text:
    A11A0812.
    JONES et al. v. BILL GARLEN REAL ESTATE et al.
    (715 SE2d 777)
   Ellington, Chief Judge.

In December 2008, LaMont Harmon entered into a contract to purchase a home in Jesup from Rick Hayes, who had listed the property with Bill Garlen Real Estate. After the sale failed to close, Harmon and his fiancée, Sandra Jones (collectively, “the appellants”), pro se, brought this action against Bill Garlen Real Estate, Bill Garlen individually, and Garlen’s agent, Ann Grantham (collectively, “the appellees”) and against Hayes, in the Superior Court of Wayne County. The appellees moved to dismiss the complaint. After a hearing, the trial court determined that the complaint failed to state a claim against the appellees upon which relief could be granted and, therefore, granted their motions to dismiss. “We review de novo the trial court’s grant of a motion to dismiss. A motion to dismiss may be granted only where a plaintiff would not be entitled to relief under any set of facts that could be proven in support of the plaintiffs claim.” (Citations and punctuation omitted.) Johnson v. Bd. of Commrs., Bibb County, 302 Ga. App. 266, 267 (690 SE2d 912) (2010). For the reasons explained below, we affirm.

In their complaint, the appellants alleged the following. On December 27, 2008, Harmon and Hayes executed a Purchase and Sale Agreement, which was contingent on the property being appraised for at least the purchase price of $195,000. The appraised value did not satisfy that contingency. The appellants then terminated their agreement with the appellees under which the appellees acted in a dual capacity as their (buyer’s) agent as well as Hayes’ (seller’s) agent.

On January 29, 2009, Harmon, through the appellants’ new agent, Angel Spry, and Hayes entered into a new Purchase and Sale Agreement. The second Agreement was contingent on closing on or before February 6, 2009. The sale failed to close by that date.

On February 9, 2009, the appellees prepared a third Purchase and Sale Agreement, showing a purchase price of $185,000 and requiring closing by February 17, 2009. Neither the appellants nor Hayes executed the third Agreement, however, and the appellees negotiated the sale of the property to another buyer.

On February 12, 2009, the appellants successfully offered to buy a different, less attractive property at less favorable terms and allegedly suffered other damages.

The appellants alleged that the appellees breached the second Agreement, which the appellants attached and incorporated into their complaint, by refusing to provide required documentation to the loan processor and by refusing to extend the closing date after the sale failed to close by February 6, 2009. The appellants’ complaint, taken as true for purposes of the appellees’ motions, however, establishes that Grantham executed the second Agreement solely as the seller’s agent, while Harmon was represented by Spry as the buyer’s agent. As the trial court concluded, the express terms of the second Agreement fail to show that the appellees undertook any contractual duties in favor of the appellants.

On appeal, the appellants argue that the appellees’ actions breached their duties under the Brokerage Relationships in Real Estate Transactions Act, OCGA § 10-6A-1 et seq. The General Assembly enacted the Act “to govern the relationships between sellers, landlords, buyers, tenants, and real estate brokers and their affiliated licensees” where such relationships “are not governed by specific written agreements between and among the parties.” OCGA § 10-6A-2 (a). “In place of general fiduciary duties, [the Act] enumerates specific duties which real estate brokers must exercise with reasonable care. These duties vary, depending upon whether a ‘customer’ or a ‘client’ relationship exists.” (Footnotes omitted.) Killearn Partners v. Southeast Properties, 279 Ga. 144, 146 (1) (611 SE2d 26) (2005). Further, a broker who performs brokerage services for a client or customer

shall owe the client or customer only the duties and obligations set forth in [the Act], unless the parties expressly agree otherwise in a writing signed by the parties. A broker shall not be deemed to have a fiduciary relationship with any party or fiduciary obligations to any party but shall only be responsible for exercising reasonable care in the discharge of its specified duties as provided in this chapter and, in the case of a client, as specified in the brokerage engagement.

OCGA § 10-6A-4 (a).

The Act defines a “[c]lient” as “a person who is being represented by a real estate broker in an agency capacity pursuant to a brokerage engagement[,]” which must be in writing. OCGA § 10-6A-3 (6). A “[c]ustomer,” on the other hand, is “a person who is not being represented by a real estate broker in an agency capacity pursuant to a brokerage engagement but for whom a broker may perform ministerial acts in a real estate transaction pursuant to either a verbal or written agreement.” OCGA § 10-6A-3 (8). “Relationships between a broker and a customer normally do not involve the exercise of professional judgment or skill, and may be established either orally or in writing.” (Footnote omitted.) Killearn Partners v. Southeast Properties, 279 Ga. at 146 (1).

The appellants’ complaint establishes that any broker-client relationship between the appellees and Harmon that may have been created when Grantham executed the first Purchase and Sale Agreement as both the buyer’s agent and the seller’s agent, ended when that Agreement failed due to the low appraisal. Thereafter, Harmon engaged Spry as buyer’s agent, and the relationship between the appellees and Harmon was that of broker-customer. In the absence of a written agreement between them, the appellees’ duties were those set out in OCGA § 10-6A-5 (duties owed by a broker engaged by a seller). Although a broker who is engaged only by a seller owes a buyer (who is a “customer” rather than a “client”) certain duties in terms of disclosure of information, the appellants’ complaint does not aver that the appellees breached any of those duties. Accordingly, the trial court did not err in granting the appellees’ motions to dismiss. Jenkins v. Ga. Dept. of Corrections, 279 Ga. App. 160, 161 (630 SE2d 654) (2006); Zager v. Brown, 242 Ga. App. 427, 430 (1) (530 SE2d 50) (2000).

Decided August 9, 2011.

Sandra Jones, pro se.

LaMont Harmon, pro se.

David M. Conner, for appellees.

Judgment affirmed.

Miller, E J., and Doyle, J., concur.

       We note that the first Agreement was not contingent on closing by any specified closing date.

       See also OCGA § 10-6A-3 (5) (defining a “[b]rokerage relationship” as “the agency and nonagency relationships which may be formed between the broker and the broker’s clients and customers, as described in [the Act]”).

       OCGA § 10-6A-3 (4) (defining “[b]rokerage engagement”).

       See OCGA §§ 10-6A-3 (10) (defining a “[d]ual agent” as “a broker who simultaneously has a client relationship with both seller and buyer or both landlord and tenant in the same real estate transaction”); 10-6A-12 (dual agency).

       OCGA § 10-6A-5 (b) provides:
      A broker engaged by a seller shall timely disclose the following to all parties with whom the broker is working:
      (1) All adverse material facts pertaining to the physical condition of the property and improvements located on such property including but not limited to material defects in the property, environmental contamination, and facts required by statute or regulation to be disclosed which are actually known by the broker which could not be discovered by a reasonably diligent inspection of the property by the buyer; and
      (2) All material facts pertaining to existing adverse physical conditions in the immediate neighborhood within one mile of the property which are actually known to the broker and which could not be discovered by the buyer upon a diligent inspection of the neighborhood or through the review of reasonably available governmental regulations, documents, records, maps, and statistics. Examples of reasonably available governmental regulations, documents, records, maps, and statistics shall include without limitation: land use maps and plans; zoning ordinances; recorded plats and surveys; transportation maps and plans; maps of flood plains; tax maps; school district boundary maps; and maps showing the boundary lines of governmental jurisdictions. Nothing in this subsection shall be deemed to create any duty on the part of a broker to discover or seek to discover either adverse material facts pertaining to the physical condition of the property or existing adverse conditions in the immediate neighborhood. Brokers shall not knowingly give prospective buyers false information; provided, however, that a broker shall not be liable to a buyer for providing false information to the buyer if the broker did not have actual knowledge that the information was false and discloses to the buyer the source of the information. Nothing in this subsection shall limit any obligation of a seller under any applicable law to disclose to prospective buyers all adverse material facts actually known by the seller pertaining to the physical condition of the property nor shall it limit the obligation of prospective buyers to inspect and to familiarize themselves with potentially adverse conditions related to the physical condition of the property, any improvements located on the property, and the neighborhood in which the property is located. No cause of action shall arise on behalf of any person against a broker for revealing information in compliance with this subsection. No broker shall be liable for failure to disclose any matter other than those matters enumerated in this subsection. Violations of this subsection shall not create liability on the part of the broker absent a finding of fraud on the part of the broker.
      Cf. OCGA § 10-6A-7 (duties owed by a broker engaged by a buyer).


source: Caselaw Access Project

author: Ellington, Chief Judge.

license: Public Domain

text:
    A11A1316.
    ROONEY v. THE STATE.
    (715 SE2d 780)
   Ellington, Chief Judge.

In 1995, John Rooney entered a negotiated plea of guilty to rape, aggravated sodomy, aggravated sexual battery, and three counts of battery. In an unpublished opinion, this Court affirmed the denial of his motion for an out-of-time appeal. Rooney v. State, 248 Ga. App. XXVII (2001). In the years since, Rooney has filed several motions for post-conviction relief. See Rooney v. State, 287 Ga. 1 (690 SE2d 804) (2010). Most recently, Rooney filed a Motion to Vacate Unconstitutional, Null, and Void Sentences, a Motion to Secure Attendance of a State Prisoner at Hearings, and a Motion to Disqualify and/or Recuse Trial Judge. The trial court denied the motions, and Rooney appeals. For the reasons explained below, we affirm.

1. The trial court sentenced Rooney to 64 years confinement and ordered that, upon service of 50 years, Rooney could serve the remaining 14 years on probation. As special conditions of such probation, the trial court ordered that Rooney have no contact with the victim and that he submit to mental health counseling. Rooney contends that the trial court unconstitutionally invaded the authority of the Board of Pardons and Paroles when it imposed future conditions on parole. Regardless of any reference to parole made during the sentencing hearing, however, the judgment entered on July 10, 1995, makes no reference to any future parole. Howard v. State, 281 Ga. App. 797, 803 (4) (637 SE2d 448) (2006) (“A written sentence controls over the trial court’s oral pronouncements.”) (citation, punctuation and footnote omitted). Further, the trial court acted within its authority in imposing conditions on probation. OCGA § 42-8-35 (a) (“The [trial] court shall determine the terms and conditions of probation[.]”); State v. Pless, 282 Ga. 58, 61 (646 SE2d 202) (2007) (“OCGA § 42-8-35 vests the sentencing court with the general power to impose reasonable conditions of probation.”); see also Terry v. Hamrick, 284 Ga. 24, 27 (3) (663 SE2d 256) (2008) (“[A] trial court has broad discretion in fashioning probation conditions.”) (citation omitted). Accordingly, this argument lacks merit.

2. Rooney contends that the trial court imposed special conditions of probation without his knowledge or consent. “[T]he only ground for authorizing a trial court to correct a sentence at any time is that the sentence is void. A sentence is void if the court imposes punishment that the law does not allow.” (Citations and punctuation omitted.) Rooney v. State, 287 Ga. at 2 (2). Even if the trial court failed to notify Rooney on the record of every detail of the conditions of probation, however, Rooney failed to articulate any basis for finding that his sentence in any way imposes punishment that the law does not allow. Consequently, this argument provides no basis for vacating his sentence. Coleman v. State, 305 Ga. App. 680, 680-681 (700 SE2d 668) (2010).

3. Rooney contends that Judge Debra K. Turner erred in denying his motion to recuse herself, which motion was based on her alleged “partiality, personal bias, and prejudice” against him. The affidavit Rooney executed in support of his motion, however, showed that Rooney believed that the judge was biased based on her rulings that were adverse to him, including those that were reversed by the Supreme Court of Georgia. See Rooney v. State, 287 Ga. 1. Because Rooney’s motion failed to show any legal basis for recusal, the trial court did not err in denying the motion. See Gibson v. Decatur Fed. Sav. & Loan, 235 Ga. App. 160, 166 (3) (508 SE2d 788) (1998) (“In order to be disqualifying the alleged bias must stem from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from his [or her] participation in the case.”) (citations and punctuation omitted).

Decided August 9, 2011

John Rooney, pro se.

Daniel J. Porter, District Attorney, William C. Akins, Assistant District Attorney, for appellee.

4. The State’s motion to dismiss this appeal is denied.

Judgment affirmed.

Miller, P. J., and Doyle, J., concur.

       Cf. Terry v. Hamrick, 284 Ga. 24, 25 (2) (663 SE2d 256) (2008) (Because the Board of Pardons and Paroles has executive power regarding the terms and conditions of parole, the trial court violated the constitutional provision regarding the separation of powers when it entered a judgment that, as a condition of parole and probation, banished the defendant from every county in Georgia except one.).

        Howard v. State, 281 Ga. App. 797, 803-804 (5) (637 SE2d 448) (2006) (A sentence is void if it imposes a period of confinement greater than the statutory maximum for the offense.); Barraco v. State, 252 Ga. App. 25 (555 SE2d 244) (2001) (A sentence is void if it imposes a fine greater than the statutory maximum for the offense.); Sledge v. State, 245 Ga. App. 488 (537 SE2d 753) (2000) (A sentence is void if it imposes punishment for both a greater offense and a lesser included offense for the same act.).


author: Doyle, Judge.

text:
    A10A0436.
    THE STATE v. OUTEN.
    (715 SE2d 782)
    Decided August 10, 2011.

      Kenneth W. Mauldin, District Attorney, Brian V Patterson,

      Assistant District Attorney, for appellant. Edward H. Brumby, Jr., for appellee.
   Doyle, Judge.

In State v. Outen, we affirmed the grant of a special demurrer. The Supreme Court reversed this Court’s opinion in State v. Outen, concluding that “there was no appellate jurisdiction in the Court of Appeals.”

Accordingly, we adopt the opinion of the Supreme Court, vacate our judgment in this case, and dismiss the appeal.

Appeal dismissed.

Ellington, C. J., and Andrews, J., concur.

       304 Ga. App. 203 (695 SE2d 654) (2010).

       289 Ga. 579 (714 SE2d 581) (2011).

       Id.


author: Adams, Judge.

text:
    A11A0929, A11A0930.
    FLOREZ et al. v. STATE OF GEORGIA (two cases).
    (715 SE2d 782)
   Adams, Judge.

The appellants in this civil RICO action, OCGA § 16-14-1 et seq., appeal entry of default judgment against them, and, in a separate appeal, they appeal subsequent orders entered in connection with ensuing collection efforts.

The record shows that on July 8, 2010, the State of Georgia filed a civil RICO action against Raymond Florez III, Gabriel Florez, EZ Pay Auto, Inc., and Club Silverado, alleging that they engaged in racketeering activity, including drug distribution and money laundering. The complaint also identified as in rem defendants certain property allegedly obtained in connection with those activities. On July 15, each defendant was served with a copy of the complaint and a summons. Each proof of service was filed in the Superior Court of Toombs County on July 26. On September 1, 2010, the State of Georgia moved for and was granted default judgment against all defendants on the ground that no defensive pleadings had been filed at that time.

Case No. A11A0929

1. In response to the default judgment, the appellants did not move to open the default in the Superior Court. Rather, on September 9, 2010, they filed a notice of appeal. They contend on appeal that the trial court entered judgment on the default prematurely and that therefore they did not have to take action in the trial court. Although they are correct on the first point, they are incorrect on the latter.

(a) The appellants’ first argument is based on an important change in the law regarding filing the return of service of process that went into effect shortly before this action was filed. Georgia law provides that a defendant must serve an answer within 30 days after the service of the summons and complaint “unless otherwise provided by statute.” OCGA § 9-11-12 (a). Effective July 1, 2010, OCGA § 9-11-4 (h) was amended to provide that proof of service be filed within five days of service and that, if proof is not filed in that time, “the time for the party served to answer the process shall not begin to run until such proof of service is filed.” See Ga. L. 2010, p. 825, § 4. Thus, in this case, the defendants had 30 days from July 26, 2010, in which to file their answer, or August 25, 2010.

The appellants did not file by that date, but under the statute governing default procedures, the appellants then had 15 days, or until September 9, 2010, in which to open default as a matter of right by filing defenses and paying costs. OCGA § 9-11-55. The trial court, however, entered default judgment on September 1. Two cases from 1959 and 1963 address these circumstances, and the key provisions of the law regarding default judgments have not materially changed. Therefore the cases are controlling.

This Court held in 1959 that until the 15-day period expires, a judgment entered on the default is premature. Potts v. Smith Grain Co., 99 Ga. App. 270, 273 (1) (108 SE2d 285) (1959). The court highlighted aspects of Code Ann. § 110-401, one of the Code sections governing default at that time:

If any case is not answered on or before its appearance day, such case shall automatically become in default unless the time has been extended as provided by law. The default may be opened as a matter of right by the filing of such defenses within 15 days after the appearance day, upon the payment of costs. If the case is still in default after the expiration of such period of 15 days, the plaintiff, at any time thereafter, shall be entitled to verdict and judgment by default.

(Emphasis in original.) Id. at 272 (1). Relying on this language, the court held that any judgment entered on the default prior to the end of the 15-day period was premature. Id. at 273 (1). The relevant language of the statute governing default judgments has not changed since that time.

In Potts, the trial court had entered judgment on the first day of the 15-day period, and on the eighth day of the period, the defendant filed a motion to vacate the judgment along with a statement of a meritorious defense; the court also concluded that costs had been paid. Id. at 271, 273 (2). This Court addressed whether the 15-day period continued to run after the premature judgment. We held that, despite the premature judgment, “the defendant on motion made within such 15-day period had an absolute right to have it set aside and the default openedf,] provided he paid the costs and set out a meritorious defense.” Id. at 273 (1), 277 (5) (“On Motion for Rehearing”).

In 1963, this Court followed Potts and added that any such premature judgment could be set aside upon proper motion:

[T]he right of the defendant to open a default judgment within 15 days after the appearance day upon payment of costs is absolute; any judgment entered prior thereto is premature and must be set aside where a proper motion is made and the costs paid within such 15 day period.

Parker v. Branan, 108 Ga. App. 229 (2) (132 SE2d 556) (1963). In Parker, the defendant failed to take any action within the 15-day period, even though a premature judgment had been entered during that time. Id. Outside of that period, the defendant moved to set aside. Id. The trial court set aside the premature judgment but reentered the judgment because the defendant had not taken any action in the 15-day period nor shown providential cause or excusable neglect. Id. The court explained that the running of the 15-day period is not affected by entry of a premature judgment; a defendant must act during that period in order to open such a judgment as a matter of right. Id. at 230 (3).

We conclude that the law has consistently provided that defendants, such as the appellants herein, have the full 15-day period following default in which to open default as a matter of right by filing defenses and paying costs, even if a court has entered judgment on the default prematurely. For the appellants herein, the statutory period ran through September 9, 2010; the appellants filed their notice of appeal on that day instead of filing an answer and paying costs.

(b) The appellants argue that they did not have to take any action in the trial court because entry of a default judgment is a final judgment and directly appealable. They rely on Brock Built City Neighborhoods, LLC v. Century Fire Protection, LLC, 295 Ga. App. 205, 206, n. 1 (671 SE2d 240) (2008), and Camelback Mgmt. Co. v. Phoenix Periodicals, 192 Ga. App. 101, 102 (1) (383 SE2d 651) (1989). But those cases address the question of whether this Court has jurisdiction of an appeal of a default judgment when a defendant has not moved to set aside the judgment below. See Camelback, 192 Ga. App. at 102 (this Court had jurisdiction of appeal of entry of default judgment even though no motion to set aside the default judgment had been filed in the trial court; defendant had filed an answer and paid costs within the 15-day period for opening default as a matter of right); Brock Built, 295 Ga. App. at 206, n. 1 (in a case not involving the 15-day period, this Court had jurisdiction of the appeal of a default judgment even though the defendant had not moved to set aside the default). The question of whether the appellant herein properly attempted to open default as a matter of right within the 15-day period is a separate issue.

(c) Next, although the filing of the notice of appeal deprived the trial court of jurisdiction to amend, alter or modify the default judgment, no such action was required of the trial court in order for the appellants to open default as a matter of right; rather, the appellants need have only filed an answer and paid costs in order to open default during the 15-day period.

“A notice of appeal divests the trial court of jurisdiction to supplement, amend, alter, or modify the judgment while the appeal of that judgment remains pending.” McLeod v. Clements, 306 Ga. App. 355, 357 (2) (702 SE2d 638) (2010); see also OCGA § 5-6-46 (a). But the notice of appeal does not deprive the trial court of jurisdiction of “matters in the same case not affecting the judgment on appeal.” (Citation and punctuation omitted.) Davis v. Harpagon Co., 281 Ga. 250, 253 (8) (637 SE2d 1) (2006). Thus proceedings may continue in the trial court, including that the parties may file pleadings:

“[The court] may conduct interlocutory matters, allow pleadings, and proceed with the trial of the case, subject to the peril that any decision reached which conflicts with the decision of the appellate court when rendered will thereby be made nugatory.”

Cohran v. Carlin, 249 Ga. 510, 512 (291 SE2d 538) (1982), quoting with approval, Southeastern Wholesale Furniture Co. v. Atlanta &c. Co., 84 Ga. App. 271, 276 (1) (a) (66 SE2d 68) (1951). An answer is a pleading. OCGA § 9-11-7 (a). And, in order to open default during the 15-day period, the appellants need only have filed their answer and paid costs, no court action was required:

Since the statute allows the default to be opened as a “matter of right” under such circumstances, it was unnecessary for the appellant to file a motion with the court seeking permission to open the default and to file defensive pleadings.

Camelback, 192 Ga. App. at 102 (3) (motion to set aside unnecessary). Compare Potts, 99 Ga. App. at 271 (defendant filed a motion to vacate); Parker, 108 Ga. App. at 229 (defendant moved to set aside). Further, we find no authority for the proposition that the filing of a notice of appeal tolls the 15-day period, and to do so in this case would have provided the appellants a much greater than 300-day period in which to open default as a matter of right.

(d) The appellants herein, however, never attempted to exercise their right to open default in the 15-day period, or even thereafter, as is shown by the record in the two appeals. The appellants therefore failed to timely open default as a matter of right, and accordingly they cannot show reversible error. Cf. H. N. Real Estate Group, LLC v. Dixon, 298 Ga. App. 124, 126 (679 SE2d 130) (2009) (plaintiff entitled to default judgment as a matter of law after the expiration of the 15-day period in which default may be opened as a matter of right where defendant did not move to open the default within the statutory time period).

(e) It does appear, however, that the premature entry of default judgment has deprived the appellants of an opportunity to open default after the running of the 15-day period by showing providential cause, excusable neglect or a proper case. OCGA § 9-11-55 (b); Thomas v. Brown, 308 Ga. App. 514, 516 (3) (707 SE2d 900) (2011). Based on the procedure followed by the trial court in Parker v. Branan, 108 Ga. App. 229 (2), we conclude that the premature judgment should be set aside but, upon remand, the trial court may either reenter judgment or entertain a proper motion to open default under OCGA § 9-11-55 (b).

Case No. A11A0930

2. In a separate appeal, the appellants contend the trial court erred in its multiple orders entered on September 27, 2010 and thereafter, in which the court allowed the plaintiff to execute judgment on the multiple items of property identified as in rem defendants in the action. Their only argument is that the filing of the notice of appeal acted as a supersedeas that should have prevented the court from entering the orders. But on September 16, 2010, the court granted the appellee’s motion for supersedeas bond. See OCGA § 5-6-46. The appellants argue that the trial court failed to file the order, but the file-stamped copy is found in the supplemental record. The appellants have failed to comply with the order to post super-sedeas bond, therefore the appellee was free to enforce the judgment at its peril pending a decision on appeal. See Biederbeck v. Marbut, 294 Ga. App. 799, 800 (1) (670 SE2d 483) (2008) (failure to file supersedeas bond removes supersedeas feature of appeal); Hawn v. Chastain, 246 Ga. 723, 726 (273 SE2d 135) (1980) (appellee may proceed to enforce the judgment).

Judgment vacated and case remanded with direction in Case No. A11A0929. Judgment affirmed in Case No. A11A0930.

Barnes, P. J., and Blackwell, J., concur.

Decided August 11, 2011

Stephen B. Taylor, Charles W. Brannon, Jr., for appellants.

S. Hayward Altman, District Attorney, Andrew J. Ekonomou, Michael G. Lambros, for appellees.

       OCGA § 1-3-4 (a) (1) (“Unless a different effective date is specified in an Act . . . [a]ny Act which is approved by the Governor or which becomes law without his approval on or after the first day of January and prior to the first day of July of a calendar year shall become effective on the first day of July. . . .”).

       Although the Court also relied on language found in Code Ann. § 110-406, which was repealed in 1962, Ga. L. 1962, p. 687, § 2, the language therein merely reenforced the timing, i.e., that “the period allowed by law for opening defaults as a matter of right” had to have expired before the trial court could take certain further action. See Potts, 99 Ga. App. at 272 (1).

       The current law provides:
      If in any case an answer has not been filed within the time required by this chapter, the case shall automatically become in default unless the time for filing the answer has been extended as provided by law. The default may be opened as a matter of right by the filing of such defenses within 15 days of the day of default, upon the payment of costs. If the case is still in default after the expiration of the period of 15 days, the plaintiff at any time thereafter shall be entitled to verdict and judgment by default....
      OCGA § 9-11-55 (a) (emphasis supplied). See also Electro-Kinetics Corp. v. Wilson, 122 Ga. App. 171 (176 SE2d 604) (1970) (language of Code Ann. § 81A-155 relating to automatic default substantially same as former practice of superior courts, citing Code Ann. § 110-401).


text:
    A11A1097.
    A11A1195.
    In the Interest of A. D., a child. In the Interest of J. W., a child.
    (715 SE2d 787)
   Adams, Judge.

Following a bench trial, A. D. and J. W. were adjudicated delinquent based on charges of battery and of violating the Georgia Street Gang Terrorism and Prevention Act, OCGA § 16-15-1 et seq. (the “Act”), arising out of a fight involving the two boys and a third person. Both appellants solely challenge the sufficiency of the evidence of gang activity. The two cases have been consolidated for the purpose of appeal.

On appeal, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). See also In the Interest of J. L. H., 289 Ga. App. 30 (656 SE2d 160) (2007) (re: delinquency proceedings). And “[a]n adjudication of delinquency cannot be based on hearsay, as hearsay is inadmissible, without probative value, and carries no weight whatsoever in establishing a fact.” (Citations and punctuation omitted.) In the Interest of C. G., 261 Ga. App. 814 (1) (584 SE2d 33) (2003).

The State presented one witness, Detective Choice Barnes of the Valdosta Police Department, who is also a member of the “Gang Task Force.” Barnes testified that on October 6, 2010, he investigated an incident that occurred on October 5. Thus, he was not a witness to the events. He spoke to the victim and a witness that day, but neither testified at trial, and therefore their statements are pure hearsay, which “ ‘has no probative value even if it is admitted without objection.’ [Cit.]” Jones v. State, 271 Ga. 516, 517 (2) (520 SE2d 454) (1999). Even with regard to the victim — allegedly a child — the child hearsay statute only allows such testimony for children less than 14 years of age, OCGA § 24-3-16, and no evidence was presented as to the victim’s age.

Barnes did, however, see the victim and apparently observe his injuries, as well as speak to the appellants. With regard to the battery, A. D. told Barnes that he and J. W. were walking from school together on opposite sides of the street because they “were not supposed to be together.” J. W. then approached the victim and “they got into it.” A. D. reported that J. W. threw the first punch. A. D. said that he then tried to break up the fight and that he did not hit the victim; however, A. D. does not appeal his adjudication based on battery. J. W. denied getting into an incident with the victim, but he, too, does not appeal his adjudication based on battery.

In addition to battery, the two juveniles were charged with violating OCGA § 16-15-4 (a), which makes it unlawful for persons associated with a “criminal street gang” to engage in “criminal gang activity” by committing certain enumerated predicate offenses:

It shall be unlawful for any person employed by or associated with a criminal street gang to conduct or participate in criminal gang activity through the commission of any offense enumerated in paragraph (1) of Code Section 16-15-3.

OCGA § 16-15-4 (a). Neither appellant challenges his adjudication of the predicate offense — battery. See OCGA §§ 16-15-3 (1) (A); 16-14-3 (9) (A) (v); 16-5-23.1 (battery). Rather they contend the State failed to show both that their gangs fit the definition of “criminal street gang” and that a nexus existed between the battery and their gang affiliation. See OCGA § 16-15-3 (2); Rodriguez v. State, 284 Ga. 803, 807 (1) (671 SE2d 497) (2009).

At the hearing, Barnes easily established that both boys were members of related gangs. He testified that J. W admitted that he was a member of a gang named “Nine Trey Blood,” part of the “Blood Gang.” Barnes observed that J. W had tattoos, and J. W said that he got them “while he was in boot camp,” but boot camp was never explained. Barnes recognized one of the tattoos as indicating membership in the Blood Gang, and J. W. explained that the other tattoos meant that relatives or friends of his had died, although he did not explain the circumstances. Barnes testified that A. D. admitted being a member of a gang named “Piru,” “another Blood group.” He also was tattooed in “boot camp,” and he had tattoos similar to J. W.’s. Based on these conversations with the appellants, along with the tattoos and other police work, Barnes testified that he had “documented” the appellants as being members of a local gang. He testified that although the appellants were in separate groups, they were both part of the Blood Gang and therefore could associate together. He testified the victim reported that A. D. said the term “blatt” as he walked away after the fight, which, the officer testified was a Blood Gang term used as a greeting or warning, either that police or others are coming. Barnes admitted that he had no information suggesting that the victim was a gang member.

Barnes did not, however, describe the Blood Gang or testify about any of their activities. The Act defines a “criminal street gang” as a group of three or more persons that engages in “criminal gang activity”:

“Criminal street gang” means any organization, association, or group of three or more persons associated in fact, whether formal or informal, which engages in criminal gang activity as defined in paragraph (1) of this Code section. . . . Such term shall not include three or more persons, associated in fact, whether formal or informal, who are not engaged in criminal gang activity.

OCGA § 16-15-3 (2). And “[c]riminal gang activity” is defined as “the commission, attempted commission, conspiracy to commit, or solicitation, coercion, or intimidation of another person to commit any of the [enumerated] offenses.” OCGA § 16-15-3 (1).

First, the battery committed in this case cannot serve as proof of the necessary gang activity. As explained by the Supreme Court:

[T]he commission of an enumerated offense by the defendant is not itself sufficient to prove the existence of a “criminal street gang.” If it were sufficient, the nonsensical result would be that a member of any legitimate group could violate the Act merely by committing an enumerated offense.

Rodriguez, 284 Ga. at 808 (2). Second, there is simply no evidence in the record about the named gangs’ activities, let alone their involvement in any criminal activities. Barnes never testified that any of the named gangs committed, attempted to commit, conspired to commit, or solicited, coerced, or intimidated another person to commit any of the offenses enumerated in OCGA § 16-15-3 (1). Although Barnes testified about the gangs’ tattoos, similar names, “boot camp,” and the use of the term “blatt,” this type of information merely established the existence of a gang, not its activities:

The existence of such organization, association, or group of individuals associated in fact may be established by evidence of a common name or common identifying signs, symbols, tattoos, graffiti, or attire or other distinguishing characteristics, including, but not limited to, common activities, customs, or behaviors.

Decided August 11, 2011.

Meredith G. Brasher, for appellant.

J. David Miller, District Attorney, Laura A. Wood, Justo C. Cabral III, Assistant District Attorneys, for appellee.

OCGA § 16-15-3 (2). The Act plainly states that an organization is not a “criminal street gang” unless its members are “engaged in criminal gang activity.” Compare In the Interest of C. P., 296 Ga. App. 572, 575 (675 SE2d 287) (2009) (officer testified that he had arrested other Bloodz gang members for engaging in criminal gang activity).

Because the State failed to establish that a “criminal street gang” was involved in the battery, we need not address the appellants’ second argument, that the State failed to establish a “nexus between the [battery] and an intent to further street gang activity.” Rodriguez, 284 Ga. at 807. The judgments on the counts charging criminal street gang activity are reversed in both cases.

Judgments reversed.

Barnes, P J., and Blackwell, J., concur.

       OCGA § 16-15-3 (2) was amended in 2010, effective July 1, 2010. Ga. L. 2010, p. 231, § 2. See also OCGA § 1-3-4 (a) (1) (re: effective date). The amended statute is therefore applicable to this case.


author: Andrews, Judge.

text:
    A11A0926, A11A0927, A11A0928, A11A1027.
    HIGDON v. THE STATE (four cases).
    (715 SE2d 741)
   Andrews, Judge.

Carl David Higdon pleaded guilty to various felony and misdemeanor offenses charged in four cases. He appeals from the sentences imposed in the separate judgment entered in each case claiming that the trial court erroneously refused to exercise its discretion to consider sentencing him on all the offenses as a first offender under the provisions of OCGA § 42-8-60 et seq. et seq. We combine the appeals for this opinion, find no error, and affirm the judgment and sentences in all four cases.

At a hearing on November 23, 2010, Higdon entered guilty pleas to all the offenses set forth in three accusations and one indictment.

In Case No. A11A0926, Higdon pleaded guilty to three counts of deposit account fraud in violation of OCGA § 16-9-20. As set forth in an accusation filed on January 27, 2010, in Catoosa County, Higdon was charged in that case with one felony count by delivering one bad check on February 5, 2009, for $850 in exchange for currency, and two misdemeanor counts by delivering two bad checks on February 21, 2009, for $535 and $214, respectively, in exchange for jewelry.

In Case No. A11A0927, Higdon pleaded guilty to three additional counts of deposit account fraud in violation of OCGA § 16-9-20. As set forth in another accusation also filed on January 27, 2010, in Catoosa County, Higdon was charged in that case with three misdemeanor counts by delivering one bad check on June 29, 2009, for $286.76 in exchange for a microwave and an iron; delivering one bad check on June 26, 2009, for $499 in exchange for a mattress and foundation; and delivering one bad check on July 2, 2009, for $150 in exchange for reserving the Fort Oglethorpe City swimming pool.

In Case No. A11A0928, Higdon pleaded guilty to one count of misdemeanor theft by taking in violation of OCGA § 16-8-2. In that case, Higdon was charged by accusation filed November 23, 2010, in Catoosa County with taking a utility trailer on December 26, 2009, with the intent of depriving the owner of the property.

In Case No. A11A1027, Higdon pleaded guilty to one felony count of burglary in violation of OCGA § 16-7-1. In that case, Higdon was charged by indictment filed April 6, 2010, in Walker County with burglarizing a dwelling house in December 2009.

After the trial court accepted the guilty pleas as voluntary, but before any adjudication of guilt, defense counsel asked the court to sentence Higdon on all the offenses in all four cases as a first offender under OCGA § 42-8-60 et seq. OCGA § 42-8-60 provides in part that:

(a) Upon a verdict or plea of guilty or a plea of nolo contendere, but before an adjudication of guilt, in the case of a defendant who has not been previously convicted of a felony, the court may, without entering a judgment of guilt and with the consent of the defendant:
(1) Defer further proceeding and place the defendant on probation as provided by law; or
(2) Sentence the defendant to a term of confinement as provided by law.
(b) Upon violation by the defendant of the terms of probation, upon a conviction for another crime during the period of probation, or upon the court determining that the defendant is or was not eligible for sentencing under this article, the court may enter an adjudication of guilt and proceed as otherwise provided by law. No person may avail himself or herself of this article on more than one occasion.

Under OCGA § 42-8-62, once the defendant has fulfilled the terms of the first offender sentence or been released by the court, the defendant is discharged without adjudication of guilt, exonerated of criminal purpose (with certain exceptions), and is not considered to have a criminal conviction. The purpose is to allow the first offender an opportunity for rehabilitation without the stigma of a criminal conviction. State v. Wiley, 233 Ga. 316, 317 (210 SE2d 790) (1974).

It is undisputed that Higdon had never previously been convicted of a felony and was otherwise eligible to be sentenced as a first offender. The trial court refused Higdon’s request for first offender treatment in all four cases, stating that it had no authority to treat him as a first offender in all four cases, but offering instead to exercise its discretion to sentence him as a first offender in one of the four cases. Higdon refused the court’s offer to consider first offender treatment in only one case, stating that “there would be no benefit of doing that.”

Whether to grant first offender treatment to a defendant eligible for it is within the discretion of the trial court. Moore v. State, 236 Ga. App. 889, 890 (514 SE2d 73) (1999). When an eligible defendant requests first offender treatment, the trial court has an obligation to consider the request and exercise its discretion. Powell v. State, 271 Ga. App. 550, 551-552 (610 SE2d 178) (2005). Where the record clearly shows that the trial court refused to consider requested first offender treatment based on an automatic policy of denial, or on an erroneous belief that the law did not permit such treatment, this amounts to a refusal to exercise discretion and is reversible error. Id. We find no such reversible error in these cases.

Higdon entered guilty pleas on offenses set forth in four separate charging instruments — three accusations and one indictment on which the court sentenced the defendant in four separate judgments. Under OCGA § 42-8-60 (b), Higdon was entitled to first offender treatment on only “one occasion.” Although “one occasion” is not defined in the first offender statutes, we seek to give effect to the legislature’s intent and, in so doing, give the words their ordinary meaning. Abdulkadir v. State, 279 Ga. 122, 123 (610 SE2d 50) (2005). By limiting first offender treatment to “one occasion,” we find that the legislature intended an application broader than a narrow limit to only one offense. Even if “one occasion” could be reasonably interpreted to limit first offender treatment to only one offense, “[a] criminal statute must be construed strictly against criminal liability and, if it is susceptible to more than one reasonable interpretation, the interpretation most favorable to the party facing criminal liability must be adopted.” Maxwell v. State, 282 Ga. 22, 23 (644 SE2d 822) (2007) (citation and punctuation omitted). Applying the broader application more favorable to criminal defendants, we conclude that the most reasonable interpretation of the legislature’s intention is that “one occasion” of first offender treatment means for one or more offenses set forth in one charging instrument for one trial, or for one or more offenses set forth in multiple charging instruments consolidated or joined for one trial. In other words, we conclude that “one occasion” of first offender treatment means in a single prosecution of related offenses. There being no evidence that any of the accusations or the indictment at issue were consolidated or joined for prosecution in a single trial, the trial court correctly concluded that each accusation and the indictment represented “one occasion” for purposes of first offender sentencing, and that it could consider giving Higdon first offender treatment in one case but not all four.

Decided July 27, 2011

Reconsideration denied August 15, 2011

Jad B. Johnson, David J. Dunn, Jr., Jimmonique R. S. Rodgers, for appellant.

Herbert E. Franklin, Jr., District Attorney, Jennifer A. Morris, Assistant District Attorney, for appellee.

Judgments affirmed.

Phipps, E J., and McFadden, J., concur.


author: Mikell, Judge.

text:
    A11A0983.
    BONE v. THE STATE.
    (715 SE2d 789)
   Mikell, Judge.

After a bench trial in the Superior Court of Houston County, Eric Milton Bone was convicted of possession of methamphetamine, giving a false name, misdemeanor obstruction and insufficient taillights. Bone appeals the trial court’s denial of his motion for directed verdict and motion for new trial. Finding no reversible error, we affirm.

“On appeal from a criminal conviction, the evidence must be construed in a light most favorable to the verdict and [Bone] no longer enjoys a presumption of innocence.” An appellate court does not weigh the evidence or determine witness credibility.

So viewed, the record shows that Officer Carder Gravitt stopped a vehicle around midnight for operating with insufficient taillights. Gravitt approached the driver’s side door of the vehicle and asked the driver, Bone, where he was from and for his driver’s license. Bone stated that he was coming from a friend’s house and that he did not have his driver’s license with him. Bone then provided Gravitt with a false name and date of birth. Gravitt suspected that Bone was under the influence of either alcohol or drugs, and called his supervisor to the scene. Gravitt asked Bone to step from the vehicle, and noticed Bone stuff something into his waistband as he complied with the request. Bone then exited the vehicle, shut the door, and began to run.

Gravitt chased Bone and tackled him to the ground. Bone continued to resist, and Gravitt testified that he felt a tug on his belt during the struggle. Bone escaped and ran across the street. Gravitt again tackled Bone. He reached for his taser, but found that it was missing. He used pepper spray to subdue Bone, who eventually ceased his resistance and was handcuffed. Gravitt called for a van, and sat with Bone until another officer arrived. Once Bone was secured in the back of a police car, Gravitt went back to the scene of the first struggle and found his taser and a white pill bottle containing methamphetamine on the ground.

Gravitt returned to his patrol car and began to move Bone to the waiting police van. Gravitt asked Bone who owned the vehicle, and Bone replied that he did not know whose vehicle it was, but that he had given somebody drugs so that he could use the car.

Bone testified that there was a passenger with him in the car, Shawn Michael Phillips, and that he had only known Phillips for two days. He testified that he never saw Phillips leave until he saw Phillips on his knees with an officer by the vehicle, and that he never saw Phillips in possession of the pill bottle.

1. Bone contends that the trial court erred in denying his motion to suppress the statement he made in response to Gravitt’s interrogation regarding the ownership of the vehicle. He contends that the questioning constituted “custodial interrogation” requiring the administration of the Miranda warnings, which had not yet been given, because the officer should have known that his question was likely to elicit an incriminating response. We disagree.

On appellate review of a trial court’s denial of a motion to suppress, “the trial court’s findings on disputed facts will be upheld unless clearly erroneous, and its application of the law to undisputed facts is subject to de novo review.” Whether or not “a statement was the result of an interrogation or was instead volunteered is a determination of fact for the trial court, and it will not be disturbed unless it is clearly erroneous.”

A statement made by a defendant is voluntary when it is made “without being questioned or pressured by an interrogator.” Such statement is “admissible despite the absence of Miranda warnings.” Thus, “a defendant’s voluntary and spontaneous outburst not made in response to custodial questioning or interrogation is admissible at trial.”

In the case at bar, there was evidence to support findings that prior to the defendant’s inculpatory comments there was no interrogation or questioning by Gravitt intended to garner information regarding a crime, but merely a question regarding the car’s ownership. The evidence adduced on this issue shows that after Bone had been tackled, sprayed with pepper spray, handcuffed and placed in the back of a patrol car, he voluntarily started a conversation with Gravitt by admitting that he was not who he previously stated he was. Gravitt then asked Bone, who was currently only suspected for fleeing a police officer and possession of contraband found at the scene: “Well, whose vehicle is this?” Bone replied that he did not know whose vehicle it was, but that he gave somebody drugs so that he could use the car. When asked what he was expecting to learn in response to his question, Gravitt testified that he just wanted to know who the car belonged to. Bone testified at trial and denied that he told Gravitt that he gave somebody drugs. The trial court found that Bone was in custody at the time he made his statement, but that the officer’s question about the ownership of the car was not designed to lead to incriminating evidence, but rather to garner information needed to most efficiently remove the car from the side of the road.

As the trial court’s findings of fact are supported by the testimony of the police officer, the trial court’s determination that Bone’s statements were not solicited and therefore were not protected under Miranda is not clearly erroneous.

2. Bone also claims that the trial court erred in denying his motion for a directed verdict of acquittal as to the charge of possession of methamphetamine. Bone argues that the evidence was not sufficient to convict him of possession of the methamphetamine found near the area where Gravitt tackled him to the ground, because it was possible that the methamphetamine was placed there by his passenger or by another person in the residential area. We disagree.

“The standard of review for denial of a motion for directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction.” Therefore, we construe the evidence in favor of the trier of fact’s verdict and “determine whether a rational trier of fact could have found [Bone] guilty beyond a reasonable doubt of the crimes of which [he] was convicted.”

Possession may be actual or constructive. “A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.” “A finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity.” Further, when constructive possession is established wholly on circumstantial evidence, “the law requires that the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” To warrant a conviction on such evidence, “the proved facts need exclude only reasonable hypotheses — not bare possibilities that the crime could have been committed by someone else.” And “whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused is primarily a question for determination of the jury.” Therefore, “so long as there is slight evidence of access, power, and intention to exercise dominion or control over the contraband, the question of fact as to constructive possession remains with the jury.”

Decided August 15, 2011.

Russell K. Walker, for appellant.

George H. Hartwig III, District Attorney, for appellee.

In the present case the trier of fact was presented with sufficient evidence to determine beyond a reasonable doubt that Bone was guilty of possessing methamphetamine. Such evidence includes Gravitt’s testimony that he saw Bone tuck something into his waistband while still in the car, Bone’s flight from law enforcement after being stopped for a minor traffic offense, the proximity of the methamphetamine to the location where Bone fell to the ground, and Bone’s statement to Gravitt that he had exchanged drugs for use of the car. Bone argues that his passenger, Shawn Phillips, could have placed the drugs on the ground or alternately, the drugs could have been left there by a member of the general public. However, “whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused is primarily a question for determination by the [trier of fact].” Thus, the trier of fact was authorized to conclude that Bone either dropped or discarded the methamphetamine during the struggle with police when he fled from the traffic stop.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

       (Footnote omitted.) Hillman v. State, 296 Ga. App. 310-311 (674 SE2d 370) (2009).

        Benbow v. State, 288 Ga. 192, 193 (702 SE2d 180) (2010).

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       (Citation omitted.) Velazquez v. State, 282 Ga. 871, 877 (8) (655 SE2d 806) (2008).

       (Citation omitted.) Id. Accord Sampson v. State, 209 Ga. App. 213 (2) (433 SE2d 136) (1993).

       (Citation and punctuation omitted.) State v. Davison, 280 Ga. 84, 87 (2) (623 SE2d 500) (2005).

       Id.

       (Citation omitted.) Velazquez, supra at 878 (8).

       Id.

       (Citation and punctuation omitted.) Coleman v. State, 308 Ga. App. 731 (1) (708 SE2d 638) (2011).

       (Citation omitted.) Id.

        Cheesman v. State, 230 Ga. App. 525, 526 (1) (497 SE2d 40) (1998).

       (Punctuation and footnote omitted.) Turner v. State, 298 Ga. App. 107, 108 (679 SE2d 127) (2009).

       (Citation and footnote omitted.) Wilson v. State, 256 Ga. App. 741, 742 (1) (569 SE2d 640) (2002).

       (Citations and punctuation omitted.) Prather v. State, 293 Ga. App. 312, 313 (1) (667 SE2d 113) (2008).

       (Citation omitted; emphasis in original.) Id. The word “ ‘hypothesis’ refers to such reasonable inferences as are ordinarily drawn by ordinary men in the light of their experience in everyday life.” (Punctuation omitted.) Id.

       (Citation and punctuation omitted.) Fortune v. State, 304 Ga. App. 294, 297 (1) (696 SE2d 120) (2010).

       (Footnote omitted.) Davenport v. State, 308 Ga. App. 140, 145 (1) (b) (706 SE2d 757) (2011).

       (Citation and punctuation omitted.) Fortune, supra at 297 (1).

       See Grier v. State, 273 Ga. App. 517, 518 (1) (615 SE2d 586) (2005) (where police found cocaine along the route where defendant fled, “the jury was authorized to conclude that [defendant] threw the cocaine at issue out of his pocket as he ran from or struggled with the police”); Smith v. State, 237 Ga. App. 616, 618 (1) (516 SE2d 319) (1999) (where police found cocaine beside the road where defendant swerved during a car chase, “the jury was authorized to infer that the cocaine found on the roadside was in [the defendant’s possession until he abandoned it by throwing it out the car window”).


author: MlKELL, Judge.

text:
    A11A1209.
    WASHINGTON v. THE STATE.
    (715 SE2d 793)
   MlKELL, Judge.

In connection with two incidents of home invasion, Shangia Washington was found guilty by a jury and convicted of two counts each of burglary, armed robbery, and possession of a knife during the commission of a crime. He appeals the denial of his motion for new trial. We affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [sjtate’s case, we must uphold the jury’s verdict.

Properly viewed, the record reflects that in the early morning hours of April 9, 2006, an intruder climbed through a hole cut in a window screen of Lillie Mae Robinson’s house. The intruder threatened her with a knife, demanded money, and took from her a bank envelope containing cash. That same night, an intruder broke into Thomas Bagley’s residence by climbing through a hole cut in a window screen. The intruder held a knife to Bagley’s throat, demanded money and weapons, and picked up Bagley’s cordless phone. When Bagley activated his house alarm, the intruder fled, taking the cordless phone with him. Robinson and Bagley each identified the intruder as Washington, both in a police photo array and at trial. Washington testified at trial and called witnesses to present an alibi defense. He testified that he was too drunk on the night in question to have committed these break-ins.

1. Washington argues that the state’s evidence fails to satisfy the standard set forth in Jackson because there were weaknesses in the victims’ testimony. Robinson did not identify Washington to the police when she first reported the break-in, even though she knew who he was; and Bagley testified that he could see the intruder well enough to identify him by the light of a single 15-watt bulb. However, the credibility of the victims was solely a matter to be resolved by the jury. The victims both provided direct testimony, and their testimony was sufficient to support Washington’s convictions for the charged crimes. Therefore, contrary to Washington’s contention, the rule applicable to convictions based on circumstantial evidence, that the evidence must “exclude every other reasonable hypothesis save that of the guilt of the accused,” does not apply to the case at bar. Washington’s challenge to the sufficiency of the evidence is without merit.

Decided August 15, 2011.

Martin H. Eaves, for appellant.

Richard E. Currie, District Attorney, Michelle C. Mclntire, Assistant District Attorney, for appellee.

2. Washington argues that the state improperly placed his character into issue. The investigating officer testified that he directed that Washington’s photograph be put in the police photo array because he “had received information that [Washington] was a possible suspect.” Questioning of the officer continued. A short time later, Washington moved to strike this testimony from the record and moved for a mistrial, without providing any ground for his objection or his motion for mistrial. The trial court denied Washington’s motion for mistrial and offered to give a curative instruction, which Washington agreed to “think about.” Washington did not raise the issue again and the trial court did not rule on it.

Washington has waived consideration of this alleged error. Because he failed to object to this testimony in a timely manner and on the specific grounds he now asserts on appeal, we are precluded from considering this issue on appeal.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

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

       Supra.

       See Robinson v. State, 297 Ga. App. 43, 45 (1) (676 SE2d 770) (2009).

       See Wallace v. State, 289 Ga. App. 497, 498-499 (657 SE2d 874) (2008) (“the testimony of a single witness is generally sufficient to establish a fact, and this includes a victim’s uncorroborated identification of an assailant”) (citation and punctuation omitted).

       OCGA § 24-4-6.

       See Williams v. State, 308 Ga. App. 296, 298 (707 SE2d 532) (2011).

        See Henley v. State, 281 Ga. App. 242,243 (2) (635 SE2d 856) (2006) (“an objection must specify the evidentiary rule at issue”).


author: Blackwell, Judge.

text:
    A11A1240.
    HERBERT v. THE STATE.
    (715 SE2d 795)
   Blackwell, Judge.

Vincent Herbert was tried by a Whitfield County jury and convicted of aggravated stalking. He appeals, asserting that the evidence adduced at trial is insufficient to prove beyond a reasonable doubt that he committed aggravated stalking because, he says, it does not show that he engaged in a pattern of harassing and intimidating behavior. We find no merit in this claim of error and affirm.

When we consider whether the evidence is sufficient to sustain a conviction, we ask whether any rational jury could find proof of guilt beyond a reasonable doubt in the evidence adduced at trial, viewing that evidence in the light most favorable to the verdict. See Cooper v. State, 299 Ga. App. 199, 200 (682 SE2d 154) (2009). And we bear in mind that it is the function of the jury, not this Court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from it. Ferguson v. State, 307 Ga. App. 232, 233 (1) (704 SE2d 470) (2010). “So, if the record contains some competent evidence to prove each element of the crime of which the defendant was convicted, even though that evidence may be contradicted, we must uphold the conviction.” Id. (citation omitted).

Viewed in the light most favorable to the verdict, the record shows that Herbert and the victim met in 2005 and married in 2007. Soon after they met, Herbert began to abuse the victim. In 2005, for instance, Herbert learned that the victim had changed her profile on a social networking website, and he confronted her about it, demanding her password for the website. In the course of this confrontation, Herbert approached the victim with a large knife, held it to her throat, and said that he would kill her if she did not stop crying. Between 2005 and 2007, Herbert and the victim had a number of other violent confrontations, which involved Herbert becoming enraged, forcing the victim from their house, breaking her belongings, and striking her. Once, in 2007, Herbert drove his car at the victim as she ran from him, and when he failed to strike her with his car, he exited the car and beat her with his fists. And one day in 2008, Herbert forced the six-year-old son of the victim from their house and threw out his clothing. Herbert then told the victim that he would kill both her and her son if the son did not listen to him. Herbert also threatened to “stomp” the unborn child that the victim was carrying, pulled on her fingers until she experienced pain, poured ice water over her head, broke her cell phone, and ripped the phone lines from the wall.

Finally, on April 15, 2009, Herbert was arrested and charged with family violence battery and cruelty to children in the third degree, following another incident in which he struck the face of the victim with a closed fist. Herbert was permitted to bond out of jail the next day, subject to the condition that he stay away from the victim and her children. But five days later, Herbert approached the victim and their infant daughter in a Wal-Mart, walking up behind them and whispering the name of the victim until she turned around. The victim told Herbert that she did not want any trouble and asked him to leave her alone. After angrily making various accusations about the victim, Herbert tried to take their baby out of her stroller. The victim told Herbert that he could not remove the baby from the stroller, causing him to become angrier. The victim then started backing away from Herbert, who threatened to “knock [her] block off.” Herbert pursued the victim, swinging at her with his fists. Herbert also warned the victim to leave Dalton and that, if he saw her again, he would kill her.

Based on the incident at the Wal-Mart, Herbert was charged with aggravated stalking. The jury found Herbert guilty of this charge, and the trial court sentenced him to two years imprisonment, followed by three years of probation. On appeal, Herbert challenges the sufficiency of the evidence adduced at his trial.

Under Georgia law, a person commits aggravated stalking when, in violation of a protective order, he “follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.” OCGA § 16-5-91 (a). So, in the circumstances of this case, the State was required to prove that a protective order prohibited Herbert from having contact with the victim, that Herbert violated the protective order by contacting her without her consent, and that he contacted her for the purpose of harassing and intimidating her. See Louisyr v. State, 307 Ga. App. 724, 728 (1) (706 SE2d 114) (2011). To prove an act was done for the purpose of harassing and intimidating, the State must show that it was part of a “pattern of harassing and intimidating behavior.” State v. Burke, 287 Ga. 377, 379 (695 SE2d 649) (2010).

Herbert does not dispute that a protective order existed or that he violated it by contacting the victim, but relying on Burke, he argues that the State failed to prove that his contact with her was part of a pattern of harassing and intimidating behavior. He says that any violent confrontations with the victim prior to the issuance of the protective order are only “prior difficulties” and that evidence of these confrontations, therefore, cannot establish a pattern of harassing and intimidating behavior. We do not agree.

Although the Supreme Court said in Burke that “a single violation of a protective order, by itself, does not amount to aggravated stalking,” 287 Ga. at 378-379 (emphasis supplied), we later held in Louisyr that OCGA § 16-5-91 prohibits even a single violation of a protective order ¿/"that violation is part of a pattern of harassing and intimidating behavior. 307 Ga. App. at 729 (1). We explained in Louisyr that, to determine whether the evidence shows a pattern of harassing and intimidating behavior,

Decided August 15, 2011.

the jury can consider a number of factors, including the prior history between the parties, the defendant’s surreptitious conduct, as well as his overtly confrontational acts, and any attempts by the defendant to contact, communicate with, or control the victim indirectly, as through third parties.

Id. (Footnotes omitted.) Even more recently, in Hervey v. State, 308 Ga. App. 290 (707 SE2d 189) (2011), we held that the evidence was sufficient to prove a pattern of harassing and intimidating behavior where the evidence showed that the violation of a protective order was preceded by repeated threats to the victim. See 308 Ga. App. at 292. See also Davidson v. State, 295 Ga. App. 702 (673 SE2d 91) (2009) (evidence that defendant telephoned victim in violation of condition of probation, coupled with evidence of threats and conduct that predated the imposition of the condition of probation, was sufficient to prove a pattern of harassing and intimidating behavior and sustain an aggravated stalking conviction). Here, the jury was authorized to find Herbert guilty of aggravated stalking based on his violation of the protective order and his extensive history of harassing and intimidating the victim.

For these reasons, we affirm the judgment of conviction.

Judgment affirmed.

Barnes, E J., and Adams, J., concur.

Kelley A. Dial, for appellant.

Kermit N. McManus, District Attorney, for appellee.

       See OCGA § 16-5-91 (a).

       This requirement is taken from OCGA § 16-5-90 (a) (1), which provides in relevant part:
      . . . For the purposes of this article, the term “harassing and intimidating” means a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person’s safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose. . . .

       We note that Burke presented unique circumstances that are absent in this case. In Burke, the State attempted to prove aggravated stalking at trial by establishing only that the defendant violated a protective order, “a strategy that eliminated any basis for establishing a ‘pattern’ of harassing and intimidating behavior.” 287 Ga. at 379. In fact, the State incorrectly stated the law to the jury, explicitly arguing “that it did not have to prove more than one contact; it only had to prove a violation of a court order.” Burke v. State, 297 Ga. App. 38, 42 (676 SE2d 766) (2009).

       Even if the earlier violent confrontations did not show a pattern of harassing and intimidating behavior, evidence of what happened inside the Wal-Mart on April 21, 2009 would be enough to authorize a finding of such a pattern. “A ‘course of conduct’ refers to a series of successive actions, and, as such, is equivalent to a ‘pattern of behavior.’ ” Daker v. Williams, 279 Ga. 782, 785 (621 SE2d 449) (2005). When Herbert contacted the victim in the Wal-Mart, Herbert approached the victim, whispered her name, made accusations about her, attempted to remove their baby from her stroller, attempted to strike the victim twice, threatened to “knock [her] block off,” and ultimately threatened to kill her. This conduct amounts to a series of successive actions that would authorize the jury to find a pattern of harassing and intimidating behavior. See Louisyr, 307 Ga. App. at 729 (1).


author: PHIPPS, Presiding Judge.

text:
    A09A0086.
    THE STATE v. MILLER.
    (716 SE2d 234)
    Decided August 16, 2011.

      Daniel J. Porter, District Attorney, William C. Akins, Assistant District Attorney, for appellant.

      Jack E. Harrell, Jr., Sharon L. Hopkins, for appellee.
   PHIPPS, Presiding Judge.

In State v. Miller, we upheld the trial court’s dismissal of two counts of a five-count indictment. The Supreme Court of Georgia granted certiorari and reversed. Accordingly, our judgment in Miller is vacated, the judgment of the Supreme Court is made the judgment of this court, and the judgment of the trial court on Miller’s motion to dismiss is reversed. The case is remanded for proceedings consistent with this opinion.

Judgment reversed and case remanded.

Smith, P. J., Barnes, P J., Miller, P J., Andrews, Dillard and McFadden, JJ., concur.

       298 Ga. App. 584 (680 SE2d 627) (2009).

        State v. Miller, 287 Ga. 748 (699 SE2d 316) (2010).


text:
    A11A1041.
    STRICKLAND v. THE STATE.
    (715 SE2d 798)
   MlKELL, Judge.

Clarence Strickland was charged by indictment with aggravated sodomy against his daughter B. S. (Count 1); with child molestation against his daughter C. S. (Count 2); and with three counts of child molestation against his girlfriend’s daughter, K. J. (Counts 3, 4, and 5). Following a jury trial, he was found guilty on Count 1 of aggravated sodomy and sentenced to 30 years to serve on that count. He was acquitted on Counts 3, 4, and 5. The jury deadlocked on Count 2, and the trial court declared a mistrial as to that count. Strickland appeals his conviction for aggravated sodomy and the denial of his motion for new trial, contending that he received ineffective assistance of counsel. We affirm.

Viewing the evidence in the light most favorable to the jury’s verdict, the record reflects that B. S., C. S., and K. J. each testified against Strickland. B. S., eleven years old at the time of trial, testified that when she was around eight years old, Strickland put his hands behind her head, pushed her head down over his penis, and forced her to suck his penis and to “drink his pee.” Strickland told B. S. that if she told what had happened, she would get a “whooping.”

C. S., aged 16 at the time of trial, was B. S.’s half-sister. C. S. testified that in May 2007, when she was 14, Strickland came into her bedroom, kissed her neck, and touched her breast. He walked out but came back, said he was sorry, gave her some money, and asked her not to tell.

K. J., C. S.’s older half-sister, was 18 at the time of the trial. K. J. explained that Strickland was not her biological father, but that from the time he moved in with her mother when K. J. was six months old, he was “the only daddy [she] knew.” K. J. testified that early one morning in 2002, when she was eleven years old, Strickland had her sit on his lap; that he fondled her vagina; and that he moved her hand onto his “hard penis.” When K. J. felt Strickland’s penis against her vagina, she started to cry. Strickland stopped, said he was sorry, and told her not to tell anyone or she would be in trouble. Although K. J. revealed this incident to C. S. shortly after it occurred, K. J. did not call the police until 2008, when C. S. told her that Strickland had touched her breast in May 2007. K. J. testified that when she learned of Strickland’s behavior to C. S., she “felt like somebody needed to know.” She “felt like it wasn’t never going to end,” so she called the police.

On June 11, 2008, after receiving a 911 call concerning alleged child molestation, a DeKalb County police officer went to Strickland’s home and spoke to B. S. When he asked her if her father had ever touched her inappropriately, she nodded yes and pointed to her vagina. The officer then called in Detective Kimberly Aviles, of the Special Victims Unit of the DeKalb County Police Department. Aviles came to Strickland’s home and spoke to B. S., who told Aviles that when she was about seven years old, Strickland exposed his penis to her and made her suck it, then peed in her mouth and made her drink it. At that point, Aviles ended the interview in order that B. S. could have a taped forensic interview with the Georgia Center of Child Advocacy. Aviles also spoke with C. S., who stated that Strickland had fondled her breasts. The children asked Aviles if they would have to stay in the house with Strickland, because they had been told they would get a “whooping” if they told anyone. Aviles arranged for the children to stay with their grandmother, Geraldine Hardnett. Hardnett testified that after B. S. came to stay with her, B. S. told her that Strickland put his penis in her mouth and peed in her mouth.

On June 12 or 13, 2008, Dr. Danielle Levy, a psychologist, conducted a forensic interview of B. S. at the Georgia Center for Child Advocacy. Levy testified without objection as an expert in forensic interviewing with children of childhood sexual abuse. Levy testified that in her opinion, and based upon her training and experience, she found her interview with B. S. to be consistent with the interview of a child who had been sexually abused.

The state also introduced similar transaction evidence through the testimony of C. M., a niece of Strickland’s wife and a cousin of B. S. C. M. testified that on one occasion when she was thirteen, Strickland touched her breast and afterward gave her money.

Strickland testified at trial, denying all wrongdoing.

1. Although Strickland does not challenge the sufficiency of the evidence on appeal, we conclude that the evidence adduced at trial was sufficient under the standard set forth in Jackson v. Virginia to authorize the jury to find him guilty of aggravated sodomy beyond a reasonable doubt.

2. Strickland contends that he received ineffective assistance of counsel. In order to prevail on such a claim, Strickland “must show that counsel’s performance was deficient and that, but for that deficient performance, there is a reasonable probability that the outcome of his trial would have been different.” In evaluating the first prong of this test, “[a] strong presumption exists that counsel’s conduct falls within the broad range of professional conduct.” “Failure to satisfy either component of this test is fatal to an ineffectiveness claim. Moreover, the court need not address both components if the defendant has made an insufficient showing on one of them.” On appellate review of the trial court’s ruling, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”

(a) Strickland argues that his trial counsel rendered ineffective assistance by failing to object to certain testimony given by Aviles. In explaining why she ended her interview with B. S. after B. S. told her of Strickland’s inappropriate behavior, Aviles testified as follows:

At that time I ascertained that a molestation incident occurred, and we like to use the Georgia Center for Child Advocacy for any kind of further information. I had what I needed to know: that an incident had occurred and anything further would be ascertained during that interview, that forensic interview, which is seen as more of a nonbias interview.

Strickland contends that trial counsel’s failure to object to this testimony constituted deficient performance. He argues that Aviles’s statement that “a molestation incident occurred” improperly bolstered the credibility of B. S., the prosecuting witness. We do not agree that counsel’s failure to object to this testimony amounted to deficient performance.

“It is well established that credibility of a witness is a matter for the jury, and a witness’s credibility may not be bolstered by the opinion of another witness as to whether the witness is telling the truth.” In this case, however, the testimony complained of, when “reviewed in the context in which it was given,” was not a statement of B. S.’s credibility or an invasion of the province of the jury. In context, Aviles’s testimony concerned her reason for ending her interview with B. S. and referring B. S. to the Georgia Center for Child Advocacy. Aviles testified that after she was called in to the case by the officer who responded to the 911 call, she interviewed the then ten-year-old B. S. B. S. told Aviles of Strickland’s “not okay” touches when B. S. was around seven years old and in the first grade. At that point, Aviles ended the interview. Aviles explained that the police department has “a protocol that once a child makes an outcry and we have established basic details of that, that we would set up a forensic interview with the Georgia Center [for] Child Advocacy.” Thus, Aviles’s testimony did not speak to B. S.’s credibility, but only to Aviles’s reasons for ending the interview at that time. Her testimony was “not a clear comment on [B. S.]’s credibility as to [her] allegations of molestation,” and counsel’s failure to object did not indicate deficient performance. We note that trial counsel was so effective that Strickland was acquitted on three counts of child molestation and the jury deadlocked on a fourth count, resulting in a mistrial.

Moreover, even if Aviles’s testimony that “a molestation incident occurred” did constitute improper bolstering, Strickland has failed to show a reasonable probability that the testimony at issue so prejudiced his defense as to affect the outcome of the trial. B. S.’s account of the incident remained consistent throughout, beginning with her first outcry to the police, her interview with Aviles, her interview with the psychologist, her outcry to her grandmother, and her testimony at trial; and Strickland had full opportunity to test B. S.’s credibility during cross-examination. Moreover, C. S., K. J., and C. M. all testified to similar incidents. It was not error to deny Strickland’s motion for new trial on this ground.

(b) Strickland contends that his trial counsel rendered ineffective assistance in failing to object when the prosecutor stated in closing, “what those girls said on the stand, it had the ring of truth.” Although “[i]t is improper for counsel to state to the jury counsel’s personal belief as to the veracity of a witness[,] it is not improper for counsel to urge the jury to draw such a conclusion from the evidence.” When the prosecutor’s statement is judged in the context in which it was made, it is clear that he was urging the jury to draw conclusions from evidence in the case — the testimony of the three girls, B. S., C. S., and K. J. Strickland’s counsel argued in closing that the three girls were following C. S. in fabricating their accusations against Strickland. In response, the prosecutor pointed out that if the three complaining witnesses had been conspiring together to make up accusations against Strickland, they would have made up stories which were more consistent and more shocking. The comments of which Strickland complains were permissible “since they are the conclusion the prosecutor wished the jury to draw from the evidence, and not a statement of the prosecutor’s personal belief as to the veracity of a witness.” Thus, counsel’s failure to object to these comments during closing argument did not constitute deficient performance. The trial court did not err in denying Strickland’s motion for new trial on this ground.

Decided August 16, 2011.

Long D. Vo, for appellant.

Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

         Al-Amin v. State, 278 Ga. 74 (1) (597 SE2d 332) (2004).

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

       (Footnote omitted.) Jackson v. State, 282 Ga. 494, 497 (2) (651 SE2d 702) (2007).

       (Citation omitted.) Browning v. State, 283 Ga. 528, 529 (2) (661 SE2d 552) (2008).

       (Footnotes omitted.) Brown v. State, 309 Ga. App. 511, 517-518 (4) (710 SE2d 674) (2011).

       (Citation and punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

       (Citation and punctuation omitted.) Carrie v. State, 298 Ga. App. 55, 63-64 (7) (679 SE2d 30) (2009).

        Branesky v. State, 262 Ga. App. 33, 36 (3) (a) (584 SE2d 669) (2003).

       Id.

       See Carrie, supra at 64 (7); Gosnell v. State, 247 Ga. App. 508, 512 (3) (544 SE2d 477) (2001).

       See Carrie, supra.

       (Citation and punctuation omitted.) Adams v. State, 283 Ga. 298, 302 (3) (e) (658 SE2d 627) (2008).

       Id.

       (Citations omitted.) Mason v. State, 274 Ga. 79, 80 (2) (b) (548 SE2d 298) (2001) (prosecutor’s argument that witness is “telling you the honest truth” was not improper) (id. at 80 (2), n. 2). Compare Collier v. State, 266 Ga. App. 345, 356-357 (3) (b) (596 SE2d 795) (2004) (prosecutor’s comment that witness’s testimony “sounds just like the truth to me. It’s got the ring of truth to it” was improper statement of his personal belief as to witness’s veracity) (emphasis supplied).

       See id.; accord Adams, supra.


text:
    A11A1151.
    BROWN v. THE STATE.
    (715 SE2d 802)
   MlKELL, Judge.

Kenneth Brown, convicted by a Morgan County jury of possession of cocaine with intent to distribute, appeals from the trial court’s denial of his motion for new trial. Brown contends that his trial counsel rendered ineffective assistance of counsel in not filing a timely motion to suppress evidence seized from Brown’s vehicle Finding no harmful error, we affirm.

Viewed in the light most favorable to the verdict, the evidence showed that Brown was driving on Interstate 20 when Trooper Ray Malone with the Georgia State Patrol observed him committing the traffic offense of following too closely. Malone also noted that Brown was not wearing a seat belt and that the tag on his car had expired. Malone initiated a traffic stop. Brown was asked to produce his driver’s license, insurance information and registration, but was only able to produce his driver’s license. Malone ultimately had to find the missing information on the state insurance database.

As Malone spoke with Brown through the open passenger window of the car during the traffic stop, he smelled what he recognized, based on his training and experience, to be the odor of burnt marijuana from inside the car. Malone also noticed what looked to be remnants of marijuana in the floorboards, “like if somebody may have been rolling marijuana cigarettes.” Brown mentioned that he had been to the Atlanta area to visit some friends for a few days and was headed back home to South Carolina. However, Brown was unable to provide details about where he had stayed, and Malone noticed that the car did not contain any visible luggage or evidence of a trip.

Malone asked Brown to step out of the car. As he was writing the traffic citation, he noticed Brown becoming increasingly agitated. Based on the odor of marijuana and Brown’s behavior, Malone called for backup assistance which arrived a few minutes later. The troopers confronted Brown about the marijuana odor, and Brown indicated that he had not smoked any marijuana, but some of his friends might have smoked it in his car the day before. The trooper asked Brown if he had any other drugs in the car, and Brown said he did not.

Based on the odor of marijuana in the car, Malone searched the car. In the passenger compartment, he located more remnants of suspected marijuana. In the trunk of the car, he found a plastic bag containing 1.976 kilos of cocaine with a purity of 70.4 percent.

After the cocaine was discovered, Brown admitted to knowing the cocaine was in the trunk and told officers that he had been forced to drive the cocaine from Atlanta to South Carolina. At this point, the law enforcement officers advised Brown of his Miranda rights.

Brown’s counsel filed a preliminary motion to suppress on August 8, 2007, but did not file an amended motion to suppress until April 6, 2009. Brown’s counsel requested that the amended motion to suppress be heard on May 5, 2009, after the jury had been impaneled in the case, but the trial court ruled that the motion had been waived because it was filed so late. Appellate counsel filed an amended motion for new trial based, in part, on an ineffective assistance of counsel claim, which was denied.

1. Although Brown does not challenge the sufficiency of the evidence on appeal, we conclude that the evidence adduced at trial was sufficient under the standard set forth in Jackson v. Virginia, to authorize the jury to find him guilty of possession of cocaine with intent to distribute.

2. Brown contends that his trial counsel rendered ineffective assistance of counsel by failing to file the amended motion to suppress in a timely manner. We disagree.

To prevail on a claim of ineffective assistance of counsel, Brown must show (1) that counsel’s performance was deficient and (2) that defendant was prejudiced by the deficient performance, i.e., that there was a reasonable probability that the trial would have turned out differently but for counsel’s deficient performance. This court need not address both components if the defendant has made an insufficient showing on one of them. On appellate review, “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” Further, “we will not reverse on the basis of ineffective assistance of counsel unless trial counsel’s conduct so undermined the proper functioning of the adversarial process that the trial could not reliably have produced a just result.”

Pretermitting whether trial counsel was deficient in failing to timely file an amended motion to suppress, Brown has failed to establish that such failure has prejudiced his case. Brown contends that the officer exceeded the scope of the authorized probable cause search by searching the trunk of his car in addition to the passenger compartment, and the cocaine should have been suppressed as the fruit of an illegal seizure. To establish ineffective assistance of counsel on the basis of counsel’s failure to file a timely motion to suppress, Brown must make a strong showing that had the motion been considered, the damaging evidence would have been suppressed. As shown below, Brown has failed to meet this burden.

Although the general rule under the Fourth Amendment to the United States Constitution is that police officers must secure a warrant prior to conducting a search, there is an exception to that requirement for the searches of automobiles. “The automobile exception provides that a police officer may search a car without a warrant if he has probable cause to believe the car contains contraband, even if there is no exigency preventing the officer from getting a search warrant.” An officer has probable cause to search an automobile when

the facts and circumstances before the officer are such as would lead a reasonably discreet and prudent man to believe that the contents of the vehicle offend the law. Probable cause need not be defined in relation to any one particular element, but may exist because of the totality of circumstances surrounding a transaction.

Decided August 16, 2011.

Edgar A. Callaway, Jr., for appellant.

FredricD. Bright, District Attorney, Alison T. Burleson, Assistant District Attorney, for appellee.

Further, the automobile exception allows the entire vehicle to be searched, “including all containers and packages that may contain such contraband.”

In the case sub judice, the objective facts known to Malone after he lawfully stopped the car gave him probable cause to believe that the car contained contraband. These facts included the smell of marijuana in the car, the flakes of what Malone suspected to be marijuana on the floorboards of the car and Brown’s visible agitation during the traffic stop. The warrantless search of the vehicle was therefore lawful under the automobile exception to the warrant requirement.

Brown has not shown a reasonable likelihood that the trial court would have granted the motion to suppress, even if it had been timely filed. Therefore, Brown has not carried his burden of showing that he was prejudiced by his attorney’s failure to timely file the motion, and his claim of ineffective assistance of counsel must fail.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

       Brown was indicted on one count each of possession of cocaine with intent to distribute and trafficking in cocaine. The jury convicted him of possession of cocaine with intent to distribute and found him not guilty of trafficking in cocaine.

        Al-Amin v. State, 278 Ga. 74 (1) (597 SE2d 332) (2004).

       Counsel explained that he waited so long to file an amended motion to suppress because the case had been delayed with the state’s consent as Brown attempted to cooperate with law enforcement in South Carolina in exchange for a reduction of his charges in this case and that he believed the case would be accepted for federal prosecution. Trial counsel also explained that he attempted to schedule the motion to suppress hearing earlier, but was unable to reach Brown despite repeated attempts to contact him.

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

        Welbon v. State, 278 Ga. 312, 313 (2) (602 SE2d 610) (2004).

        Delgiudice v. State, 308 Ga. App. 397, 401 (3) (707 SE2d 603) (2011). Accord Brown v. State, 275 Ga. App. 281, 289 (5) (620 SE2d 394) (2005).

       (Citations and punctuation omitted.) Bridges v. State, 286 Ga. 535, 537 (1) (690 SE2d 136) (2010).

       (Punctuation and footnote omitted.) Nichols v. State, 288 Ga. App. 118, 121 (3) (653 SE2d 300) (2007).

        Duitsman v. State, 217 Ga. App. 435, 437 (2) (457 SE2d 702) (1995). Accord Boykins-White v. State, 305 Ga. App. 827, 831 (4) (701 SE2d 221) (2010).

        Maryland v. Dyson, 527 U. S. 465, 466-467 (119 SC 2013, 144 LE2d 442) (1999).

       (Citation and punctuation omitted.) Martinez v. State, 303 Ga. App. 166, 170 (2) (692 SE2d 766) (2010).

       (Citation omitted.) Id. at 170-171 (2).

       (Citation and footnote omitted.) Autry v. State, 277 Ga. App. 305, 308 (626 SE2d 528) (2006).

       See Fernandez v. State, 275 Ga. App. 151, 159-160 (3) (b) (iii) (619 SE2d 821) (2005) (deputy had probable cause to search car after initiating traffic stop for failure to wear seat belt where driver and passenger were very nervous and gave conflicting stories, driver would not identify car’s owner and the car reeked of air fresheners); see also Higdon v. State, 261 Ga. App. 729, 733 (a) (583 SE2d 556) (2003) (“[A] police officer may draw inferences based on his own experience in deciding whether probable cause exists”) (footnote omitted).

        Benton v. State, 240 Ga. App. 243, 245 (2) (522 SE2d 726) (1999) (automobile exception does not require exigent circumstances).