, and Nagata’s performance on field sobriety tests, Nagata was placed under arrest for, inter alia, driving under the influence of alcohol.

The officer then read to Nagata an implied consent notice from a card. At trial, the officer read a copy of the card aloud, testifying that he had read it to Nagata as follows:

Implied Consent notice for suspects age 21 or older. Georgia law requires you to [submit to] the state administ[er]ed chem[ic]al test of your blood, breath, urine, or other bodily substances for the purpose of determining if you’re under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver[’s] license or privilege to drive will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to the testing, and results indicate an alcohol concentration of [0.08] grams or more, your Georgia driver’s license or privilege of driving on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or bodily substances at your own expense of a qualified facility of your own choosing. Will you submit to the state administered chemical tests of your blood, breath, urine or other body substances under your implied consent law?

After the notice was given, Nagata consented to a state-administered chemical test of his breath.

On appeal, Nagata points to the last sentence of the applicable implied consent notice, as set out in OCGA § 40-5-67.1 (b) (2). That sentence states: “Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?” Nagata contends that by asking him if he would consent to a test of his “blood, breath, urine or other bod[il]y substances,” the officer failed to designate a specific test or tests, as required by OCGA § 40-5-67.1 (b) (2). The contention presents no basis for reversal.

An officer may advise a person of his implied consent rights and request multiple tests at one time; and the requesting officer is authorized to decide which test or tests shall be administered. “The determinative issue with the implied consent notice is whether the notice given was substantively accurate so as to permit the driver to make an informed decision about whether to consent to testing.” By including all of the statutorily-enumerated tests, the officer did “not change the meaning of the [notice], which begins by advising the defendant that ‘Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine or other bodily substances.’ ”

We do not see

how the [officer’s] failure to designate the test to be taken changed the substance or meaning of the warning in the implied consent notice. [Nagata] was under notice that the state-administered chemical tests would be of his “blood, breath, urine or other bodily substances.” The notice given was sufficiently accurate to permit [Nagata] to make an informed decision about whether to consent to testing.

Nagata’s reliance on State v. Metzager is misplaced. That case was decided based on an officer’s failure to make a reasonable effort to accommodate a suspect’s request for an independent test by qualified personnel of his own choosing, not on an officer’s failure to designate the specific test or tests for which he was requesting consent.

Decided January 7, 2013.

Robert W. Chestney, for appellant.

Carmen D. Smith, Solicitor-General, R. Leon Benham, Assistant Solicitor-General, for appellee.

The court did not err in denying Nagata’s motion to exclude the breath test results.

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

        State v. Padidham, 310 Ga. App. 839, 842 (2) (714 SE2d 657) (2011) (punctuation and footnote omitted), aff’d, Padidham v. State, 291 Ga. 99 (728 SE2d 175) (2012).

       (Emphasis supplied.)

       (Emphasis supplied.) OCGA § 40-5-67.1 provides:
      (b) At the time a chemical test or tests are requested, the arresting officer shall select and read to the person the appropriate implied consent notice from the following: . . .
      (2) Implied consent notice for suspects age 21 or over:
      “Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?”

        Collins v. State, 290 Ga. App. 418, 420 (1) (659 SE2d 818) (2008) (implied consent notice was sufficient where officer asked suspect if he would submit to the state-administered chemical tests under the implied consent law, without asking him if he would submit to a test of a particular bodily substance; notice given was sufficiently accurate to permit suspect to make an informed decision about whether to consent to testing); see State v. Brantley, 263 Ga. App. 209, 211 (587 SE2d 383) (2003).

        Collins, supra (citation and punctuation omitted).

       See id.; Colon v. State, 256 Ga. App. 505, 507 (2) (568 SE2d 811) (2002) (trial court did not err in not excluding chemical test results based on insufficient implied consent notice where officer allegedly failed to read to suspect the final five words, “under the implied consent law”; “since the first clause of the warning is that ‘Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine or other bodily substances,’ we fail to see how such an omission could be said to have changed the substance of the meaning of the warning”).

        Collins, supra; see generally State v. Chun, 265 Ga. App. 530, 531-532 (594 SE2d 732) (2004) (chemical test results were admissible where there was no substantial basis for trial court’s conclusion that the officer’s statements to defendant regarding informed consent notice were so misleading that they rendered defendant incapable of making an informed decision about whether to submit to chemical testing).

       303 Ga. App. 17 (692 SE2d 687) (2010).

       Id. at 19.


text:
    A12A2213.
    ORANGE v. STATE OF GEORGIA.
    (736 SE2d 477)
   PHIPPS, Presiding Judge.

In this civil forfeiture case, Rudolph Orange appeals a judgment declaring two automobiles and a sum of money forfeited to the State of Georgia. Because Orange has demonstrated no reversible error, we affirm.

Citing OCGA § 16-13-49, the state filed a verified complaint for forfeiture, alleging that the Waycross Police Department had seized certain property as having been used, or intended for use, to facilitate an illegal drug trade operation or as having been found in close proximity to the unlawful drug cocaine. The complaint pertinently named as defendants in rem: (i) a 1998 Ford Crown Victoria automobile; (ii) a 1990 Cadillac Brougham automobile; and (iii) $308 in United States currency. The complaint named Orange as an owner of these items.

Represented by counsel before the trial court, Orange filed an answer, asserting ownership of those items listed above and seeking their return.

The trial court denied Orange’s claim, detailing in its order that it had:

held a hearing on the matter ... on all the issues of fact and law asserted by the State, represented by Chief Assistant District Attorney, [attorney’s name], and Rudolph Orange, represented by Attorney at Law, [attorney’s name]; THIS COURT having heard all evidence presented and argument of counsel, the Court makes the following ruling: In accordance withOCGA § 16-13-49, all property claimedby Rudolph Orange is declared to be contraband and is forfeited to the State.

The order further specified: “It is the order of this court that... One (1) 1998 Ford Crown Victoria...; One (1) 1990 Cadillac Brougham...; [and $308] in U. S. currency, the property herein named as Defendant in rem and all interests, rights, and proceeds thereto stands and is forfeited to the State.”

1. As an initial matter, we note that Orange’s brief does not comply with certain of this court’s rules. It contains no enumeration of errors, no standard of review, and no citations to the record; further, his arguments on the various issues are intermingled.

Our requirements as to the form of appellate briefs were created, not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully and efficiently comprehended by this [c]ourt. ... [A] party will not be granted relief should we err in deciphering a brief which fails to adhere to the required form.

While we observe that Orange is not represented by counsel on appeal, we reiterate that briefs such as the one filed by him “hinder this court in determining the substance and basis of an appellant’s contentions both in fact and in law and may well prejudice an appellant’s appeal regardless of the amount of leniency shown [to a pro se appellant] .”

Additionally, we note that in his notice of appeal, Orange did not request any transcript to be included in the record on appeal. “Our consideration of the contentions presented by [Orange] — who, as appellant, has the burden to affirmatively show error by the record— is affected by the meagerness of the record.”

“Nevertheless, we will address [Orange’s] arguments, insofar as we are able to ascertain them from his brief.”

2. Orange contends that the trial court erred by proceeding with the hearing, asserting that “[his criminal case] is still pending and there has not been a conviction in this matter.” Orange states: “I argue that by § 62C.01 criminal forfeiture — criminal forfeiture, (1) occurs only after a conviction, (2) after the defendant is convicted, he or she may also lose his or her interest in the property.”

Pretermitting that his factual assertion lacks evidentiary support, we discern no merit in his legal argument. The record before us, though scant, confirms that the action sub judice was pursued by the state, then considered and ruled upon by the court, as an in rem civil forfeiture proceeding under OCGA § 16-13-49. Such proceedings do not require that a conviction against the property owner be proved as an element of civil forfeiture.

3. Orange complains that his property was “forfeited by stipulation, when in fact, [he] has not made any stipulation, or any comment to the courts in writing, nor by proxy of his attorney.”

Orange’s assertion that his property was “forfeited by stipulation” is not supported by the record. According to the trial court’s order, a hearing was held relative to Orange’s claim to the automobiles and cash; Orange was represented by counsel at that hearing; the court considered all evidence and argument presented by both Orange’s lawyer and the state’s lawyer; and thereupon, the court declared the property forfeited as contraband. As stated above, Orange did not cause a transcript of the hearing to be included in the record on appeal. “Where, as here, there is no transcript of the evidence, we must conclude the evidence supported the trial court’s findings of fact which in turn support the judgment.” Consequently, Orange’s complaint provides no basis for reversal.

4. Orange contends that the trial court erred by conducting the hearing outside his presence. He asserts in his brief that “[b]y no fault of [his], he was not allowed to be present at that hearing”; that he had “express [ed] to his attorney . . . that he indeed wanted to be present at the hearing to defend and reclaim his property”; that his lawyer knew that he was incarcerated in a particular detention facility, yet his lawyer “failed to have [him] transported to the court for the hearing.” According to Orange, the trial court denied him “due process of law, which gives him... [the right] to be present to take the stand in [his] own defense.”

“A fundamental requirement of due process in any proceeding is that litigants have notice and an opportunity to be heard, but due process does not guarantee a particular form or method of state procedure. Due process is flexible and calls for such procedural protections as the particular situation demands.”*

Again, however, Orange has failed to cite any evidence supporting his underlying factual assertions — here, that his testimony was pertinent to whatever strategy (unrevealed to this court) that he and his lawyer were pursuing and that he had informed his lawyer that he wished to attend the hearing so as to take the stand (and thus be subjected to cross-examination); and we will not speculate thereon. Given the foregoing, we cannot conclude that Orange, who was represented by counsel at the civil hearing and whose evidence and argument were thus presented to and considered by the court in rendering its decision, was nevertheless deprived of due process for reason of his physical absence from the hearing. Orange has cited no authority with regard to this claim, and we have found none providing for an outcome in his favor.

Decided January 7, 2013.

Rudolph Orange, pro se.

Richard E. Currie, District Attorney, George E. Barnhill, Assistant District Attorney, for appellee.

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

       See, e.g., Court of Appeals Rule 25.

        Aldalassi v. Drummond, 223 Ga. App. 192 (1) (477 SE2d 372) (1996) (citation omitted).

        Salazar v. State, 256 Ga. App. 50 (567 SE2d 706) (2002); see Leone v. Green Tree Servicing, 311 Ga. App. 702, 704 (1) (716 SE2d 720) (2011) (noting that failure to comply with Court of Appeals Rule 25 hampers ability of reviewing court to ensure that all of appellant’s arguments are considered).

        Azordegan v. Ebrahimi, 311 Ga. App. 509 (1) (716 SE2d 528) (2011), citing Sebby v. Costo, 290 Ga. App. 61, 62 (658 SE2d 830) (2008).

        Salazar, supra; see generally Felix u. State, 271 Ga. 534, 538 (523 SE2d 1) (1999) (explaining that OCGA § 5-6-48 (f) imposes on appellate courts a duty to discern what errors an appellant is attempting to articulate; thus, if the enumeration of errors fails to enumerate clearly the errors sought to be reviewed, the appellate court is nonetheless required to consider the appeal where it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what errors are sought to be asserted upon appeal).

       See generally Division 1, supra.

       See Walker v. State of Ga., 281 Ga. App. 526, 530 (1) (c) (636 SE2d 705) (2006) (ascertaining that the complaint was “clearly in rem” because it named the truck and trailer as defendants in rem and referenced the appellant only as an owner of the items); Rojas v. State, 226 Ga. App. 688, 689-690 (487 SE2d 455) (1997) (determining that where the “complaint specifically names the property as defendants and there is nothing in it or the order granting forfeiture that suggests [the property owner] would have any personal liability,” case is “clearly in rem”); see generally Murphy v. State, 267 Ga. 120, 121 (475 SE2d 907) (1996) (explaining that, while OCGA § 16-13-49 has punitive aspects, the statute serves the nonpunitive goals, among others, of rendering illegal behavior unprofitable, ensuring that persons do not profit from their illegal acts, and removing from circulation forbidden items unlawfully used or intended for illegal use); Gravley v. State of Ga., 285 Ga. App. 691, 692 (1) (647 SE2d 372) (2007) (recognizing that, although the statute, OCGA § 16-13-49, governing forfeitures is in the criminal code, such forfeiture action is a civil proceeding).

        Walker, supra at 529-530 (1) (c) (explaining further that the in rem defendant is the property, not the property owner, who could only be described as negligent in allowing his property to become involved in the offense).

       See Division 1, supra.

        Tavakolian v. Scott, 282 Ga. 578, 579 (652 SE2d 542) (2007) (citation and punctuation omitted); see Blue v. Blue, 279 Ga. 550 (1) (615 SE2d 540) (2005) (noting that in the absence of a transcript, appellate court “must presume that the evidence supports the judge’s findings”); Portee v. State of Ga., 277 Ga. App. 536, 537 (1) (a) (627 SE2d 63) (2006) (“[W]hen a portion of the record which is necessary for our determination of one or more appellate issues is not before the court, the trial court’s express or implicit ruling as to those issues must be affirmed.”) (citation and punctuation omitted).

        Murray v. Hooks, 313 Ga. App. 485 (722 SE2d 82) (2012), citing Nodvin v. State Bar of Ga., 273 Ga. 559, 560 (3) (544 SE2d 142) (2001).

       See Portee, supra at 539 (5) (assertions that lacked an evidentiary basis demonstrated no reversible error); In the Interest of F. L. S., 232 Ga. App. 100, 101 (502 SE2d 256) (1998) (holding that party’s failure to specify how his presence would have been of assistance at the hearing precluded the requisite showing of harm); Baugh v. Robinson, 179 Ga. App. 571, 572 (346 SE2d 918) (1986) (finding no merit in appellant’s contention that he was denied due process and the opportunity to present his case, where there was no hearing transcript and thus appellate court assumed that the actions taken by the trial court during the hearing were appropriate); see also Leone, supra (reminding litigants that allegations of facts appearing only in the briefs and unsupported by evidence in the record will not be considered on appellate review).

       Accord In the Interest of C. C. E., 246 Ga. App. 584-585 (540 SE2d 704) (2000) (rejecting incarcerated father’s claim of a due process violation, where due to father’s own inability to conform to the law, the father was unable to avail himself of the opportunity to appear in person, and where father was represented in all parental termination proceedings by counsel who appeared in his stead); In the Interest ofE L. S., supra at 101 (determining that incarcerated father’s due process rights were not violated, where father could not physically attend termination proceedings because of his inability to conform his conduct to the law, the father had refused to participate via telephone, and his appointed counsel appeared in his stead, cross-examined witnesses, and argued on father’s behalf).


author: Ellington, Chief Judge.

text:
    A12A1795.
    JONES v. THE STATE.
    (737 SE2d 318)
   Ellington, Chief Judge.

Following a bench trial, the State Court of Henry County found Robert Lee Jones guilty beyond a reasonable doubt of driving while under the influence of alcohol (DUI ■— less safe), OCGA § 40-6-391 (a) (1), and possession of an open alcoholic beverage container in the passenger area of a vehicle, OCGA § 40-6-253 (b) (1) (B). Jones appeals, contending that the trial court erred in denying his motion to suppress the results of his state-administered breath test. Finding no error, we affirm.

Jones’ sole contention on appeal is that the trial court should have suppressed the breath test results because the officer who read him the implied consent notice referred only to a blood test and, as a result, he (Jones) did not knowingly and voluntarily consent to taking a breath test.

While the trial court’s findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

(Citations omitted.) Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

The trial court’s order denying Jones’ motion to suppress shows that the State and Jones stipulated to the following facts:

On October 30, 2011, Officer Gleason of the Henry County Police Department conducted a traffic stop of Mr. Jones, f] After the ensuing encounter, Officer Gleason arrested Mr. J ones for DUI. Officer Gleason thereafter read Mr. J ones the statutory implied consent notice for suspects aged twenty-one or over, specifically asking only for a blood test.[] Mr. Jones agreed. No issue is presented regarding articulable suspicion for the stop, probable cause for the arrest, or the timeliness of the implied consent warning. [] A second Henry County police officer — Officer Johnson — transported Mr. Jones to the Henry County Jail. Officer Gleason did not accompany Officer Johnson and Mr. Jones to the jail. At the jail, Officer Johnson conducted a state-administered test of Mr. Jones’ breath. No test was conducted on Mr. Jones’ blood. Before administering the breath test, Officer Johnson did not re-read the implied consent notice to ask for a breath test. There was no conversation between Officer Johnson and Mr. Jones regarding which type of implied consent test would be conducted. Nevertheless, Mr. Jones voluntarily-submitted to the state-administered breath test without protest.* *

Based upon such stipulated and, thus, undisputed facts, the trial court concluded that the results of Jones’ state-administered breath test were admissible. According to the court, the law “makes clear that police need not, at [the] time of arrest, designate the ultimate test to be performed[,]” nor is there a requirement that an officer designate all of the tests that may later be requested before performing the initial test. See OCGA § 40-5-67.1 (a) (“[T]he requesting law enforcement officer shall designate which test or tests shall be administered initially and may subsequently require a test or tests of any substances not initially tested.”); see also State v. Heredia, 252 Ga. App. 89, 90 (2) (555 SE2d 91) (2001); State v. Coe, 243 Ga. App. 232, 235 (3) (533 SE2d 104) (2000). The trial court added that, in Collins v. State, 290 Ga. App. 418, 420 (1) (659 SE2d 818) (2008), this Court found no implied consent violation even when the officer failed to designate any test but, instead, let the defendant choose whether to submit to a breath, blood, or urine test. This Court explained that “[t]he determinative issue with the implied consent notice is whether the notice given was substantively accurate so as to permit the driver to make an informed decision about whether to consent to testing.” (Citations and punctuation omitted.) Id. at 420 (1). According to this Court, because the implied consent warning begins by advising the defendant that “Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine or other bodily substances[,]” the trooper’s failure to designate the specific test to be performed did not change the substance or meaning of the implied consent warning. Id. Thus, the defendant “was under notice that the state-administered chemical tests would be of his ‘blood, breath, urine or other bodily sub stances [,]’ [and such notice] was sufficiently accurate to permit [the defendant] to make an informed decision about whether to consent to testing.” Id. Based upon this authority, the trial court in this case found that the officer’s failure to specifically designate a breath test when reading the implied consent warning did not require the exclusion of Jones’ breath test results.

Further, the trial court concluded that Jones had consented to the breath test by submitting thereto without protest, and, as a result, the test results were admissible, pursuant to this Court’s ruling in Doyle v. State, 281 Ga. App. 592, 594-595 (2) (636 SE2d 751) (2006). In Doyle, the arresting officer testified that he read the implied consent notice and that Doyle responded affirmatively when asked if he would consent to chemical testing. Id. at 594 (2). Thus, there was evidence to support the court’s finding that Doyle had consented to such test. Id. This Court went further, however, emphasizing that

the State did not have to show Doyle’s consent. The State had only to show that, after being advised of his rights pursuant to OCGA § 40-6-392, Doyle did not refuse to submit to the State-administered test. Given that Doyle, in fact, took the test, he obviously did not refuse to submit to it. Accordingly, the trial court did not err in admitting the results of the state-administered chemical test.

(Citation, punctuation and footnote omitted; emphasis supplied.) Id. at 594-595 (2). Similarly, in the instant case, it is undisputed that Jones verbally consented to blood testing following the implied consent warning given by Officer Gleason; that he never revoked such consent; that he never indicated his refusal to submit to breath testing, either verbally or nonverbally; that he never inquired about a blood test or asked for an independent test; and that there was no evidence that he was forced or coerced into submitting to breath testing. Accordingly, the trial court did not err in concluding that Doyle authorized the admission of the test results.

Finally, in a footnote in its suppression order, the trial court stated that the parties had stipulated that Jones had voluntarily consented to the breath test, and it suggested that, as a result of Jones’ consent, those test results would be admissible pursuant to OCGA § 40-5-67.1 (d. 1), even if the officers had given him no implied consent warning. Subsection (d.l), which the General Assembly enacted in 2006, amended OCGA § 40-5-67.1 by adding the following provision: “Nothing in this Code section shall be deemed to preclude the acquisition or admission of evidence of a violation of Code Section 40-6-391 if obtained by voluntary consent or a search warrant as authorized by the Constitution or laws of this state or the United States.”

Although, at the time the trial court issued its order in the instant case, this Court had not construed subsection (d. 1), except in dicta, this Court has since directly addressed the meaning and significance of the subsection in McMullen v. State, 316 Ga. App. 684, 693-694 (3) (a) (730 SE2d 151) (2012). In McMullen, the evidence showed that the defendant, who had been transported to a hospital after being involved in a serious car accident, voluntarily consented to giving a blood sample. Id. at 685-686. On appeal, however, the defendant asserted that the trial court erred in failing to suppress the results of a blood test because she was not given an implied consent warning before her blood was drawn. Id. at 693-694 (3) (a). This Court ruled, however, that, “as we have previously acknowledged, [OCGA § 40-5-67.1 (d.l)] eliminates the need to give the [implied consent] notice when an individual voluntarily agrees to testing.” (Punctuation and footnote omitted.) Id., quoting Williams v. State, 297 Ga. App. 626, 628 (677 SE2d 773) (2009). Consequently, this Court concluded that, pursuant to OCGA § 40-5-67.1 (d.l), the trial court did not err in denying McMullen’s motion to suppress based upon the officer’s failure to give an implied consent warning before her blood was drawn for testing. Id.

Accordingly, based upon the undisputed facts in this case and the aforementioned authority, we find no error in the trial court’s legal analysis, nor in its conclusion that Jones voluntarily consented to the breath test. Therefore, the trial court was authorized to deny Jones’ motion to suppress.

Judgment affirmed.

Phipps, P. J., and Dillard, J., concur.

Decided January 15, 2013.

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

Charles A. Spahos, Solicitor-General, Brian M. Johnston, Assistant Solicitor-General, for appellee.

       The detention and arrest of Jones were recorded.

       See OCGA § 40-5-67.1 (b) (2) (This statute requires an arresting officer to read the following notice to DUI suspects who are 21 years old or older: “Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs.... After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?”).

       Further, Jones stipulated that the implied consent notice was proper under OCGA § 40-5-67.1 (b) (2), with the exception of the officer’s failure to specifically designate a breath test.

       In addition, during the stipulated bench trial, the State and Jones further stipulated that Officer Gleason had intended to designate both a blood and breath test, but only verbalized a request for a blood test, and that Jones never requested a different or independent test.

       In Heredia, this Court ruled that “[t]he defendant’s right to an independent test was not compromised simply because the officer reread the implied consent warning five minutes after its first reading and changed the test designation from breath to blood and urine based on newly discovered evidence.” State v. Heredia, 252 Ga. App. at 90 (2).

       In Coe, this Court ruled that, under a former version of OCGA § 40-5-67.1 (a), which provided that “the requesting officer shall designate which test shall be administered... [and] shall require a breath test or a blood test and may require a urine test,” there “was certainly no statutory requirement that the requesting officer designate all tests to he requested before the initial test is taken[.] [F]ormerOCGA § 40-5-67.1 (a) clearly authorized a subsequent urine test if the requesting officer deemed it necessary or useful after seeing the results of the required breath or blood test.” (Emphasis supplied.) State v. Coe, 243 Ga. App. at 233 (1), 235 (3).

       Cf. Howell v. State, 266 Ga. App. 480,482 (1) (a) (597 SE2d 546) (2004) (“[U ponbeingread implied consent warnings by one of the arresting officers, Howell unequivocally revoked his implied consent. Without engaging Howell in further discourse, [the officer] arrested him and transported him to a police station],] where he directed another officer to administer the breath test. The second officer instructed Howell to blow into the breath testing device. There is no evidence Howell was asked a second time whether he would consent to a state-administered test and no evidence that he rescinded his refusal and thereafter consented. He was thus administered a breath test simply because he did not refuse to cooperate.” Under such circumstances, the trial court erred in denying Howell’s motion to suppress.) (footnote omitted).

       Ga. L. 2006, p. 329, § 2.


author: Dillard, Judge.

text:
    A12A1853.
    BUCHANAN v. STATE OF GEORGIA.
    (737 SE2d 321)
   Dillard, Judge.

Following a bench trial in this in rem civil forfeiture action, James Buchanan forfeited his truck to the State on the ground that it was used to facilitate his possession of methamphetamine. Buchanan appeals, arguing that the trial court erred in finding that the forfeiture was not excessive and in failing to make the required findings supporting the forfeiture on the record. We agree that the record does not indicate whether the trial court considered the mandatory guidelines outlined by our Supreme Court in Howell v. State of Georgia in determining whether the forfeiture was excessive. We, therefore, vacate the judgment of the trial court and remand this case with direction that the trial court consider these guidelines and make appropriate findings on the record.

Construed to support the judgment,1 the evidence shows that in late June 2011, the Cedartown Police Department and federal narcotics agents began conducting surveillance on a local residence after they observed a vehicle known to be transporting a large amount of illegal narcotics and money stop at that house. Subsequently, the agents reviewed public-utility records and determined that this residence was not receiving either power or water. However, the house and yard appeared to be well-maintained, leading the agents to believe—based on their experience—that the residence was being used to stash illegal drugs.

A few days later, on June 26, 2011, the narcotics agents arrived on the scene to begin that day’s surveillance of the house, when they observed Buchanan mowing the residence’s lawn. Approximately 15 minutes later, Buchanan finished his task and briefly spoke with an unidentified man at the home before driving away in a 2005 Chevrolet Silverado Cl50 truck with a Cobb County license plate. At that point, the agents radioed a Cedartown police officer, who was on patrol nearby, and requested that he conduct a traffic stop of Buchanan’s truck if possible. Shortly thereafter, the Cedartown police officer spotted the truck. And after observing Buchanan’s vehicle briefly swerve over the fog line, the officer initiated a traffic stop for failure to maintain a single lane.

Upon stopping the vehicle, the officer approached and immediately noticed that Buchanan was shaky and nervous. Nevertheless, Buchanan consented when the officer asked if he could search the vehicle. And after finding no illegal contraband in the truck, the officer requested that Buchanan empty his pockets. Buchanan again complied and produced some prescription pills that were not in their original container. Consequently, the officer arrested Buchanan and, in the course of conducting another search of his person, found less than one gram of methamphetamine.

Several days after Buchanan’s arrest, the narcotics agents went to the Cedartown residence that was under surveillance and spoke to the man—now identified as Sergio Carrizales—whom they had seen conversing with Buchanan. Following this conversation, the agents searched the residence and discovered a large amount of methamphetamine.

Within a month, the State filed an in rem complaint pursuant to OCGA § 16-13-49 (b) (1) (C), seeking forfeiture of Buchanan’s truck on the grounds that, inter alia, it was used to facilitate his possession of methamphetamine. During the forfeiture hearing, the parties stipulated that the truck’s value was $12,690, and the State presented evidence regarding the surveillance and eventual search of the stash house, as well as the circumstances surrounding Buchanan’s arrest. Buchanan submitted evidence indicating that he paid for his truck using money he received as a result of a Social Security disability award, and at the close of the State’s case, he moved for a directed verdict. At the conclusion of the hearing, the trial court took the issue under advisement, but less than two months later, it entered a judgment that the truck was forfeited. This appeal follows.

At the outset, we note that in rendering judgment on a complaint for forfeiture, the trial court is required to “make mixed findings of fact and law, which this Court must accept unless they are clearly erroneous.” And we defer to the trial court’s judgment as to witness credibility and will “affirm the trial court’s findings if there is any evidence supporting them.” But when the evidence is uncontroverted and no question regarding the credibility of witnesses was presented below, “we conduct a de novo review of the trial court’s application of law to the undisputed facts,... owe no deference to the trial court’s conclusions of law [, and]... we are free to apply anew the legal principles to the facts.” With these guiding principles in mind, we will now address Buchanan’s enumerations of error.

Buchanan contends that the trial court erred in finding that the forfeiture was not an excessive fine in violation of the Eighth Amendment to the United States Constitution and in failing to make on-the-record findings supporting the forfeiture, which are required by our Supreme Court’s decision in Howell v. State of Georgia.' We agree that the record does not indicate whether the trial court considered these mandatory guidelines.

In Thorp v. State of Georgia, our Supreme Court recognized that the Excessive-Fines Clause of the Eighth Amendment to the United States Constitution applies to in rem forfeitures and, for this reason, adopted a three-factor test to determine whether a forfeiture is excessive. Explaining the details of that test, the Court noted that

[t]he first factor requires a consideration of the inherent gravity of the offense compared with the harshness of the penalty. The second factor evaluates whether the property was close enough to the offense to render it guilty. The third part of the analysis is whether the criminal activity involving the defendant property was extensive in terms of time and/or spatial use.

Subsequently, this Court held that a trial court’s minimal inquiry in analyzing a challenge to a forfeiture judgment under the Excessive-Fines Clause of the Eighth Amendment must be made on the record.

Several years later, in United States v. Bajakajian, the Supreme Court of the United States held that the standard to be applied in Excessive-Fine-Clause analyses was essentially the same as that employed in cruel-and-unusual-punishment cases, holding that “a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant’s offense.” The federal courts then developed the application of that standard more fully. And in Howell v. State of Georgia, our Supreme Court found “particularly useful” the standard applied by the United States Court of Appeals for the Second Circuit in von Hofe v. United States, framing the excessiveness inquiry by considering

(1) the harshness, or gross disproportionality, of the forfeiture in comparison to the gravity of the offense, giving due regard to (a) the offense committed and its relation to other criminal activity, (b) whether the claimant falls within the class of persons for whom the statute was designed, (c) the punishments available, and (d) the harm caused by the claimant’s conduct; (2) the nexus between the property and the criminal offenses, including the deliberate nature of the use and the temporal and spatial extent of the use; and (3) the culpability of each claimant.

In adopting this standard, the Supreme Court of Georgia further noted that although the three-factor test in Thorp was not inconsistent with the test under Bajakajian that was further developed by the federal courts, it was not as complete and, therefore, was now superseded. However, nothing in our Supreme Court’s adoption of the more detailed standard for Excessive-Fine-Clause analyses obviates the requirement that trial courts make such findings and conclusions on the record. Indeed, given the increased level of detailed analysis required by Howell, it is even more important that a trial court make its findings of fact and conclusions of law on the record so as to provide an opportunity for meaningful appellate review of its decision.

Decided January 15, 2013.

Mario B. Williams, for appellant.

Robert E. Brooks, Jr., District Attorney, Andrew D. Garland, Assistant District Attorney, for appellee.

Here, Buchanan argued in his motion for directed verdict that a forfeiture of his truck would constitute an excessive fine in violation of the Eighth Amendment and, at the conclusion of the forfeiture hearing, the State requested that it be allowed to submit a response brief on the issue. The trial court agreed and took the matter under advisement. However, despite these circumstances, the trial court’s order entering a judgment of forfeiture does not indicate that the court even considered Howell or made any findings pursuant to the detailed analysis required by that decision. Accordingly, we vacate the trial court’s judgment of forfeiture and remand this case for further proceedings in the trial court consistent with Howell. Because a hearing was conducted, no further evidentiary hearing is necessary, unless the trial court concludes otherwise. But regardless of whether another evidentiary hearing is held, the trial court is directed to enter a new order including findings of fact and conclusions of law pursuant to the analysis required by Howell, and either party shall be entitled to appeal the trial court’s new order within 30 days of its entry.

Judgment vacated and case remanded with direction.

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

       283 Ga. 24 (656 SE2d 511) (2008).

        See, e.g., Walker v. State of Ga., 281 Ga. App. 526, 526 (636 SE2d 705) (2006).

        See OCGA § 16-13-30 (a).

        Little v. StateofGa., 279 Ga. App. 329, 330 (630 SE2d903) (2006) (punctuationomitted).

        Id.

        State of Ga. v. Centers, 310 Ga. App. 413, 414 (713 SE2d 479) (2011) (punctuation omitted).

       283 Ga. 24.

       264 Ga. 712 (450 SE2d 416) (1994).

        Howell, 283 Ga. at 25 (1) (citations and punctuation omitted); see also Thorp, 264 Ga. at 717 (3).

        See Salmon v. State of Ga., 249 Ga. App. 591, 592 (2) (549 SE2d 421) (2001) (holding that the record of trial court’s findings of fact and conclusions of law was insufficient to show whether the court considered the required factors in determining whether a forfeiture was an excessive fine); Mitchell v. State of Ga., 236 Ga. App. 335, 336 (1) (511 SE2d 880) (1999) (same).

       524 U. S. 321 (118 SC 2028, 141 LE2d 314) (1998).

        Id. at 334 III) (A).

        See, e.g., von Hofe v. United States, 492 F3d 175, 186 (III) (2nd Cir. 2007).

       283 Ga. 24.

       492 F3d 175 (2nd Cir. 2007).

       283 Ga. at 26 (1) (punctuation omitted).

        See id. (“[W] e adopt the analysis in von Hofe v. United States, and consider it to supersede the three-factor test in Thorp.” (punctuation omitted)).

        Cf. Clay v. State, 290 Ga. 822, 838 (3) (B) (725 SE2d 260) (2012) (holding that the trial court was required to make specific findings on the record when determining, pursuant to OCGA § 24-9-84.1, whether evidence of a defendant’s past conviction is more probative than prejudicial); Grant v. State, 302 Ga. App. 661, 665 (2) (691 SE2d 581) (2010) (holding that trial court must make findings regarding admissibility of similar-transaction evidence on the record).

        See Salmon, 249 Ga. App. at 592 (2) (vacating the trial court’s order and remanding the case for further proceedings on the grounds that the record did not indicate whether the trial court engaged in the excessive-fine analysis required by Thorp); Mitchell, 236 Ga. App. at 336 (1) (same).

        See Salmon, 249 Ga. App. at 592 (2); Mitchell, 236 Ga. App. at 336 (1).

        Id.