text:
    A13A1361, A13A1362.
    A13A1363, A13A1364.
    ECO-CLEAN, INC. v. BROWN; and vice versa. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA v. BROWN; and vice versa.
    (749 SE2d 4)
   BARNES, Presiding Judge.

Nicholas Brown was standing on the running board of Georgia Tech’s Model A mascot car while it was being driven from a fraternity house to a garage. When the car turned a corner, the handle Brown was holding detached from the car and Brown fell, striking his head on the ground. Brown sued the Board of Regents of the University System of Georgia, which owned the Georgia Tech car, and Eco-Clean, Inc., which had refurbished the car two years earlier. He asserted that the defendants were directly or vicariously liable for negligently installing or maintaining the handle that detached from the car, that the Board of Regents negligently promoted the unsafe use of the car by students on public roads, and that the Board of Regents was vicariously liable under the Georgia Tort Claims Act, OCGA § 50-21-20 et seq., for any negligence on the driver’s part while he was maintaining the car on the Board’s behalf.

The case was tried before a jury. After Brown rested, both defendants moved for directed verdicts, which the trial court denied. The jury awarded Brown $2 million in damages but decided that Brown was 32 percent liable for his damages, Eco-Clean 34 percent liable, and the Board of Regents 34 percent liable. The trial court entered judgment against the two defendants for $680,000 each. The defendants appeal, and for the reasons that follow, we affirm.

Both defendants argue that the trial court erred in denying their motions for directed verdicts because (1) as a matter of law, Brown assumed the risk of falling and injuring himself when he rode outside the car, and (2) Brown presented insufficient evidence to establish the proper standard of care for the installation and maintenance of the handle that detached from the car. Additionally, Eco-Clean argues (3) that Brown failed to present evidence that the handle was unfit for its intended use, and the Board of Regents argues (4) that Brown presented no evidence that supported a finding that the Board was liable for Brown’s injuries. In cross-appeals, Brown contends that, if this court agrees with the defendants that Brown presented insufficient standard of care evidence, then the trial court erred in excluding the testimony of Brown’s expert witness.

In reviewing the denial of a motion for directed verdict, we construe the evidence in the light most favorable to the prevailing party, and determine whether there is “any evidence” to support the jury’s verdict. Ga. Power Co. v. Irvin, 267 Ga. 760, 762 (1) (482 SE2d 362) (1997). So viewed, the evidence at trial showed that the Board of Regents owned the car, but ceded control and responsibility to the “Ramblin’ Reck Club,” a chartered student organization. The club’s purpose was to maintain and operate the car and to promote school spirit. While the club had an assigned faculty or staff advisor, the advisor was not involved in the club’s day-to-day activities. According to the Dean of Students, maintenance of the car was “strictly the students’ responsibility through the driver.”

Club members annually elected a new driver, who had exclusive control over and responsibility for the car. Students were probationary members for the first year after they joined, and gained points by participating in activities involving the car, wearing the club shirt, and washing the car, among other things. The drivers from 2007, 2008, and 2009 testified during the trial. In addition to school-sponsored events such as athletic games and parades, two of the drivers drove the car with students standing on the running board at least once a week on public roads throughout the campus, simply to raise school spirit. The car’s upkeep was funded by sponsors and by renting out the car for private events such as weddings.

In 2007, the driver was pulling the Tech car on a trailer to a wedding in Savannah when the trailer’s brakes locked up. The driver’s vehicle and the trailer spun 180 degrees and the trailer capsized in a ditch, totaling both the driver’s vehicle and the Tech car. Because the car had been present at every Tech home football game since the school acquired the car in 1961, students and alumni were anxious to have the car repaired in time for Tech’s first game of that season, which was 85 days away. Many people and companies volunteered their services to fix the car, and the driver coordinated the efforts. One company repaired the bodywork, other entities donated various small parts, and the owner of Eco-Clean’s parent company, who was a Georgia Tech alumnus, volunteered Eco-Clean’s services to redesign and repair the car’s interior and roof.

Eco-Clean reupholstered the car seats and added soundproofing and an interior lining to the roof. Before the wreck, students standing on the car’s running boards could hold on by grasping part of the roof’s wooden frame, but with the lining installed, the frame was no longer visible and could not be gripped. While Eco-Clean’s manager testified that Eco-Clean did not install the interior handles, he admitted that the handles had been installed while the car was at Eco-Clean’s shop, possibly by subcontractors Eco-Clean had hired to do the upholstery work. The 2009 driver, who had been closely involved in the club in 2007 when the car was repaired, testified that Eco-Clean installed the interior handles. Eco-Clean’s owner testified that the company generally stood behind the work that was done at its shop. The car was repaired in time for its scheduled appearance at Tech’s first home game of the 2007 season.

Brown joined the Ramblin’ Reck Club in spring 2009 as a probationary member, and was dedicated to earning more points than anyone else. In April 2009, the driver, Brown, and two other club members took the car from its garage to a fraternity house where other students examined it to see if they could effect certain repairs. After the students examined the car, the driver began driving it back to the garage, less than a quarter of a mile away. Brown stood on the passenger side running board, grasping an interior handle with one hand and an exterior handle with the other, which was how he had been instructed to hold on. The driver turned on to Techwood Drive from the fraternity parking lot, drove less than a block, then turned left onto Ferst Avenue. The driver heard two pops and saw Brown’s hand, still grasping the handle, disappear out through the window as he fell from the running board. Brown struck his head on the road and blacked out. When the club members came to his aid, he was still holding the handle in his hand. The handle had been attached with wood screws one-half to three-quarters of an inch long, and the driver was surprised that the screws were so small.

Brown fractured his right temporal bone and was in the hospital for four days. Blood and spinal fluid drained from his ear for weeks afterward, and he experienced headaches, problems with his balance, dizziness, and nausea, all of which gradually improved. He permanently lost his senses of taste and smell, as well as his hearing in one ear, which rings constantly.

1. On appeal, both Eco-Clean and the Board of Regents argue that the trial court erred in denying their motions for directed verdict because as a matter of law Brown assumed the risk of falling from the car and being injured by standing on the running board of a moving car. Thus, they contend, Brown’s assumption of the risk bars him from any recovery.

The affirmative defense of assumption of the risk bars recovery when it is established that a plaintiff, without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not. In Georgia, a defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks.

(Punctuation and footnotes omitted.) Muldovan v. McEachern, 271 Ga. 805, 807-808 (2) (523 SE2d 566) (1999).

In this case, Eco-Clean argues that the evidence demanded a finding that Brown assumed the risk of injury and was thus barred from recovery. It points out that an eyewitness testified that the car accelerated through a red light, and argues that the car was turning “at an unusually high rate of speed” when Brown fell. Further, Eco-Clean argues that Brown assumed the risk that the handle would fail. The Board of Regents argues that Brown relied on an interior handle that was not intended to support the centrifugal force of an adult man holding on while the car turned the corner at a rate faster than it traveled at sanctioned events such as games and parades.

The defendants argue that Brown assumed the risk as a matter of law that he might fall from the running board of a moving car just as a person who “car surfs” assumes the risk of falling from the car, citing Teems v. Bates, 300 Ga. App. 70 (684 SE2d 662) (2009). However, the posture of that case was different. There, the plaintiff was appealing a defense verdict and alleged that the trial court erred in charging the jury on the law of assumption of risk. Id. at 77 (1). We found no error because the defendant introduced at least slight evidence that the plaintiff had assumed the risk of falling and being injured by lying on the back windshield of a car and holding on to the edge of the open sunroof while the driver circled a parking lot. Id. at 71, 77.

We have held in other cases that, because “reasonable minds might disagree as to whether the fender of an automobile is such an obvious place of danger under all circumstances that a person sitting thereon would be barred from recovery as a matter of law,” the issue was “ordinarily left as a question of fact for the jury rather than as a matter of law for the court.” Lassiter v. Poss, 85 Ga. App. 785, 788-789 (1) (b) (70 SE2d 411) (1952). Similarly, whether standing on the running board of a moving car is such an assumption of risk that bars recovery may also be a jury question. Bramlett v. Hulsey, 98 Ga. App. 39, 41 (1) (104 SE2d 614) (1958); Atlantic Ice & Coal Co. v. Folds, 47 Ga. App. 832 (171 SE 581) (1933). We have held on numerous occasions that “a person is not necessarily barred of a recovery . . . merely because of the fact that the plaintiff was riding on the fender, running board, or other exposed place on the automobile of the host driver.” Wilks v. Lingle, 112 Ga. App. 176, 177 (3) (144 SE2d 552) (1965).

In this case, upon both defendants’ requests, and over Brown’s objection, the trial court charged the jury on assumption of risk. The charge properly instructed the jury that a defendant asserting an assumption of the risk defense had the burden of establishing that the plaintiff had actual knowledge of the danger, understood and appreciated the risk, and voluntarily exposed himself to the risk, but that “assumption of risk does not extend to assuming the negligent act of another.” See Little Rapids Corp. v. McCamy, 218 Ga. App. 111, 113 (1) (460 SE2d 800) (1995).

The evidence presented did not demand a finding that Brown assumed the risk of injury as a matter of law due to improper installation of the handles or negligence of the driver. Accordingly, under the “any evidence” test, the trial court did not err in denying the defendants’ motions for directed verdict based on their assumption of risk defense.

2. Both Eco-Clean and the Board of Regents argue that Brown presented no evidence establishing the standard of care to be used when installing or maintaining a handle of this nature, and therefore failed to prove that the handle was negligently installed.

The exterior handles, which were installed on either side of the back window, were attached with bolts. Eco-Clean employees regularly installed handles in the course of their work renovating classic cars, and Eco-Clean’s then-general manager had experience with how to safely install handles in a car for people to hold on to. The manager inspected the quality of handle installation by “general observation and looking] at the product,” and he admitted observing the installation of the exterior rear handles on the Tech car. In his opinion, those handles were installed safely for their intended application by using bolts, which was the proper method for installing the particular handles that he had bought. Screws would not have been a proper method for installing those handles, he testified, because the holes were threaded for machine bolts and screws would not have fit.

The trial court overruled Eco-Clean’s objection to asking the manager about the difference between a bolt and a screw, concluding that a witness did not have to be an expert to answer that question. The manager explained that normally a certain type of threading requires bolts, whereas a screw is often “self-tapping,” or creates its own threads in the material into which it is screwed. He agreed that the handles Eco-Clean installed on the Tech car needed to be safe enough for people to hang on to while standing on the running board, and that bolts were stronger than screws. According to the manager, the exterior handles were installed using bolts instead of screws because it was safer that way. The driver testified that he told the manager that people standing on the running board needed something robust to grab on to, which was the purpose of installing the interior handles.

Both defendants argue that this evidence was insufficient to allow the jury to conclude that the interior handles were improperly installed. But in a similar case, this court held that a jury “was authorized to conclude from the evidence that Southern Bell had installed the telephone in a negligent manner, it being common knowledge that a heavy object such as a pay telephone cannot be securely fastened to a particle board wall by ordinary wood screws.” Southern Bell Tel. & Tel. Co. v. LaRoche, 173 Ga. App. 298, 299 (1) (325 SE2d 908) (1985). No expert opinion is required when the issues are not “shrouded in the mystery of professional skill or knowledge.” (Punctuation and footnote omitted.) Bailey v. Annistown Road Baptist Church, 301 Ga. App. 677, 689 (12) (689 SE2d 62) (2009). For example, “[t]he courts are required to take notice of primary physical laws,” such as the fact that an automobile is made of heavy metal and is likely to crush someone if it lands on her. McGraw v. State, 85 Ga. App. 857, 861 (2) (70 SE2d 141) (1952).

Similarly, whether ordinary wood screws one-half inch long were sufficient to fasten a handle for someone to hold while standing on the running board of a moving car is not an issue so shrouded in the mystery of professional skill or knowledge that expert testimony was required for a jury to understand it. Furthermore, from the testimony of Eco-Clean’s manager that the company installed the exterior handles with bolts instead of screws because it was safer and was the proper method of installation, the jury was authorized to infer that bolts would likewise have been the safe and proper means for fastening the interior handles. Accordingly, the trial court did not err in denying the defendants’ motions for directed verdict on this ground.

3. Eco-Clean argues that Brown failed to present sufficient evidence that the interior handle was unfit for its intended use. Basically, the company argues that it was not negligent because Brown was using the handle in a way that was not foreseeable and Brown introduced no evidence that Eco-Clean knew or should have known that the interior handle would be used by a person standing on the running board “to anchor themselves during sharp turns at road-travel speed during an unlawful ride on the public streets.”

The argument that Brown failed to introduce evidence of the handle’s intended use or that the handle was improperly designed and installed echoes the assumption of risk arguments addressed in Division 1. While Eco-Clean asserts that the 2007 driver acknowledged he did not inform Eco-Clean about the handle’s intended use, the question was whether the driver told Eco-Clean that the handles would be used by people standing on the running board when the car was being driven on public streets rather than during football games or parades. The driver testified subsequently that he discussed with Eco-Clean’s manager that the car needed handles to give people standing on the running board “something more robust to grab on to.”

Considering that the standard for appellate review of a directed verdict is the “any evidence” test, Southern Gen. Ins. Co. v. Holt, 262 Ga. 267, 268 (1) (416 SE2d 274) (1992), and construing the evidence in Brown’s favor, we find no error in the trial court’s denial of Eco-Clean’s motion for a directed verdict on liability.

4. The Board of Regents argues that the trial court erred in dismissing its motion for a directed verdict because “Brown presented no evidence upon which a jury could have found [it] liable.” In arguing that it should not be held responsible for “bad decisions made by its students,” the Board of Regents essentially contends that (a) Brown introduced no evidence that the Board knew or should have anticipated that students would ride on the outside of the car on a public street at times other than during a parade or school function, (b) even if the Board knew or should have known that the students rode on the outside of the car on public streets other than during parades or school functions, there was no evidence that the Board knew or should have anticipated that the interior handles had been installed defectively, and (c) the Board had no duty to protect Brown from engaging in the inherently dangerous unauthorized activity of riding on the outside of the car on public streets at times other than parades or school functions.

Brown responds that the evidence was sufficient to affirm the verdict under several different grounds of liability. The Board of Regents conceded that the driver was acting as an officer or employee of the State in maintaining the car, and because some evidence supports a finding of liability against the Board of Regents on this basis, we need not address any other grounds.

After the trial court entered a consolidated pre-trial order, the parties deposed an eyewitness to the incident who testified that the driver of the Georgia Tech car sped up and ran a red light before making the turn where Brown fell off. Based on this witness’s testimony, over the Board’s objection, the trial court granted Brown leave to amend his complaint to allege that the Board of Regents was vicariously liable for any negligent acts or omissions of the driver. In his amended complaint, Brown alleged that “Defendant Board of Regents is vicariously liable for the acts of its employees and agents, including but not limited to officers and members of the Ramblin’ Reck Club who oversaw the maintenance and repair of the Ramblin’ Reck or who drove the Ramblin’ Reck at the time of the incident.”

Decided September 24, 2013

Reconsideration denied November 7, 2013.

Temple, Strickland, Dinges & Schwartz, Jason B. Schwartz, Bondurant, Mixson & Elmore, Naveen Ramachandrappa, Michael A. Copian, Frank M. Lowry TV, for appellant (case no. A13A1361).

Samuel S. Olens, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, G. Michael Banick, Sharon P. Horne, Assistant Attorneys General, for appellant (case no. A13A1363).

Slappey & Sadd, James N. Sadd, Edward M. Wynn, Daniel M. Epstein, for appellee.

Eco-Clean presented the video deposition of the eyewitness at trial, and argued that if the jury decided that Brown fell from the car because the driver ran a red light and took the turn at an excessive speed, then the Board of Regents was liable for Brown’s damages rather than Eco-Clean. During the charge conference, the Board of Regents agreed that the driver was on official club business — maintaining the car owned by the Board — when Brown was injured. The driver was therefore a state officer or employee under the Tort Claims Act, OCGA § 50-21-22 (7), and sovereign immunity was waived for any torts committed by the driver while in the course and scope of his official duties or employment, per OCGA § 50-21-23 (a).

Because some evidence introduced at the trial authorized the jury to determine that the driver of the car acted negligently while he was within the course and scope of his official duties or employment with the Board of Regents, the trial court did not err in denying the Board’s motion for a directed verdict. We therefore discern no basis for reversal.

Judgment affirmed.

Miller and Ray, JJ., concur.

       Eco-Clean denied throughout the litigation that it had installed the interior handles, but does not dispute on appeal that there was some evidence at trial indicating that it had installed them.

       Although the trial court charged the jury without objection that the Board was liable for the torts of its agents committed within the scope of their agency and on the law of respondeat superior and principal and agent, the legislature amended the Tort Claims Act to exclude “agent” from the definition of “state officer or employee,” and further amended the Act to specify that independent contractors doing business with the state were not “state officers or employees.” OCGA § 50-21-22 (7); Coosa Valley Technical College v. West, 299 Ga. App. 171, 175-176 (2) (682 SE2d 187) (2009).


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A13A0657.
    LUKE v. THE STATE.
    (751 SE2d 180)
   Boggs, Judge.

Following a joint trial with co-defendants Tchywaskie Jones and Jerry Harris, Dabkowski Luke appeals from his convictions of aggravated assault and a violation of the Georgia Street Gang Terrorism and Prevention Act, OCGA § 16-15-1 et seq. Luke asserts several errors, including that insufficient evidence supports his convictions and that the trial court erred by failing to grant a mistrial when the State used facts not in evidence during its closing argument. Based upon the Supreme Court of Georgia’s recent opinion involving the appeal of his co-defendant Jones, we reverse his conviction under the Street Gang Act based upon insufficient evidence. We grant a new trial on his conviction for aggravated assault based upon our conclusion that sufficient evidence supports his conviction, but the trial court erred in failing to grant a mistrial.

1. The evidence introduced against Luke with regard to his Street Gang Act conviction is identical to that which the Supreme Court found insufficient to support Jones’ Street Gang Act conviction in the same trial. Jones v. State, 292 Ga. 656, 659-660 (1) (b) (740 SE2d 590) (2013). We therefore conclude that insufficient evidence also supports Luke’s conviction under the Street Gang Act. Id.

2. The Supreme Court summarized the aggravated assault evidence against Jones as follows:

[T]he evidence ... shows that Jones went to the pool with his firearm and several accomplices to settle a dispute, that he and his accomplices loaded weapons as they approached the pool, that they arrived at the pool at roughly the same time as Harris, that a gunfight ensued between Harris, on the one hand, and Jones and his accomplices, on the other, and that Jones participated in the gunfight by firing his weapon. Although it is undisputed that [the innocent bystander] was shot by Harris, OCGA § 16-2-20 (a) provides that “[ejvery person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” Jones is correct, of course, that mere presence or approval of a criminal act is not sufficient to render one a party to the crime, and a conviction as a party to a crime requires proof that the defendant shared a common criminal intent with the principal perpetrator of the crime. But criminal intent is a question for the jury, and it may be inferred from that person’s conduct before, during, and after the commission of the crime. Perkinson v. State, 273 Ga. 814, 816 (546 SE2d 501) (2001); see also Brown v. State, 291 Ga. 887, 888 (1) (734 SE2d 41) (2012); Pruitt v. State, 282 Ga. 30, 32 (1) (644 SE2d 837) (2007); Eckman v. State, 274 Ga. 63, 65 (1) (548 SE2d 310) (2001); Jordan v. State, 272 Ga. 395, 396 (1) (530 SE2d 192) (2000). From the circumstances proven in this case, a rational jury could have inferred that Jones shared a common criminal intent with Harris to engage in a gunfight in the presence of the innocent bystanders at the pool. See Emmanuel v. State, 300 Ga. App. 378, 380 (1) (685 SE2d 361) (2009). And even though [the bystander] evidently was not an intended victim of the gunfight, the evidence was sufficient for a rational trier of fact to find that Jones was a party to the crime of aggravated assault under the doctrine of transferred intent. See id. See also Hendricks v. State, 290 Ga. 238, 240 (1) (719 SE2d 466) (2011); Smith v. State, 279 Ga. 423 (614 SE2d 65) (2005) (“[W]hen an unintended victim is struck down as a result of an unlawful act actually directed against someone else, the law prevents the actor from taking advantage of his own wrong and transfers the original intent from the one against whom it was directed to the one who actually suffered from it.”) (citation and punctuation omitted); Perry v. State, 276 Ga. 836, 837 (1) (585 SE2d 614) (2003) (evidence sufficient to sustain appellants’ convictions for aggravated assault (and other charges) either directly or as a party to the crime where one of the appellants fired a weapon during a dispute with a rival group and two innocent bystanders were shot). Accordingly, the evidence adduced at trial is legally sufficient to sustain the aggravated assault conviction.

Jones, supra, 292 Ga. at 658-659 (1) (a). Luke contends that this court should nonetheless conclude that insufficient evidence supports his aggravated assault conviction because there was no evidence showing that he participated in the gunfight and the circumstantial evidence against him did not exclude every reasonable alternative hypothesis of innocence.

Viewed in the light most favorable to the verdict, the record shows that Luke, Jones, Jarnay Evans, and others drove together to a pool “to fight because they were upset about [Luke]’s son being hit” accidentally in the face during an altercation between two groups of women at the pool. During the altercation, men were encouraging a group of women to fight with another group that included Luke’s girlfriend. Luke learned about the incident after Luke’s girlfriend called him and told him what had happened to his son.

According to a statement provided by Evans, Luke, Jones, Evans, and their other companions did not go to the pool to shoot anyone, but instead to fight with any men who may have been responsible for the earlier incident. The record also shows that during the drive to the pool, Jones asked for “some .22 ammo” because he had only one bullet, but no one in the car had any to give him. According to Evans, no one in his group had a weapon out and they were “fixing to leave” when Harris started firing at their group.

An off-duty police officer who observed the shoot-out testified that the shooting began within two minutes after the vehicle carrying Luke, Jones, and Evans arrived at the pool. He testified that he was “mainly focused” on Harris before the shooting began because he saw him walk past with what appeared to be a weapon in his pants. Harris began shooting after Luke, Jones, and Evans got out of their car. The officer did not see anyone else with a gun in their hand because he was focused on Harris; he was not looking at Luke, Jones, and Evans when Harris began firing.

We find this evidence sufficient to support the jury’s decision to find Luke guilty of aggravated assault as a party to the crime. “Whether a defendant was a party to the crime and aided and abetted in the commission of a crime is a matter for the trier of fact.” Cook v. State, 314 Ga. App. 289, 291 (723 SE2d 709) (2012). Additionally, “it is the jury’s duty as factfinder to weigh the evidence presented at trial and to determine the credibility of the witnesses. It is not obligated to believe any witness, and it may accept or reject any portion of a witness’s testimony.” McKinney v. State, 293 Ga. App. 419, 420-421 (1) (667 SE2d 210) (2008).

Here, a rational jury could have concluded that Luke and Jones went to the pool for the purpose of engaging in a gunfight based upon evidence showing that they, along with their other companions, planned to fight after learning about the injury to Luke’s son and that Jones sought ammunition for his weapon during the drive to the pool. As this court has previously noted, sufficient evidence supports an aggravated assault conviction even though “the defendant, while present during the crime, did not verbally threaten the victim; did not hold, shoot, or supply the gun used; and claimed no advance knowledge of the crime.” Cook, supra, 314 Ga. App. at 293. See also Garcia v. State, 290 Ga. App. 164, 165 (2) (658 SE2d 904) (2008) (affirming aggravated assault conviction as party to crime even though appellant did not participate in the shooting). “Proof that the defendant shares a common criminal intent with the actual perpetrators is necessary, and may be inferred from the defendant’s conduct before, during, and after the crime.” Id.

We find no merit in Luke’s contention that insufficient evidence supports his conviction because the circumstantial evidence against him did not exclude every reasonable hypothesis other than guilt. This rule applies “only where the evidence is entirely circumstantial.” Emerson v. State, 315 Ga. App. 105, 114 (4) (726 SE2d 600) (2012). In this case, the State presented direct evidence that Luke went to the pool with Jones for the purpose of fighting and that Jones asked for ammunition during the drive to the pool. See id.

3. Having concluded that sufficient evidence supports Luke’s aggravated assault conviction, we must nonetheless grant him a new trial on this charge based upon the Supreme Court’s holding that Jones was entitled to a new trial as a result of the prosecutor’s statements during closing argument that Jones was involved in a gang shooting in an unrelated incident. See Jones, supra, 292 Ga. at 660-662 (2). Luke raises the same error in this appeal, requested a mistrial on the same ground below, and when the trial court denied the motion, requested a curative instruction. Luke also objected that the trial court’s curative instruction was inadequate.

While the prosecutor’s improper comment referred to an incident involving only Jones, we cannot say that it was harmless with regard to Luke. The evidence against Luke was not overwhelming, and there was no evidence presented that he was associated with a gang or that the shooting was gang related. See Jones, supra, 292 Ga. at 662 (2), n. 9. But the State charged Luke with a violation of the Street Gang Act and argued at trial that Jones, Luke and others were members of a gang and that the shooting was gang-related, and in doing so focused upon evidence that Luke traveled to the pool with Jones, lived with Jones, and that Jones’ .22 caliber pistol was found outside their home. Because the State presented argument connecting Jones and Luke to one another and to gang-related activity, we cannot conclude that the improper argument concerning Jones’ involvement in an unrelated gang shooting was harmless to Luke. Under these circumstances, just as the improper argument required reversal of Jones’ aggravated assault conviction, see id. at 662 (2), it also requires reversal of Luke’s conviction.

Decided November 7, 2013.

Kevin C. Armstrong, for appellant.

Gregory W. Edwards, District Attorney, Matthew Breedon, Assistant District Attorney, for appellee.

We accordingly reverse Luke’s aggravated assault conviction.

Judgment reversed.

Doyle, P. J., and McFadden, J., concur.

        Jones v. State, 292 Ga. 656 (740 SE2d 590) (2013).

       The indictment alleged that Luke committed aggravated assault with a handgun against the victim bystander as a party to the crime. As the Supreme Court noted, “it is undisputed that [the bystander] was shot by Harris.” Jones, 292 Ga. at 658 (1) (a).


author: McFadden, Judge. BOGGS, Judge,

text:
    A13A0981.
    TERRELL COUNTY BOARD OF TAX ASSESSORS v. GOOLSBY et al.
    (751 SE2d 158)
   McFadden, Judge.

The Terrell County Board of Tax Assessors (“the board”) appeals the decision of the superior court that Jason and Brian Goolsby did not breach a conservation use covenant. As to the threshold issue of jurisdiction, we reject the Goolsbys’ argument that the notice of appeal was untimely; the superior court properly extended the appeal deadline.

As to the merits, the board contends that the Goolsbys breached the covenant by operating a commercial grain business on the property, notwithstanding that the property otherwise qualified as a bona fide conservation use property. The superior court rej ected the board’s contention, holding that procuring or operating a business on the subject property cannot constitute a breach of the covenant. In so holding the superior court erred. But if use of the property in a business is incidental, occasional, intermediate or temporary and not detrimental to or in conflict with its primary, qualifying use of the property, procuring or operating a business on otherwise qualified property is not a breach of the agreement and does not prevent the property from being classified as bona fide conservation use property. Because the superior court’s analysis was founded on an erroneous construction of the bona fide conservation use covenant statute, we vacate the judgment and remand to the superior court for reconsideration.

The parties entered a stipulation of facts. The superior court conducted a hearing and made additional findings of fact, which the parties do not dispute. “On appeal, the application of law to undisputed facts is subject to de novo review.” Wheeler County Bd. of Tax Assessors v. Gilder, 256 Ga. App. 478 (568 SE2d 786) (2002) (citation omitted).

The bona fide conservation use covenant statute is OCGA § 48-5-7.4. Under that provision,

owners of “bona fide conservation use property,” including property used for certain agricultural purposes and meeting other statutory criteria and conditions, may apply to the county board of tax assessors for “current use assessment” of their property for purposes of calculating ad valorem taxes. If the application is granted, the property is assessed for tax purposes at 40 percent of its “current use value” instead of 40 percent of its “fair market value,” OCGA § 48-5-7 (a), (c.2), resulting in tax savings.

Morrison v. Claborn, 294 Ga.App. 508, 509, n. 1 (669 SE2d 492) (2008) (citation omitted). When such an application is granted, “the landowner receives a significant tax advantage, and a portion of the tax burden is shifted to other land owners, [so] the qualifying landowner must make substantial promises and covenants.” Susan L. Daniels, Ad Valorem Taxation of Property: Provide for the Ad Valorem Taxation of Timber and Current Use Valuation/Taxation of Bona Fide Conservation Use Property and Bona Fide Residential Transitional Property, 8 Ga. St. U. L. R. 181, 186 (1991). (Available at: http://scholarworks. gsu.edu/gsulr/vol8/issl/34).

In pertinent part, the statute defines “bona fide conservation use property” to mean:

Not more than 2,000 acres of tangible real property of a single person, the primary purpose of which is any good faith production, including but not limited to ... commercial production, from or on the land of agricultural products ..., subject to the following qualifications: (A) Such property includes the value of tangible property permanently affixed to the real property which is directly connected to such owner’s production of agricultural products ... and which is devoted to the storage and processing of such agricultural products . . . from or on such real property^]

OCGA § 48-5-7.4 (a) (1). “Primary purpose” means the principal use to which the property is devoted. Ga. Comp. R. & Regs. r. 560-11-6-.02 (e). An “incidental, occasional, intermediate or temporary use [of the property] for some other purpose not detrimental to or in conflict with its primary purpose” does not prevent otherwise qualified property from being classified as bona fide conservation use property. Id. Permissible primary purposes include using the property for raising, harvesting, or storing crops; feeding, breeding, or managing livestock or poultry; producing plants or animals; and producing horticulture, dairy and livestock products. OCGA § 48-5-7.4 (a) (1) (E) (i)-(iv). OCGA § 48-5-7.4 (b) (1), which sets out additional rules for the qualification of conservation use property for current use assessment, provides in pertinent part “When one-half or more of the area of a single tract of real property is used for a qualifying purpose, then such tract shall be considered as used for such qualifying purpose unless some other type of business is being operated on the unused portion. . . .” (Emphasis supplied.)

In order to obtain current use assessment, the owner of property that qualifies as bona fide conservation use property must “agree [ ] by covenant with the appropriate taxing authority to maintain the eligible property in bona fide qualifying use for a period of ten years ....” OCGA § 48-5-7.4 (d). Failure to maintain the property in qualifying use status breaches the covenant. OCGA § 48-5-7.4 (d). If a covenant is breached, the property is no longer eligible for current use assessment, and the taxpayer must pay a penalty. OCGA § 48-5-7.4 (h), (1).

The Goolsbys own 448.5 acres in Terrell County. In order to obtain certain tax advantages, effective January 1, 2007, they applied for current use assessment and entered the property in a ten-year “conservation use assessment of agricultural property covenant agreement” under OCGA § 48-5-7.4. After entering the covenant, the Goolsbys began Goolsby Farm Supply, a commercial grain business, on a portion of the property. It maintains a website and is listed in the Yellow Pages as a grain dealer. The nature of Goolsby Farm Supply is not clear from the record before us; the bench trial at which Jason Goolsby testified about the business apparently was not recorded. In any event, no transcript of that trial was included in the appellate record.

The board notified the Goolsbys that they were in violation of their conservation use covenant, specifying that they “applied for a business license on 12/9/09 and a commercial business constitutes a breach of [their] covenant.”

The Goolsbys appealed the board’s decision to the Terrell County Board of Equalization, which upheld the decision. The Goolsbys then appealed to the superior court, which ruled that they had not violated the conservation use covenant. The board filed this appeal.

1. Timeliness of the notice of appeal.

The Goolsbys argue that we lack jurisdiction over the appeal because the board’s notice of appeal is untimely. The superior court entered its order finding no breach of the covenant on October 30, 2012. The board filed a timely notice of appeal on November 6, 2012. But on November 9, 2012, the board expressly dismissed the notice of appeal in order to file a motion for reconsideration, and filed such a motion that same day. The superior court denied the motion for reconsideration on November 21, 2012. On November 28, 2012, within the 30-day period for filing a notice of appeal from the October 30 order, the board moved for an extension of time to file its notice of appeal. The superior court granted the board’s motion for extension of time until December 29, 2012 “to file the appropriate [n]otice of [ajppeal.” The board filed a notice of appeal on December 27, 2012.

The Goolsbys argue that because the order extending the time for filing the notice of appeal did not specify to which of the orders the extension applied, it is defective. But the superior court had the authority under OCGA § 5-6-39 (a) (1) and (c) to grant one 30-day extension of the time for filing the notice of appeal, and nothing in that statute required the court to specify precisely to which order the extension applied. The board’s November 28 motion for an extension of time to file a notice of appeal was timely filed from the directly appealable October 30 order. OCGA § 5-6-39 (d). If, on the other hand, the board’s motion for extension is construed, as the Goolsbys suggest, to have been a motion for extension of time to appeal from the denial of the motion for reconsideration, the motion would have been futile and the order granting it would be a nullity. See Jim Ellis Atlanta v. Adamson, 283 Ga. App. 116 (640 SE2d 688) (2006) (order denying motion for reconsideration not directly appealable). We therefore construe the superior court’s grant of the motion for extension to render timely the December 27 notice of appeal.

We are required to “liberally construe [the Appellate Practice Act] so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case or refusal to consider any points raised therein.” OCGA § 5-6-30. With this principle in mind, we conclude that the notice of appeal was timely from the directly appealable October 30 order, given the OCGA § 5-6-39 extension.

2. The commercial grain business.

(a) The board argues that under OCGA § 48-5-7.4 (b) (1), the Goolsbys breached the conservation use covenant by operating “some other type of business,” the commercial grain business, on the property. The Goolsbys counter that they have not breached the covenant because the primary use of their property remains the good faith production of agricultural products, a qualifying purpose under the statute. See OCGA § 48-5-7.4 (a) (1). They contend that because the operation of the commercial business does not conflict with their production of agricultural products — the primary purpose — they have not breached the covenant. See Ga. Comp. R. & Regs. r. 560-11-6-.02 (e). In effect, they argue that Goolsby Farm Supply is simply an “incidental... use for some other purpose not detrimental to or in conflict with its primary purpose,” and thus is permissible. Id.

In order to determine whether the operation of Goolsby Farm Supply breached the covenant, we are required to construe the meaning of OCGA § 48-5-7.4 (b) and Ga. Comp. R. & Regs. r. 560-11-6-.02 (e).

[Cjourts should construe a statute to give sensible and intelligent effect to all of its provisions and should refrain, whenever possible, from construing the statute in a way that renders any part of it meaningless.... [A] court’s duty is to reconcile, if possible, any potential conflicts between different sections of the same statute, so as to make them consistent and harmonious— [I] n construing language in any one part of a statute, a court should consider the entire scheme of the statute and attempt to gather the legislative intent from the statute as a whole. We apply the same principles of construction to administrative rules and regulations.

Prince v. Bailey Davis, LLC, 306 Ga. App. 59, 61-62 (701 SE2d 492) (2010) (citations omitted). And “OCGA § 48-5-7.4 creates an exception to the general rule in Georgia that tangible property value is assessed at 40 percent of fair market value, and, as such, the statute must be construed in the [b]oard’s favor.” Morrison, 294 Ga. App. at 512-513 (2) (citation omitted).

Addressing this issue, the superior court wrote:

No statutory authority or case law was cited by [the board] to prove that procuring or even operating a business on the subject property would result in a breach of the covenant, particularly when the business is consistent with the primary purpose of the subject property which is “good faith” production of agricultural products.

To the extent the superior court concluded that operating a business on the property never breaches a covenant, it erred. As noted, OCGA § 48-5-7.4 (b) (1) provides: “When one-half or more of the area of a single tract of real property is used for a qualifying purpose, then such tract shall be considered as used for such qualifying purpose unless some other type of business is being operated on the unused portion.” The statute does not expressly state what happens when “some other type of business is being operated on the unused portion,” but the clear implication is that then, the “tract shall [not] be considered as used for” the qualifying purpose. Id. Yet an “incidental, occasional, intermediate or temporary use for some other purpose not detrimental to or in conflict with its primary purpose” does not prevent otherwise qualified property from being classified as bona fide conservation use property. Ga. Comp. R. & Regs. r. 560-11-6-.02 (e). Construing these provisions together, we conclude that if the taxpayer is operating “some other type of business,” a business separate and apart from the commercial production from or on the land of agricultural products, and the business is not “incidental, occasional, intermediate or temporary but is “detrimental to or in conflict with [the property’s] primary purpose,” then the land does not qualify for current use assessment under the statute. See OCGA § 48-5-7.4 (a) (1) (“ ‘bona fide conservation use property’ means property . . . the primary purpose of which is . . . commercial production, from or on the land of agricultural products . . . .”). To the extent the superior court based its judgment on a different construction, it erred.

(b) The Goolsbys argue that even if OCGA § 48-5-7.4 (b) (1) prohibits the operation of a commercial business, that prohibition applies only when a taxpayer seeks to enroll his property in a conservation use covenant in the first instance. We disagree. OCGA § 48-5-7.4 (d) requires that, in order for property to qualify for current use assessment,

. . . the owner of such property [must] agree [ ] by covenant with the appropriate taxing authority to maintain the eligible property in bona fide qualifying use for a period of ten years beginning on the first day of January of the year in which such property qualifies for such current use assessment and ending on the last day of December of the final year of the covenant period. . . .

(Emphasis supplied.) OCGA § 48-5-7.4 (g) provides that “no property shall maintain its eligibility for current use assessment under this Code section unless a valid covenant remains in effect and unless the property is continuously devoted to an applicable bona fide qualifying use during the entire period of the covenant.” Similarly, Ga. Comp. R. & Regs. r. 560-11-6-.06 (3) provides that a “breach shall be deemed to occur upon the occasion of any event which would otherwise disqualify the property from receiving the benefit of current use valuation.” These provisions make clear that the qualifying use of the property must be continued for a taxpayer to retain the benefit of current use assessment.

Because the judgment in the Goolsbys’ favor may have been based on an erroneous construction of OCGA § 48-5-7.4 (b) (1), we vacate that judgment and remand for reconsideration not inconsistent with this opinion.

Judgment vacated and case remanded.

Doyle, P. J., concurs. Boggs, J., concurs fully and specially.

BOGGS, Judge,

concurring fully and specially.

I agree with the majority that this case is properly before us, and that it must be remanded for clarification of the trial court’s order. I write separately to note that in the absence of a transcript we must presume that the factual findings in the trial court’s order are supported by the evidence.

The majority notes that one sentence of the trial court’s order appears to incorrectly state that under no set of circumstances could the case or statutory law support a finding in favor of the appellant. And because we cannot discern from the record whether this incorrect statement of the law affected the trial court’s factual findings, a remand is appropriate.

While the majority correctly notes that we apply a de novo standard of review to stipulated facts, we must defer to a trial court’s factual findings unless clearly erroneous. Lamad Ministries v. Dougherty County Bd. of Tax Assessors, 268 Ga. App. 798, 806 (3), n. 3 (602 SE2d 845) (2004). Some of the facts relied upon by the trial court were included in a stipulation. But, as the majority acknowledges, a hearing at which the appellees gave substantial testimony as to the nature of their farming operations was not reported.

There is a presumption in favor of the regularity and legality of all proceedings in the trial court, Stegeman v. Heritage Bank, 304 Ga. App. 172, 174 (1) (695 SE2d 340) (2010), and in the absence of a transcript or a statutory substitute, this court must assume that the evidence presented at the hearing supported the trial court’s decision. Siratu v. Diane Investment Group, 298 Ga. App. 127, 128-129 (679 SE2d 359) (2009). We therefore must assume evidence was presented that “Goolsby Farm Supply” was a business “directly connected” with the “primary purpose” of the stipulated land use under OCGA § 48-5-7.4 and Ga. Comp. R. & Regs. r. 560-11-6-.02: “raising livestock and raising and harvesting agricultural products, including grain and wheat.”

No evidence before us shows that the Goolsbys’ business was a retail establishment such as the classic “farm supply” store selling everything from bridles and buckets to chicken feed and western wear. The missing transcript could have included testimony that, for example, the Goolsbys’ purchase and sale of other farmers’ agricultural products was a result of the varying feed requirements of their substantial herd of cattle. If the Goolsbys entered into output or requirements contracts with their neighbors, see OCGA § 11-2-306, and purchased more feed than their cattle consumed, they would necessarily sell that surplus; similarly, if they underestimated their herd’s requirements or failed to grow sufficient feed, they would purchase the remainder. As the Goolsbys contended below and before this court, production of livestock would be impractical without the ability to buy, sell, and store animal feed on the property.

Decided November 7, 2013.

Collier & Gamble, Edward R. Collier, for appellant.

Perry & Walters, Kim M. Minix, Jonathan L. Morris, for appellees.

For these reasons, in the absence of the legal conclusion in the trial court’s order, this court would be required to affirm.

       Likewise, we must presume that the record supports the trial court’s finding that the Goolsbys’ occasional rental of their office for a banquet was “an incidental, occasional, intermediate or temporary use” within the meaning of Ga. Comp. R. & Regs. r. 560-11-6-.02 (e).


author: Miller, Judge.

text:
    A13A1119.
    SMITH v. THE STATE.
    (751 SE2d 164)
   Miller, Judge.

Chad Andrew Smith was charged by accusation with possession of methamphetamine (OCGA § 16-13-30 (a)), manufacture of marijuana (OCGA § 16-13-30 (j) (1)), and possession ofless than one ounce of marijuana (OCGA § 16-13-30 (j) (1)). Smith filed a motion to suppress the marijuana, methamphetamine, and drug-related items found in his yard and home, as well as the statements he made to police officers. The trial court denied Smith’s motion, and this Court granted his application for interlocutory appeal. Smith contends that the trial court erred in denying his motion to suppress. For the reasons set forth below, we agree.

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

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

Here, the trial court denied Smith’s motion to suppress without explanation and, therefore, there are no findings of fact. Nevertheless, viewed in favor of the trial court’s decision, the evidence showed that officers of the Lookout Mountain Drug Task Force received an anonymous tip that marijuana was growing in front of a residence located at 69 Katie Lane in LaFayette. The next day, Agent Doyle, accompanied by three other agents, drove to that address to investigate. The agents pulled their car into the driveway and parked. A house was located at the front of the property, with a double-wide trailer located behind it at the end of the driveway. The house was approximately 25 to 30 feet from the front porch of the trailer. When the agents drove into the driveway, Agent Brown noticed what he believed to be marijuana plants growing in a plastic tub pushed up against the rear wall of the house. One of the plants was ten to twelve inches tall and the others were smaller. There is no evidence that the plants were visible from the road, and the agents could not see the plants until they pulled into the driveway. The agents approached the house and knocked on the door, but then noticed that the house was being used as a storage building.

Doyle and another agent then went to the front porch of the trailer and knocked on the front door, while the other two agents waited in the car. From his position on the front porch, Doyle could also see the marijuana plants. After knocking on the door, Doyle heard a commotion inside and noticed that the blinds had been pulled back briefly. At this point, Doyle began to announce that they were law enforcement, and the two agents in the car went to the trailer’s back door to prevent escape.

All the agents then entered the unlocked back door, announcing loudly that they were law enforcement, and conducted a safety sweep in order to secure any persons there. At this point, there was concern for officer safety because of the fact that firearms and other weapons are frequently found in connection with narcotics investigations. Upon entering the trailer, the agents located Smith and his girlfriend in Smith’s bedroom. When asked why they did not answer the knock at the front door, they stated that they were asleep and did not hear the knocking. The agents noted that Smith and his girlfriend appeared to have been awake for some time and that there was a smoking cigarette in an ashtray.

Doyle said that, sometime between observing the marijuana plants and entering the trailer, the agents had made the decision to seek a search warrant and had contacted their administrative assistant to draft the warrant. After entering the trailer, the agents took Smith and his girlfriend out onto the front porch, but then moved them back inside so Smith could sit down. Based on the marijuana plants spotted outside, Doyle advised Smith and his girlfriend of their Miranda rights. Doyle then asked Smith about the marijuana plants. Smith initially denied having any knowledge, but later said that the plants were his and were for personal use only. Smith went on to say he had planted them a couple of months ago and knew there was a possibility he could get in trouble, but he was not planning on getting caught.

Approximately 45 minutes to an hour after the agents had applied for a warrant, they were advised that one had been granted, although they did not see it and did not bring it to the location prior to the search. During the ensuing search of the trailer, agents found a green case containing a glass pipe with white residue that tested positive for methamphetamine; two bud grinders containing marijuana residue; a set of finger scales; a glass smoking pipe containing marijuana residue; a sandwich bag containing white residue; and a water bong containing marijuana residue.

1. Smith argues that the trial court erred in denying his motion to suppress because the State did not carry its burden to prove the validity of the warrant in that the affidavit supporting it was not tendered into evidence. We agree.

“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated[.]” (Citations omitted; emphasis supplied.) Espinoza v. State, 265 Ga. 171, 172 (2) (454 SE2d 765) (1995). Officers may gain “access justified by the Fourth Amendment by obtaining a warrant, obtaining consent, or by the existence of exigent circumstances which require the officer [s] to act immediately without warrant or consent.” State v. David, 269 Ga. 533, 535-536 (2) (501 SE2d 494) (1998). Where officers obtain a search warrant, it must be based on a showing of “probable cause supported by oath or affirmation particularly describing the place or places to be searched and the persons or things to be seized.” (Citations omitted.) Espinoza, supra, 265 Ga. at 172 (2).

Pursuant to OCGA § 17-5-30 (a), an accused may seek to suppress evidence based upon the grounds that the search and seizure without a warrant was illegal; the warrant was insufficient because there was not probable cause; or the warrant was illegally executed. Further, “the burden of proving that the search and seizure were lawful shall be on the [S]tate.” OCGA § 17-5-30 (b). Smith challenged the search and seizure as illegal and not based on probable cause.

[Wjhen a motion to suppress is made on one of the three statutory grounds, challenging the validity of a search and seizure with a warrant, the burden of showing that the search and seizure were lawful shall be on the state. This burden upon the state is satisfied by production of the warrant and its supporting affidavit, and by showing either by those documents or by other evidence that the warrant is not subject to the statutory challenge alleged (i.e., the warrant is sufficient on its face, there was probable cause for its issuance, or the warrant was legally executed).

(Emphasis supplied.) State v. Slaughter, 252 Ga. 435, 439 (315 SE2d 865) (1984).

Once the State meets its initial burden of producing the affidavit and other evidence showing the validity of the warrant, the burden shifts to the defendant to produce evidence and support his challenge to the lawfulness of the warrant. Watts v. State, 274 Ga. 373, 375-376 (2) (552 SE2d 823) (2001).

The factual situation in this case is similar to that in Gates v. State, 229 Ga. App. 766 (495 SE2d 113) (1997). There, officers obtained permission from Gates’s next door neighbor to observe Gates’s back yard from the neighbor’s yard. From that vantage point, the officers observed nine marijuana plants growing in Gates’s back yard. Officers obtained a warrant for Gates’s house and yard and seized, in addition to the marijuana plants, cocaine and drug paraphernalia from his home. Id. at 766-767. There, as here, the State failed to produce the affidavit presented to the magistrate in support of the warrant. Citing Slaughter, supra, this Court reiterated that “the State is required to introduce the affidavit supporting the issuance of the search warrant in response to a motion to suppress challenging the sufficiency of the affidavit and validity of the warrant.” Gates, supra, 229 Ga. App. at 767.

The State in Gates argued that the marijuana plants were in plain view and that, under the “independent source” doctrine, the fact that the subsequent seizure under a warrant may have been defective should not require suppression of the evidence. Id. While acknowledging that the officers observed the marijuana from a place they were legally entitled to be, this Court noted that

while the characterization of an observation as a non-search plain view situation settles the lawfulness of the observation itself, it does not determine whether a seizure of the observed object would likewise be lawful. Not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself.

(Citations and punctuation omitted; emphasis supplied.) Id. at 768 (a). This Court concluded that a warrant was necessary to seize the marijuana and, because the affidavit had not been produced by the State, all of the evidence had to be suppressed. Id. at 768-769 (b).

Although the State argues valiantly that Slaughter does not require producing the affidavit, that Gates was incorrectly decided, and that the State can fulfill its burden by producing testimony at the hearing on the motion to suppress, this argument is unavailing. The Supreme Court of Georgia and this Court have repeatedly reaffirmed the need for the State to produce at least the warrant and supporting affidavit in order to meet its initial burden. See Watts, supra, 274 Ga. at 375-376 (2); Davis v. State, 266 Ga. 212, 213 (465 SE2d 438) (1996); Sosebee v. State, 303 Ga. App. 499, 501-502 (1) (693 SE2d 838) (2010). Therefore, the State having failed to produce the affidavit, the trial court erred in denying Smith’s motion to suppress.

2. As stated above, it is unclear whether the marijuana plants were seized prior to or after the warrant was issued. Therefore, we consider whether there is any basis upon which the plants could have been seized without a warrant.

Pretermitting the issue of whether the driveway is included in the curtilage of the house and trailer, it is apparent that the plants could not have been seized without walking across the yard of the house and trailer, which was within the curtilage and protected by the Fourth Amendment and Ga. Const. Art. I, Sec. I, Par. XIII. Espinoza, supra, 265 Ga. at 172-173 (2). “The Fourth Amendment protects this area, known as the curtilage, as an exception to the open fields doctrine. [The Supreme Court of Georgia] has defined curtilage as ‘the yards and grounds of a particular address, its gardens, barns and buildings.’ ” (Citations and punctuation omitted.) Id. at 172-173 (2).

Since the officers were within the curtilage, we consider whether the agents, having observed the plants in plain view and identified them as marijuana, had a lawful right of access to them. See Galindo-Eriza v. State, 306 Ga. App. 19, 21 (1) (701 SE2d 516) (2010). “An officer gains lawful access to an item in plain view by obtaining a search warrant, obtaining consent to search, or the existence of exigent circumstances.” (Citation and punctuation omitted.) Id. at 21 (1). “[T]he presence of contraband without more does not give rise to exigent circumstances.” (Punctuation and footnote omitted.) State v. Gray, 285 Ga. App. 124, 128 (2) (645 SE2d 598) (2007).

Decided November 7, 2013.

Benjamin T. Bradford, for appellant.

Herbert E. Franklin, Jr., District Attorney, Matthew C. Brown, Assistant District Attorney, for appellee.

Here, there is no evidence that, at the time the marijuana was seen and subsequently seized, the agents knew who, if anyone, was in the house or trailer, or even who owned the property.

Even with probable cause, absent exigent circumstances or proper consent, warrantless searches and seizures within a home [or curtilage] by officers in pursuit of their traditional law enforcement duties are presumptively unreasonable____ Thus, even if officers have probable cause to investigate a crime, without a warrant, exigent circumstances, or proper consent, they may not enter a home or its curtilage.

(Citations and punctuation omitted.) Corey v. State, 320 Ga. App. 350, 353 (1) (739 SE2d 790) (2013).

Since the affidavit was not produced, and there was no evidence of consent or exigent circumstances, the seizure of the marijuana plants was illegal.

Judgment reversed.

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

       We note that, in this case, the evidence is unclear whether the marijuana plants were seized before or after the warrant was issued.

       The Fourth Amendment does not cover police observations from places where visitors are expected, such as walkways, driveways, and porches. See Espinoza, supra, 265 Ga. at 173 (2).


author: MCFADDEN, Judge.

text:
    A13A1226.
    CLUB LIBRA, INC. v. R. L. KING PROPERTIES, LLC.
    (751 SE2d 418)
   MCFADDEN, Judge.

Club Libra, Inc. appeals from a grant of summary judgment awarding insurance proceeds to R. L. King Properties, LLC. Because there exists no genuine issue of material fact, we affirm.

1. Insurance policy.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Insurance in Georgia is a matter of contract, and we have long held that contract disputes are well suited for adjudication by summary judgment because construction of a contract is ordinarily a matter of law for the court.

Maxum Indent. Co. v. Jimenez, 318 Ga. App. 669 (734 SE2d 499) (2012) (citations and punctuation omitted).

The record shows that Essex Insurance Company issued an insurance policy to Club Libra to cover premises leased from R. L. King Properties. After the property was damaged by fire, both R. L. King and Club Libra requested payment of insurance proceeds. Essex offered to issue a joint check made out to both entities for the full amount of insurance coverage in question. Both Club Libra and R. L. King rejected the proposal, after which Essex filed an interpleader action against Club Libra and R. L. King, requesting that the distribution of the insurance proceeds be resolved. Pursuant to a court order, Essex deposited the insurance funds at issue, $91,869.54, into the registry of the court. R. L. King moved for summary judgment. The trial court granted the motion, finding that R. L. King is the owner of the building, is named as the sole mortgage holder under the insurance policy, and that under the terms of the policy it is entitled to the proceeds paid into the court registry. Club Libra appeals.

As noted above, insurance is a matter of contract, “and the parties to the contract of insurance are bound by its plain and unambiguous terms.” Michna v. Blue Cross and Blue Shield of Ga., 288 Ga. App. 112, 113 (653 SE2d 377) (2007) (citations and punctuation omitted). Thus, in construing an insurance policy, a court must first “decide whether the language is clear and unambiguous. If it is, the court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning.” Id. (citations omitted).

In this case, the commercial property declarations page of the policy plainly identifies R. L. King as the sole mortgage holder of the property. The policy’s building and personal property coverage form includes a mortgage holder provision, which states that the mortgage holder has the right to receive “loss payment” and that Essex “will pay for covered loss of or damage to buildings or structures to each mortgage holder shown in the Declarations in their order of precedence, as interests may appear.” This language clearly and unambiguously provides that R. L. King, as the sole mortgage holder, is entitled to payment for the damage to its property. Accordingly, the trial court did not err in simply enforcing the insurance contract according to its clear terms by awarding the insurance proceeds to R. L. King.

Club Libra acknowledges in its brief that the insurance policy provides that Essex should make payment for covered loss or damage to the mortgage holder. Despite that clear language of the insurance policy, Club Libra contends that R. L. King is not entitled to the insurance proceeds because it violated a provision in the lease agreement that required it to repair the premises within 120 days of the fire. However, Club Libra has not pointed to any provision in the policy incorporating the terms of the lease agreement. And even assuming, without deciding, that the lease agreement is somehow relevant to interpreting the insurance policy in this insurance company interpleader case, the lease provision cited by Club Libra did not require repairs within 120 days in order to authorize recovery of insurance proceeds by R. L. King.

The first paragraph of that provision states that if the leased premises are damaged to the extent that they are unfit for use by the lessee and cannot be repaired within 120 days, then either party can terminate the lease; but if the premises can be restored within 120 days, the lessor shall do so, and the lessee shall be required to pay only a just and proportionate part of the rentals due until the work is completed. That paragraph makes no mention of insurance proceeds, and certainly does not make payment of insurance proceeds contingent on the lessor taking action within that 120-day period. Rather, it simply ties that time period to whether or not the parties may terminate the lease and to whether only a portion of the lessee’s rentals shall be paid if repairs are being made during that time frame.

The next paragraph makes no reference to any time period, and certainly does not mention the 120-day time period. Rather, it simply states: “If Lessor shall rebuild or restore the leased premises, then and in such event, the full amount of insurance payable under policies of fire insurance shall be paid to the Lessor for use in the rebuilding and restoration of the leased premises.” Thus, not only does this paragraph not require repairs to be done within any particular time period, but it also is consistent with the insurance policy in providing that insurance proceeds are payable to R. L. King for use in repairing its damaged property.

In effect, what Club Libra asks us to do is make a new contract of insurance requiring that R. L. King repair its own property within a particular time frame in order to recover insurance proceeds. However, “[i]t is the function of the court to construe the contract as written and not to make a new contract for the parties.” Michna, supra (citations omitted). So construed, the insurance policy as written clearly authorized the trial court’s finding that R. L. King is entitled to the insurance proceeds.

2. Personal property.

Club Libra further argues that a speaker system destroyed in the fire was its personal property and thus it is entitled to the portion of the insurance proceeds allotted for that personal property. The crux of Club Libra’s argument is that the system was not a fixture attached to the property and thus did not become part of the real property. Conversely, R. L. King asserts that the system was its property and was a permanent fixture on the premises as evidenced by the insurance estimate. Club Libra has not pointed to any evidence in the record supporting its claim that the system was not a fixture; instead, the only pertinent record reference that it provides is to the insurance company’s statement that its itemized estimate of coverage included “a speaker system that was affixed to the building and therefore deemed a fixture by adjuster.” See OCGA § 44-1-2 (a) (2); Hargrove v. Jenkins, 192 Ga. App. 83, 84 (383 SE2d 636) (1989) (realty includes things permanently attached to land or buildings, and such fixtures embrace annexed chattels irrespective of whether they are removable). To avoid summary judgment, Club Libra “must point to specific evidence giving rise to a triable issue.” Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010) (citation and punctuation omitted). Because Club Libra has failed to do so, we find that it has not carried its burden of showing error.

Decided November 7, 2013.

Daniel B. Kane, for appellant.

Rena L. Holmes, for appellee.

Judgment affirmed.

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


text:
    A13A1271.
    LEOPOLD v. THE STATE.
    (751 SE2d 184)
   Boggs, Judge.

Neil Leopold appeals from his convictions for possession of marijuana and possession of marijuana with intent to distribute. He contends that he received ineffective assistance of counsel and that he was denied his constitutional right to a speedy trial. For the reasons explained below, we find no merit in his ineffective assistance of counsel claim, but we remand this case to the trial court for entry of a more detailed order weighing the factors outlined in Barker v. Wingo, 407 U. S. 514 (92 SCt 2182, 33 LE2d 101) (1972).

1. Leopold asserts that he received ineffective assistance of counsel because his trial attorney: (a) failed to review the State’s file on Junior Blackford, who was arrested for the same incident giving rise to charges against Leopold; (b) failed to obtain, and impeach Blackford with, certified copies of his prior felony convictions in Georgia and New York; (c) abandoned a previously filed defense motion requesting a National Crime Information Center (“NCIC”) report on all of the State’s witnesses; (d) failed to investigate and cross-examine Blackford about his risk of deportation; (e) conducted no investigation as to whether Blackford could receive packages at the hotel where he lived at the time of the incident; and (f) failed to investigate and cross-examine Blackford about his flight to New York for more than two years.

To establish ineffectiveness, [Leopold] must show (1) that counsel’s performance was deficient, and (2) that this deficiency so prejudiced his defense that a reasonable possibility exists that the trial’s result would have been different but for that deficiency. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.

(Citations, punctuation and footnotes omitted.) Lovelace v. State, 241 Ga. App. 774, 775 (3) (527 SE2d 878) (2000).

In order to evaluate Leopold’s ineffectiveness claims, we must examine the State’s evidence, defense counsel’s cross-examination of Blackford, and the evidence presented in the motion for new trial hearing. The record shows that police officers learned that a package traveling to Georgia from Arizona might contain marijuana. After confirming the presence of marijuana through a canine free air search and a subsequent search warrant, the police organized a controlled delivery of the package which was videotaped.

The package was addressed to Gary Williams at a specific Covington, Georgia address — the home of Leopold’s cousin. The video first shows Leopold sitting in the driver’s seat of a white sedan parked in the driveway of the delivery address. After sitting in the car with the driver’s door open for approximately 24 seconds, Leopold got out and paced around the driveway while periodically looking toward the street. He then walked toward the end of the driveway to meet an investigator with UPS, dressed as a delivery driver. The video shows a light rain during the delivery of the package.

The UPS investigator testified that he told Leopold that he had a package for Gary Williams and asked if he lived there and whether it was the correct address. Leopold stated that it “was the correct place and ... that [Gary Williams] was just down the street and was going to be right back.” The video shows Leopold pointing down the street while talking with the investigator. The investigator decided to leave the package beside the front door, and the video shows Leopold walking with him to the front door and pointing out a place to put the package.

As the investigator walked away, Leopold stayed near the package without touching it while the investigator walked back to his UPS truck and drove away. After the UPS truck drove away, Leopold picked up the package, but then placed it behind a red sedan backed into the driveway that was parked beside the white sedan. He then walked back to the white sedan and got into the driver’s seat again.

While the UPS truck drove past again after having turned around in a cul-de-sac, a black sedan pulled up and parked on the street near the white sedan. Leopold walked over to the black sedan and spoke to the front passenger. Two men, Blackford and Raymond Cornelius, then got out of the black sedan. While the driver, Cornelius, walked around the driveway talking on a cell phone, Leopold picked up the package and placed it in the back seat on the driver’s side of the white sedan. After talking with Blackford while standing behind the white sedan, Leopold opened the trunk and placed the package in it. Cornelius then walked over, and the three men had a discussion while arranging the contents of the trunk. After the trunk was closed and Leopold got into the driver’s seat of the white sedan with keys in his hand, police officers moved in and arrested him. Blackford, who had been outside the car looking around, fled but was captured. The package contained four pounds of marijuana.

Leopold gave a statement to police in which he claimed that he did not know what was in the package. He explained that Blackford offered him “a couple of dollars” to let him have a package delivered to his address. Leopold explained that he “felt funny” about it and “questioned Blackford about it... was the police going to come and get us.” Leopold stated that Blackford told him not to worry. Leopold also told the police that he was hesitant to physically touch the package because he felt something was wrong. Leopold did not testify during his trial.

Cornelius told the police following his arrest that the white sedan belonged to Leopold. At trial, he testified that on the day of the delivery, Leopold called to ask him for a ride from the Covington address to his girlfriend’s house in Decatur. Cornelius testified that he did not know whether Leopold had a car that day. When he arrived, a person he knew as “Blacks” was also there, and he offered to buy Cornelius some beer for his birthday. Cornelius and Blacks left together, and Leopold stayed behind because the back seat of Cornelius’ car was wet.

Cornelius testified that when they returned, Blacks asked Leopold if his mail had arrived. When Cornelius asked “what mail,” Blacks told him that he was “supposed to get some personal items” that he needed to get a job because he “was living from hotel to hotel.” According to Cornelius, Blacks instructed Leopold to put it in the back seat, but “then he said no, I’m going to put it in the trunk, so he put it in the trunk.” Cornelius explained that when the three of them were seen in the video standing behind the trunk, they were discussing how to fit the package in the trunk because Blacks had large speakers stored inside it. Although he was initially arrested, Cornelius was not charged with an offense for his conduct.

Blackford testified for the State pursuant to an order granting him use and derivative use immunity. He testified that he was from Jamaica, was not a United States citizen, had been in the United States since 1979 living in New York, and was visiting Georgia and staying in a hotel at the time of his arrest. He testified that he met Leopold while they worked at a restaurant together and that on the day of the incident, Leopold drove him to the country in a white car. He denied asking Leopold to use his address for delivery of a package and claimed that he could receive mail at the hotel. He testified that he had no knowledge of the package until he saw Leopold with it at the house after returning from the store to buy beer.

During cross-examination, defense counsel asked 25 questions and established that Blackford had received immunity in exchange for his testimony, that the white car did not belong to Leopold or Blackford, and that Blackford ran away from the police officers when he saw them. During redirect, Blackford testified that he ran away because he “was drinking and smoking and ... [knew he] had a little thing with the immigration . . . just got nervous and . . . ran.” He admitted that he was concerned about his immigration status if he was arrested.

The State presented evidence of a 2005 similar transaction in which Leopold pled guilty in Pennsylvania to possession with the intent to deliver a controlled substance (cocaine). At the time of that arrest, he also possessed a small quantity of marijuana and a large amount of cash.

One witness testified on behalf of the defense: Leopold’s former girlfriend and the mother of his two children. She testified that a couple of days before Leopold’s arrest, she heard Blackford ask Leopold if he could use his address for the delivery of some documents and personal items because he could not receive mail at his hotel. She testified during cross-examination by the State that Leopold primarily stayed in Covington at the time of his arrest. She admitted that she still considered him to be a good friend whom she would help if needed.

During closing argument, defense counsel emphasized that Blackford ran away from the police and that he had a motive to lie based upon his immigration issues even though he had been offered immunity. She also pointed out that Blackford had a greater motive to lie than Leopold’s ex-girlfriend. Additionally, in both opening and closing arguments, the State acknowledged that Blackford was a co-defendant charged with the same crimes as Leopold. The State also claimed that Blackford was lying when he testified he did not know anything about the marijuana in the package because he ran away when the police arrived.

During the motion for new trial hearing, defense counsel testified that she had been practicing law for less than a year at the time of this trial and Leopold’s trial was her fifth. She explained that a chief assistant public defender sat with her at trial and helped her develop Leopold’s defense. She testified that she was the seventh attorney in the public defender’s office to handle Leopold’s case, that it was assigned to her in July or August 2009, and that the trial began on September 28, 2009.

Trial counsel testified that she worked many hours on Leopold’s case and that she reviewed the State’s file on Leopold, including the statement he gave to police. She made a strategic decision not to locate Blackford because he had been absent for two years and his absence worked in her client’s favor. Counsel did not recall whether she was aware that Blackford was arrested in New York and transferred to Newton County custody five months before Leopold’s trial. She did not know his anticipated testimony before trial because he was represented by counsel and charges were still pending against him. Counsel knew from conversations with Blackford’s attorney that his testimony would be generally harmful to Leopold. While she had no specific memory, she was certain she would have reviewed a statement Blackford gave to police four days before trial.

Trial counsel reviewed Blackford’s criminal history in the Georgia Crime Information Center because this information was included in the State’s file on Blackford. She decided not to attempt to impeach Blackford with a felony burglary conviction because it was very old and she did not think the trial court would have admitted it based on her experience in the circuit with regard to the admission of convictions that were more than ten years old.

Counsel testified that at the time she reviewed the State’s file, the portion available to her did not include an NCIC report that would have contained additional information about Blackford’s criminal history in other states. She testified that the public defender’s office generally does not have access to the NCIC and that it is difficult and expensive for the public defender’s office to obtain copies of out-of-state convictions. The decision to seek such records would have been made by her superiors based upon whether it would have been a good use of resources.

Leopold’s appellate counsel introduced into evidence information about Blackford’s out-of-state criminal history that he had obtained from the State’s file following Leopold’s trial. This history includes: 1982 felony attempted burglary and burglary conviction; 1982 guilty plea to felony second degree robbery; 1982 guilty plea to misdemeanor possession of stolen property in the third degree; 1991 guilty plea to misdemeanor resisting arrest; May 1999 guilty plea to felony possession of a loaded firearm in the third degree; 2003 guilty plea to misdemeanor possession of marijuana in a public place; 2006 guilty plea to misdemeanor aggravated unlicensed operation of a motor vehicle; 2009 guilty plea to misdemeanor unauthorized use of a motor vehicle without the owner’s consent.

Trial counsel did not contact anyone at the Immigration and Naturalization Service (“INS”) about Blackford’s immigration status or take any steps to determine whether he was at risk of being deported. She did not attempt to verify Blackford’s residence through the postal service. She could not recall whether she learned before or after trial that Blackford was not a United States citizen.

Leopold’s appellate counsel did not introduce any evidence in the motion for new trial hearing with regard to Blackford’s risk of deportation or his ability to receive mail at the hotel where he was staying at the time of his arrest.

(a) Although Leopold asserts in his brief that his trial counsel was ineffective because she failed to review the State’s file on Blackford, she testified during the motion for new trial hearing that she did review it, and the trial court was entitled to believe her. See Gould v. State, 315 Ga. App. 733, 734 (1) (726 SE2d 432) (2012). Leopold has therefore failed to meet his burden of proving this claim of ineffective assistance. Id.

(b) We find no merit in Leopold’s related ineffective assistance claims based upon trial counsel’s failure to investigate and impeach Blackford with his prior criminal convictions or to obtain an NCIC report. The record shows that all of the felony convictions were more than ten years old, that the trial court would not have abused its discretion by concluding that the probative value of these convictions did not outweigh their prejudicial effect, and that none of the misdemeanor convictions involved fraud or deceit. See former OCGA § 24-9-84.1 (a) (2), (3) and (b). “Because [Leopold] has failed to establish that the convictions would have been admitted, he has not shown that his [lawyer was] ineffective” on this ground. Williams v. State, 292 Ga. 844, 852 (3) (e) (742 SE2d 445) (2013) (rejecting ineffective assistance claim based on failure to impeach with prior convictions because trial court would not have abused discretion in denying use of convictions). See also Boatright v. State, 308 Ga. App. 266, 271 (1) (c) (707 SE2d 158) (2011).

(c) Leopold asserts that his trial counsel should have investigated and cross-examined Blackford about his risk of deportation and his ability to receive packages at his hotel. The record, however, shows that Blackford admitted during direct examination by the State that he initially ran away from the police because he was concerned about his immigration status if he were arrested and trial counsel asserted during closing argument that he had a motive to lie based upon his “immigration issues.” Additionally, in the motion for new trial hearing, Leopold failed to present the trial court with any additional evidence about Blackford’s risk of deportation or his ability to receive packages at his hotel that trial counsel should have discovered and used during her cross-examination. We therefore conclude that he has failed to meet his burden of proving that counsel rendered ineffective assistance with regard to this claim. See Boykins-White v. State, 305 Ga. App. 827, 830 (2) (b) (701 SE2d 221) (2010) (ineffective assistance claim failed when defendant did not show reasonable probability that outcome would have been different if counsel had conducted additional investigation).

(d) In his remaining ineffective assistance claim, Leopold asserts that his trial counsel should have investigated Blackford’s fugitive status and cross-examined him about his flight from Georgia for over two years to establish an inference of guilt on his part. See Miller v. State, 160 Ga. App. 832, 833 (3) (287 SE2d 679) (1982) (failure to appear for trial admissible as evidence of flight).

Trial counsel testified in the motion for new trial hearing that she made a strategic decision not to locate Blackford because she believed his absence worked in her client’s favor and reciprocal discovery rules would have required her to inform the State of his whereabouts if she located him. She “did not know if he was under bond conditions or if he was out on bond and then left the jurisdiction. ... So the first attorney that had it when Mr. Blackford left the jurisdiction I didn’t have any contact with. So the information I had was based on what I had in the file.” She acknowledged that she knew he had absconded, but she did not “know the circumstances surrounding his leaving the jurisdiction.” Finally, counsel testified that she did not cross-examine him about his absence from Georgia because she had not investigated and “there was not really much I could speak to regarding his leaving the jurisdiction.” The record before us shows that Blackford was “in bench warrant status” following his arraignment on February 1, 2007 through April 2009.

“The scope of cross-examination is grounded in trial tactics and strategy, and will rarely constitute ineffective assistance of counsel.” (Citation and footnote omitted.) Kelley v. State, 295 Ga. App. 663, 668 (2) (d) (673 SE2d 63) (2009). And “[a] claim of ineffective assistance of counsel is judged by whether counsel rendered reasonably effective assistance, not by a standard of errorless counsel or by hindsight.” Hooks v. State, 280 Ga. 164, 165 (3) (626 SE2d 114) (2006). In this case, Blackford’s testimony was impeached with evidence that he had received immunity from the State, that, he had charges pending against him, that he had “immigration issues,” and that he fled when the police attempted to arrest him. Trial counsel emphasized in her closing argument that he had a motive to lie, and the State argued in its closing argument that Blackford was lying about his lack of knowledge of the marijuana.

The Supreme Court has held that “[bjecause, a fortiori, the presentation of some impeaching evidence, but not all of the impeaching evidence a counselor possesses, is stronger than failing to present any impeaching evidence at all, we find that trial counsel’s performance in this regard was not deficient.” Simpson v. State, 289 Ga. 685, 691 (8) (715 SE2d 142) (2011). We likewise conclude that counsel’s performance was within the wide range of reasonable professional conduct and that even if trial counsel had impeached Blackford with additional evidence of flight, there is no reasonable probability that the outcome of the trial would have been different. See Boothe v. State, 293 Ga. 285, 295 (4) (745 SE2d 594) (2013) (finding no prejudice resulted from counsel’s failure to further impeach State’s witness with prior conviction). We therefore affirm the trial court’s denial of Leopold’s ineffective assistance claim.

2. In his remaining enumeration of error, Leopold asserts the trial court erred by denying his constitutional right to a speedy trial. In Higgenbottom v. State, 288 Ga. 429 (704 SE2d 786) (2011), the Supreme Court of Georgia noted that appellate courts

review the denial of a defendant’s constitutional speedy trial claim for an abuse of discretion. It is imperative, therefore, that in cases implicating a defendant’s constitutional right to speedy trial, the trial court enter findings of fact and conclusions of law consistent with Barker. Absent such findings, there is no exercise of discretion for [an appellate court] to review.

Decided November 7, 2013.

James C. Bonner, Jr., Tyler R. Conklin, for appellant.

Layla H. Zon, District Attorney, Elizabeth K. Grofic, Assistant District Attorney, for appellee.

Id. at 430-431. Following its decision in Higgenbottom, the Supreme Court reversed this court for “failing to remand the case to the trial court for it to exercise its discretion using adequately supported factual findings and the correct legal analysis.” State v. Pickett, 288 Ga. 674, 679 (2) (d) (706 SE2d 561) (2011).

In this case, the trial court’s order denying Leopold’s speedy trial claim makes no factual findings, summarily addresses only two Barker factors, and states in its entirety:

The Court also finds that in balancing the prongs and factors set out in Barker v. Wingo, [supra], the Court finds that Defendant has failed to meet his burden in showing that Defendant’s constitutional right to a speedy trial has . . . been violated based on Defendant’s failure to timely assert his right and failure to show actual prejudice for his defense.

Because of this cursory analysis of the Barker criteria, we must vacate the trial court’s order and remand this case to the trial court for entry of the order required by the Supreme Court in Higgenbottom, supra. See Jones v. State, 322 Ga. App. 310, 312 (744 SE2d 830) (2013).

Judgment affirmed in part and vacated in part, and case remanded with direction.

Doyle, P. J., and McFadden, J., concur.

       A police officer testified that “a couple of dollars” in “street slang” actually means $200 and that he confirmed with Leopold that he meant $200.

       The order was prepared by the State.