text:
    A11A0233.
    In the Interest of R. B., a Child.
    (710 SE2d 611)
   Ellington, Chief Judge.

The mother of 15-month-old R. B. appeals from an order of the Juvenile Court of Cobb County that found R. B. to be deprived and that approved a request from the Department of Family and Children Services (“DFCS”) to establish a nonreunification case plan. On appeal, the mother contends that there was insufficient clear and convincing evidence presented during the adjudication hearing to prove that R. B. was a deprived child and that she was the cause of such deprivation. She also contends that the evidence was insufficient to prove that Cobb County was the proper venue for bringing the deprivation action. Finding these contentions to be without merit, we affirm.

1. In contending that there was insufficient evidence to support a finding that, at the time of the June 2010 adjudication hearing, R. B. was a deprived child, the mother asserts that the juvenile court improperly relied solely upon evidence that her parental rights to her four older children had been terminated in 2008. As explained below, however, the record shows that, while the court took into consideration the previous termination of her parental rights in determining whether R. B. was deprived, the court also heard substantial evidence showing that the mother’s mental, emotional and financial conditions had not changed significantly since 2008 and that, despite the assistance of DFCS and the loss of her four children, the mother still lacked the necessary skills, judgment and resources to properly care for R. B.

OCGA § 15-11-2 (8) (A) defines a “deprived child” as, inter alia, “a child who ... [i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals[.]” “The deprivation must be shown to have resulted from unfitness on the part of the parent, that is, either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child.” (Citation and punctuation omitted.) In the Interest of R. M., 276 Ga. App. 707, 715 (624 SE2d 182) (2005). See also In the Interest of A. R., 287 Ga. App. 334, 335-336 (651 SE2d 467) (2007) (accord). In determining whether a parent is unfit, “[a] juvenile court may consider a [parent’s] inability to properly care for one child as evidence that she will not be able to care for her other children.” (Citation omitted.) In the Interest of A. R., 287 Ga. App. at 336. See also OCGA § 15-11-94 (b) (4) (B) (v) (“In determining whether the child is without proper parental care and control, the [juvenile] court shall consider, without being limited to, [evidence of] . . . [p]hysical, mental, or emotional neglect of the child or evidence of past physical, mental, or emotional neglect of the child or of another child by the parent[.]”).

When a child has been removed from parental custody, as in this case, DFCS “may prove current deprivation by showing that, if the [child was] returned to the parent [ ] at the time of the hearing, [he] would be deprived.” (Citation, punctuation and footnote omitted; emphasis supplied.) In the Interest of T. V., 302 Ga. App. 124, 127 (1) (690 SE2d 457) (2010). See also In the Interest of C. H., 305 Ga. App. 549, 559 (2) (b) (700 SE2d 203) (2010) (“the question is whether, if returned to the parent as of the date of the hearing, the child would return to a state of deprivation because of the parent’s lack of proper parental care or control”) (citation and punctuation omitted; emphasis in original). Thus, when it is established that a parent has previously deprived, neglected, or abused one or more of his or her children and that the detrimental conditions existing at that time have not significantly changed, a juvenile court is under no obligation to return a child to the parent and wait until the child is harmed in order to find that there is evidence of that child’s current deprivation. In the Interest of A. R., 287 Ga. App. at 336; see OCGA § 15-11-94 (b) (4) (B) (v); In the Interest of Z. H. T., 302 Ga. App. 424, 429 (1) (a) (691 SE2d 292) (2010) (Current deprivation “may be established by showing that the conditions upon which an earlier finding of deprivation was based still exist[.]”).

Ultimately, when this Court reviews a juvenile court’s finding that a child is deprived,

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

(Citation and punctuation omitted.) In the Interest of R. M., 276 Ga. App. at 707-708. So viewed, the record shows the following facts.

At the time of the adjudication hearing at issue in this case, the mother was 30 years old and had never been married. She had a ninth grade education, had an IQ that indicated “borderline intellectual functioning,” had only worked at low-wage, unskilled jobs for short terms a few times over several years, and had been receiving monthly disability payments and food stamps for several years. Between 1999 and 2007, she gave birth to four children as a result of relationships with three men, none of whom legitimated or financially supported their children. Beginning in 2004, the children were repeatedly removed from the mother’s custody based upon evidence that the mother and/or other adults present in her home physically abused and neglected the children and that the conditions of the family’s home presented health and safety hazards to the children. This evidence showed, among other things, that the mother had hit one of her children in the face with a knife, cutting her; that the mother slapped, punched and violently grabbed two of the children; that the mother neglected the children’s hygiene; that the mother improperly shook one of the children when he was two days old; that the mother had wrapped the same infant in a manner that could have interrupted his breathing; and that the mother had used illegal drugs. This evidence of physical abuse and neglect, combined with evidence that the mother failed to make any significant progress on court-ordered reunification plans and that, as the only legal parent of the children, she lacked the necessary skills, judgment, and resources to provide proper parental care to the children, convinced the Juvenile Court of Cobb County to terminate her parental rights to the children in August 2008.

At some point in 2009, the mother began cohabitating with a man (hereinafter, the “putative father”), and, on December 24, 2009, she gave birth to a boy, R. B., the child at issue in this case. DFCS filed an emergency petition for temporary custody of R. B. based upon the facts recounted above, and the court granted the petition on December 28, 2009.

On June 3, 2010, the juvenile court conducted an adjudication hearing on the deprivation and nonreunification petition filed by DFCS. DFCS presented the expert testimony of a licensed clinical psychologist, who testified that she had met with the mother on February 4, 2010, and had conducted a psychological evaluation and an assessment of parental fitness. According to the psychologist, the mother reported that she had a history of sexual abuse and domestic violence, that she had a limited support system, that she had “employment issues,” and that she had had her parental rights to other children terminated. The mother had a full scale IQ score of 72, which indicates that she has borderline intellectual functioning. As for the mother’s ability to effectively interact with her environment, the psychologist found that the mother scored about 50, on a scale of zero to 90, on the day of her assessment. According to the psychologist, the mother had difficulty communicating what she wanted to say and sometimes did not make sense and, when the psychologist tried to get clarification, the mother would say that the psychologist just did not understand. During her testimony, the psychologist expressed concern as to whether the mother would be able to communicate her child’s needs to others, such as the child’s physicians and teachers.

Although the mother had taken parenting classes, the psychologist opined that the mother would have difficulty applying what she had learned to actual situations with a child. The psychologist testified that, when she questioned the mother about the appropriate way to respond or react in different parenting scenarios, the mother repeatedly indicated that she would question the child — regardless of the child’s age — as if she was looking for direction on how she should react. In fact, even when presented with scenarios involving a serious injury to the child or circumstances suggesting the child was emotionally troubled, the mother never indicated that she would take the child to a doctor or a counselor or seek assistance from an outside agency.

Finally, the psychologist testified that the mother gave “unrealistically positive” answers to an objective questionnaire, presenting herself as an unrealistically good and faultless person. While the psychologist was unsure whether the mother had purposefully lied to make herself “look good,” she opined that the answers reflected the mother’s lack of insight into her situation and her personal limitations. According to the psychologist, the mother appeared to believe that her other children had been taken away and her rights terminated through no fault of her own but, instead, because of the actions of other people. In fact, the mother was unable to show that she had a clear understanding of why her other children had been removed from her care, which concerned the psychologist because, if the mother did not know what she did wrong before, there was a greater chance that she would repeat it.

Based upon her evaluation of the mother, the psychologist opined that, even with parenting and anger management classes, the mother’s lack of cognitive capacity, communication skills, and cognitive flexibility rendered her incapable of ever learning the skills necessary to properly care for R. B.

The mother and the putative father of R. B. also testified during the adjudication hearing. The putative father testified that he had lived with the mother for approximately a year and that, during that time, the mother had punched him and had repeatedly yelled at him in the presence of his six-year-old son. He also testified that, a few days before the hearing, he discovered that the mother was in a relationship with another man, so he ended his relationship with her and moved out of their home. Moreover, the putative father expressed doubts about whether he was, in fact, R. B.’s biological father, and he admitted that he had not paid any financial support for or attempted to legitimate R. B. prior to the adjudication hearing.

In response to the putative father’s allegations, the mother explicitly denied having sexual relations with another man around the time she conceived R. B., and she insisted that the putative father was lying and that she was “99.9 percent” certain that he was R. B.’s biological father. As for why she was receiving monthly disability benefit payments, the mother was unable to offer an explanation, testifying only that her grandmother had “signed [her] up” for them when she was young. When questioned about whether her monthly income of $674 in disability payments and $154 in food stamps was sufficient to meet her expenses, the mother expressed confidence that she would be able to pay her expenses without moving or getting a roommate, noting that she hoped she would earn her GED and possibly get a job in the future so that she would no longer need the disability benefits. The mother also stressed that she just wanted to “live my life,” “be happy,” and “raise my babies” without “people saying stuff about me and calling me names.” However, when asked what had changed in her life since her rights to her other four children had been terminated in 2008, the mother responded that she no longer lived with her mother and that she was now “on my own,” even though she still had no job. Although little had changed in the past two years, the mother insisted that she loved R. B., that she needed to be with him, and that he needed to be with her, thereby suggesting that this was enough to justify his return to her custody. The court then asked her directly if she could tell him why she had lost her rights to her older four children; the mother simply responded that she did not know.

After hearing all of the evidence, the court found that R. B. was currently deprived due to the mother’s inability to be an effective parent. Consequently, the court granted DFCS’s deprivation petition and its motion to establish a case plan of nonreunification.

In arguing that the evidence was insufficient to support the juvenile court’s conclusions, the mother argues that, other than the fact that her rights to her four older children had been terminated, there was no other evidence to show that R. B. would be deprived if returned to her custody. As shown above, however, the record does not support her argument. Further, the mother essentially asks this Court to override the juvenile court’s decision by re-weighing the evidence presented and re-evaluating the credibility of the witnesses, which we will not do. In the Interest of R. J. D. B., 305 Ga. App. 888, 894 (1) (a) (700 SE2d 898) (2010). As for the mother’s claims that she has taken classes to improve her parenting skills and that she is pursuing her GED in an effort to improve her financial situation, it is for the juvenile court, not this Court, to decide what weight to give to these promised improvements. Id.

[J]udging the credibility of [the mother’s] good intentions was a task for the juvenile court. Moreover, the juvenile court was authorized to consider the mother’s past conduct in determining whether the causes of deprivation were likely to continue. And the decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.

(Punctuation and footnotes omitted.) Id. See also In the Interest of T. V., 302 Ga. App. at 127 (1) (“Lack of stable housing and lack of support due to a parent’s unstable or irregular employment are appropriate factors in determining deprivation. ... In determining whether the parent’s current situation is stable, the juvenile court may consider the parent’s past conduct and decide, what weight, if any, is to be given to recent improvements in the parent’s housing and employment circumstance.”) (citations, punctuation and footnote omitted); In the Interest of D. D. B., 282 Ga. App. 416, 418-419 (1) (638 SE2d 843) (2006) (accord).

Accordingly, we conclude that there was sufficient clear and convincing evidence presented to authorize the juvenile court to find that R. B. was currently deprived and that the deprivation was likely to continue, and, consequently, that reunification of R. B. with his mother would be detrimental to the child and was not in his best interest. In the Interest of A. R., 287 Ga. App. at 336; In the Interest of R. M., 276 Ga. App. at 707-708; see also OCGA § 15-11-58 (a) (4) (C) (reunification efforts are not required when the parent’s rights to a sibling of the child have been terminated involuntarily); In the Interest of C. P., 291 Ga. App. 699, 699-700 (1) (662 SE2d 802) (2008) (“Before terminating reunification services, a juvenile court must find by clear and convincing evidence that reasonable efforts to reunify a child with his or her family will be detrimental to the child.”) (citation and punctuation omitted).

Decided April 22, 2011.

Jamie L. Smith, for appellant.

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Penny Hannah, Assistant Attorney General, Sanders B. Deen, for appellee.

2. The mother contends that the State failed to present sufficient evidence to prove that Cobb County was the proper venue for the adjudication proceeding. We disagree.

OCGA § 15-11-29 (a) provides that a juvenile proceeding “may be commenced in the county in which the child resides,” or “[i]f deprivation is alleged, the proceeding may be brought in the county in which the child is present when it is commenced.” Moreover, as to venue, it may be presumed as a matter of law, subject to rebuttal, that a child placed in the custody of a county department of family and children services thereafter assumes the residence of that county department.

(Punctuation and footnote omitted.) In the Interest of R. J. D. B., 305 Ga. App. at 896-897 (2).

The undisputed evidence in the record reveals that the mother was residing in Cobb County when R. B. was born and when the underlying proceeding alleging deprivation commenced, and that R. B. remained in the custody of Cobb County DFCS through the time the juvenile court entered its deprivation and nonreunification order. Accordingly, the requirements for proving that venue was properly in Cobb County were met. In the Interest of R. J. D. B., 305 Ga. App. at 897 (2). There was no error.

Judgment affirmed.

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

       This Court affirmed the termination order on December 4, 2009.

       DNA testing conducted shortly after the adjudication hearing revealed that the putative father was not, in fact, R. B.’s biological father. Consequently, he withdrew his petition to legitimate R. B., which he had filed immediately after the hearing, and he is no longer a party to any proceedings involving R. B.


source: Caselaw Access Project

author: Ellington, Chief Judge.

license: Public Domain

text:
    A11A0540.
    WILLIS v. THE STATE.
    (710 SE2d 616)
   Ellington, Chief Judge.

A Fulton County jury found Dexter Willis guilty beyond a reasonable doubt of three counts of armed robbery, OCGA § 16-8-41 (a). Following the denial of his motion for a new trial, Willis appeals, contending that the evidence was insufficient and that the trial court erred in denying his motion to sever the offenses, in denying his motion to exclude the victims’ identification, in admitting testimony about a handgun, in denying his motion for a mistrial based on prosecutorial misconduct, in instructing the jury, in imposing a sentence of life imprisonment without parole, and in denying his motion for a new trial based on ineffective assistance of counsel. For the reasons explained below, we affirm.

1. Willis contends that the evidence was insufficient. On appeal from a criminal conviction, the appellate court

view[s] the evidence in the light most favorable to the verdict[,] and an appellant no longer enjoys the presumption of innocence. [The appellate 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 State’s case, [the appellate court] must uphold the jury’s verdict.

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

Viewed in the light most favorable to the verdict, the evidence shows that, on three separate occasions within a three-week period, Willis used a revolver to rob a solitary pedestrian during daylight hours, all in the same part of the city.

On the morning of July 3, 2002, the first victim was standing alone at a bus stop near the Maple Creek Apartments on Bolton Road when a man approached him, put a .38 caliber revolver to his head and told him to throw his money on the ground. The victim saw that there were bullets in the cylinder of the robber’s handgun. After taking the victim’s money, the robber told the victim to walk away and then fled on foot. On July 9, 2002, the victim looked through two books of mug shots, saw a photograph of Willis in the second book, and identified him as the robber.

On the morning of July 14, 2002, the second victim was walking toward a bus stop on Childress Drive at Landrum Drive when a man approached her, pointed a black revolver at her, and demanded her purse and jewelry. After taking her property, the robber fled on foot. Three weeks after being robbed, the victim identified Willis as the robber in a six-person photo array.

At about 6:30 p.m. on July 25, 2002, when it was still daylight, the third victim was walking alone on Venetian Road near Cascade Road when a man approached her, put a black revolver in her face, and told her to drop her purse and all of her money on the ground. He picked up her purse, which contained her cell phone, told her to leave in one direction, and then fled on foot in the opposite direction. Three days after being robbed, the victim identified Willis as the robber in a photo array.

On July 26, 2002, the first victim saw Willis, whom he recognized as the man who robbed him, walking in the same neighborhood as the robbery and then leaving the area in a black Chevrolet Blazer. The victim called the police and, as he stood talking to a police officer about his report, Willis drove past them in the Blazer, and the victim pointed out the vehicle to the officer. Officers stopped the Blazer a short distance away. In conducting a pat-down for officer safety, an officer found a 9mm handgun in Willis’s waistband. Officers then took Willis to where the victim was waiting, and the victim identified Willis as the robber. After arresting Willis, officers inventoried the contents of the vehicle and found a loaded .38 caliber revolver and a cell phone. An officer determined that the cell phone belonged to the third victim.

At trial, each of the victims identified Willis as the man who robbed them.

The evidence was sufficient for the jury to find Willis guilty beyond a reasonable doubt of using a handgun to rob each of the victims. McLester v. State, 249 Ga. App. 71, 75 (3) (a) (547 SE2d 709) (2001).

2. Willis contends that the trial court erred in denying his motion to sever the offenses. Willis argues that the failure to sever the offenses prejudiced him because it allowed the jury to use his possession of the third victim’s cell phone as evidence that he was the person who robbed the first and second victims.

A trial court engages in a two-part inquiry when considering a motion to sever.

A trial court must first determine whether the offenses are joined solely because they are of the same or similar character. If they are, severance is mandatory. If they are not, the court must then decide whether severance would promote a just determination of guilt or innocence as to each offense. . . . With regard to the first inquiry, offenses have not been joined solely because they are of the same or similar character when evidence of one offense can be admitted upon the trial of another, i.e., when they are so strikingly similar as to evidence a common motive, plan, scheme or bent of mind. Thus, severance is within the trial court’s discretion.when the offenses are so similar as to show a common scheme or plan. Such similarity may be manifest by close connections between the time, location, and modus operandi of the offenses. . . . With regard to the second inquiry, the trial court considers whether, in light of the number of offenses charged and the complexity of the evidence, the fact-trier will be able to distinguish the evidence and apply the law intelligently to each offense.

(Citations, punctuation and footnotes omitted.) Fielding v. State, 299 Ga. App. 341, 342-343 (1) (682 SE2d 675) (2009). In such a case, we review the trial court’s determination for abuse of discretion. Gadson v. State, 223 Ga. App. 342, 344 (3) (477 SE2d 598) (1996).

As set forth above, the three robberies in this case took place in a limited geographical area within four weeks of each other. Each involved a man approaching a lone pedestrian during the daytime, pointing a revolver at the victim, and demanding that the victim throw his or her money and property on the ground, and then fleeing on foot. The modus operandi of the robberies was strikingly similar, allowing the trial court the discretion to deny the motion to sever. As the trial court observed, the evidence was far from complex and posed no significant risk of jury confusion. Therefore, the trial court did not abuse its discretion in denying Willis’s motion to sever. Dickerson v. State, 304 Ga. App. 762, 765 (1) (697 SE2d 874) (2010); Fielding v. State, 299 Ga. App. at 343 (1).

3. Willis contends that the trial court erred in denying his motion to exclude the in-court identification by each of the victims as being tainted by unduly suggestive pretrial identifications.

(a) A conviction based on eyewitness identification at trial following a pretrial identification will be set aside only if the pretrial identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Waddell v. State, 277 Ga. App. 772, 777 (4) (627 SE2d 840) (2006); Selbo v. State, 186 Ga. App. 779, 781 (368 SE2d 548) (1988). Even if a pretrial identification is tainted by an impermissibly suggestive identification procedure, a subsequent in-court identification is admissible if it does not depend upon the prior identification but has an independent origin. Doublette v. State, 278 Ga. App. 746, 749 (1) (629 SE2d 602) (2006); Selbo v. State, 186 Ga. App. at 781. Here, the record shows that each of the victims’ identification of Willis had such an independent origin. Each of the victims observed Willis face to face in full daylight and identified his photograph within days of being robbed. In addition, the first victim identified Willis as he drove by in a car. Accordingly, the trial court did not err by denying Willis’s motion to exclude the identification testimony. Doublette v. State, 278 Ga. App. at 749 (1); Selbo v. State, 186 Ga. App. at 781.

(b) In addition, to the extent Willis contends that the officers lacked a legally sufficient basis to stop his vehicle and, therefore, that the first victim’s pretrial and in-court identification were the products of a violation of his rights under the Fourth Amendment, the record shows that the officers had facts sufficient to stop Willis after the victim literally pointed out Willis to an officer as the person who robbed him. Grabowski v. State, 234 Ga. App. 222, 225 (4) (507 SE2d 472) (1998). Accordingly, this argument lacks merit.

4. Willis contends that the trial court erred in overruling his objection to an officer’s testimony that he and another officer recovered a 9mm handgun from Willis when they arrested him. Willis contends that the State offered perjured testimony about the weapon, either at a pretrial hearing on his motion to suppress or at trial, because one officer testified at the hearing that he patted down Willis and found the gun, while a different officer testified at trial that he patted down Willis. Our review of the record suggests that there is no basis for concluding that either officer committed perjury. Rather, it appears that the memory of one of the officers may have faded as to this detail during the two years that elapsed between Willis’s arrest and trial. Although the discrepancy may have given Willis the opportunity to impeach the credibility of the officer who testified at trial by disproving a fact to which he testified (that is, that he performed the pat down), which Willis did not opt to do, the fact that his recollection of the events differed from the other officer’s pretrial testimony did not render his testimony about the gun inadmissible. Rather, the matter was one of credibility for the jury to resolve. We find no error.

5. Willis contends that there were several instances of prosecu-torial misconduct that resulted in reversible error.

During cross-examination, the prosecutor attempted to challenge Willis’s alibi by showing that he could not identify the highways and roads he traversed in the course of an errand he claimed to be running at the time of one of the robberies. The prosecutor asked Willis if, after he passed South DeKalb Mall, he took the highway entrance ramp on the right. When Willis replied, “yes,” the prosecutor said, “Okay. That’s [I-J285. Now we’re getting somewhere.” Willis’s counsel objected that the prosecutor was testifying, and the prosecutor withdrew the question and rephrased it. The prosecutor asked Willis to identify the restaurants that are near a particular entrance to South DeKalb Mall. When he responded that he thought there was a Checkers, a Taco Bell, and a McDonald’s, the prosecutor asked, “if I were to tell you, Mr. Willis, that I lived out there, and the only thing there is a QuikTrip and a Church’s, would that surprise you?” Willis’s counsel again objected to the prosecutor’s testifying, and the trial court overruled the objection but instructed the prosecutor to “move on.” The prosecutor again contradicted Willis’s responses on a similar question, asking, “Would it surprise you to learn there’s only a Home Depot and a Mrs. Winner’s in that direction?” The trial court spontaneously disallowed the question. Willis’s counsel did not move for a mistrial or ask for curative instructions, nor did she object during the State’s closing argument, when the prosecutor attacked Willis’s credibility by referring to his inability to answer questions about his route.

Certainly, the prosecutor should not have been injecting facts that were not in evidence, but “prosecutorial misconduct is a serious charge, and[,] once appellant raises a charge of prosecutorial misconduct, he has the duty to prove it by the record and by legal authority.” (Citation and punctuation omitted.) Colley v. State, 225 Ga. App. 198, 201 (3) (483 SE2d 355) (1997). Willis identified only one allegedly improper statement by the prosecutor where the trial court overruled Willis’s objection or refused to take requested corrective action. Willis does not cite to any legal authority for his claim that that question rises to the level of prosecutorial misconduct sufficient to warrant a new trial. As to all of the remaining questions or statements Willis now identifies as amounting to reversible error, the record shows that Willis either failed to object or had an objection sustained. Therefore, there is no ruling by the trial court that is adverse to Willis for this Court to review. It is axiomatic that “this is a court for [the] correction of errors of law committed by the trial court where proper exception is taken[.]” (Citation and punctuation omitted.) Id. Therefore, we will not reverse a conviction based on alleged prosecutorial misconduct where the defendant did not take proper exception or where the defendant received a favorable ruling on any objection or requested corrective action.

6. Willis contends that the trial court erred in giving the pattern jury instruction regarding recent possession of stolen property. Specifically, Willis contends that, because the State never asked the third victim to identify the cell phone as the one that was stolen from her, there was no evidence that he possessed stolen property and, therefore, that the instruction was not adjusted to the evidence. This is incorrect. There was evidence from which the jury could find that the cell phone belonged to the third victim, as recounted in Division 1, supra.

7. Willis contends that the trial court erred in failing to instruct the jury that it had to make an individual determination of guilt on each separate offense involving a different victim. Willis fails to show, however, that he requested such an instruction. With certain exceptions, it is not error for a trial court to fail to give a jury instruction absent a written request. Colbert v. State, 263 Ga. App. 193, 194 (2) (587 SE2d 300) (2003).

8. Willis contends that the trial court erred in imposing a sentence of life imprisonment without parole because the court relied on a previous conviction where he was not represented by counsel. The record shows that Willis first raised this issue regarding his conviction, in DeKalb County Case No. 93-CR-2382, of possession of a firearm by a convicted felon in his motion for a new trial. In response, the State offered evidence that that case was tried before a jury, that Willis exercised his constitutional right to represent himself, and that appointed standby counsel was available to assist him at trial. Because the record does not support Willis’s assertion that the conviction was obtained in violation of his constitutional right to counsel, this argument lacks merit.

9. Willis contends that he received ineffective assistance of counsel in several respects and, therefore, that the trial court erred in denying his motion for a new trial.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)[.] The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct. [As the appellate court, we] accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003). In analyzing the prejudice element, “[t]he question is whether there is a reasonable probability that, absent [counsel’s] errors, the factfinder would have had a reasonable doubt respecting guilt.” (Citation and punctuation omitted.) Miller v. State, 285 Ga. 285, 286 (676 SE2d 173) (2009).

(a) Willis contends that his counsel’s request for the pattern jury instruction that included a witness’s degree of certainty as a factor the jury could consider in assessing the reliability of a witness’s identification testimony, which the trial court gave, constituted deficient performance, and that he was prejudiced by counsel’s error. In 2005, a year after Willis’s trial, the Supreme Court of Georgia ruled that giving the “level of certainty” pattern instruction constituted reversible error when the only evidence linking the defendant to the crime was eyewitness testimony. Brodes v. State, 279 Ga. 435, 442-443 (614 SE2d 766) (2005). Pretermitting whether counsel’s failure to anticipate the Brodes v. State ruling constituted deficient performance, we conclude that Willis failed to show that he was prejudiced by the request, given the other evidence linking him to the crimes, including his possession of the third victim’s cell phone and a revolver matching the description of the one used in all three robberies. Fagan v. State, 283 Ga. App. 784, 788 (2) (643 SE2d 268) (2007).

(b) Willis contends that the prosecutor commented at trial on his exercise of his right to remain silent by asking him on cross-examination: “[On July 26, 2002, you knew you were going to be charged with some crimes] and[,] at that time, right after all this happened, you didn’t collect information or write down information that would back up this [alibi] story you’re telling in court today for the first time?” In order for remarks to constitute an impermissible comment on the defendant’s silence, “there must be a finding that the prosecutor’s manifest intent was to comment on [the defendant’s] failure to testify or that the jury would naturally and necessarily understand the remarks as a comment on [the defendant’s] silence.” (Citation and punctuation omitted.) Rosser v. State, 284 Ga. 335, 337 (4) (a) (667 SE2d 62) (2008). We conclude that the prosecutor’s question in this case did not imply that Willis should have spoken to police officers or other government agents between his arrest and the trial. And, because Willis did testify at trial, the question cannot be construed as a comment on his failure to testify at trial. Because the prosecutor’s question was unlikely to be interpreted as a comment on Willis’s silence, the failure of Willis’s trial counsel to object to this question does not constitute deficient performance. Id.

Decided April 26, 2011

Kirby Clements, Jr., for appellant.

Paul L. Howard, Jr., District Attorney, Peggy R. Katz, Assistant District Attorney, for appellee.

(c) Willis contends his trial counsel was ineffective based on her failure to object to the use of his DeKalb County conviction for recidivist punishment. Because the record does not show that the conviction was obtained in violation of his constitutional right to counsel, for the reasons discussed in Division 8, supra, counsel’s failure to object did not constitute ineffective assistance. Copeland v. State, 281 Ga. App. 11, 14 (3) (b) (635 SE2d 283) (2006) (“The failure to make a meritless objection does not amount to ineffective assistance of counsel.”) (citation omitted).

Judgment affirmed.

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

       This recitation of facts is based in part on evidence which Willis contends the trial court erroneously admitted. We have rejected Willis’s evidentiary challenges for the reasons discussed in Divisions 3 and 4, infra.

       At trial, an officer testified that he conclusively determined that the third victim owned the cell phone that was found in Willis’s possession the day after the third victim was robbed, by examining the cell phone and by calling the last number listed in the call log. In addition, the third victim testified that she had programmed her home number into her cell phone contact list and labeled it, “Home.”

       See OCGA § 24-9-82 (“A witness may be impeached by disproving the facts testified to by him [or her].”).

       See OCGA § 17-8-75 (“Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.”); Sprayberry v. State, 174 Ga. App. 574, 578 (5) (330 SE2d 731) (1985) (“[T]he introduction of facts before the jury which are not in evidence . . . requirels] the application of remedies such as mistrial or rebuke.”) (citations omitted).

       See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 2.62.30 (recent possession of stolen goods) (4th ed., updated 2010).

        Strobhert v. State, 241 Ga. App. 354, 356 (1) (526 SE2d 863) (1999) (The jury instructions in a criminal trial should be legally correct, tailored to the indictment, and adjusted to the evidence admitted in court.).

       See Tarvestad v. State, 261 Ga. 605, 606 (409 SE2d 513) (1991) (“The trial court must charge the jury on the defendant’s sole defense, even without a written request, if there is some evidence to support the charge!,]” although the trial court “need not specifically charge on an affirmative defense when the entire charge fairly presents the issues, including the defendant’s theory, to the jury.”) (citations omitted).

        Scott v. State, 250 Ga. 195, 198 (1) (d), n. 4 (297 SE2d 18) (1982) (“[A]n uncounseled felony conviction cannot be used for the enhancement of punishment under a state recidivist statute.”) (citation omitted); Blaylock v. Hopper, 233 Ga. 504, 505-506 (1) (212 SE2d 339) (1975) (accord); Tanner v. State, 230 Ga. App. 77, 79 (4) (495 SE2d 315) (1997) (Once a recidivism defendant objects to evidence of prior convictions on the basis that the defendant was not represented by counsel, the State bears the burden of establishing the validity of convictions it relies upon in arguing for recidivist treatment, and a waiver of counsel cannot be presumed from a silent record.); but see Nash v. State, 271 Ga. 281, 285 (519 SE2d 893) (1999) (If the State carries its burden of proving both the existence of prior guilty pleas to offenses the State relies on for seeking recidivist punishment and that the defendant was represented by counsel in such proceedings, “the presumption of regularity is then applied and the burden shifts to the defendant to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. ... If the defendant is able to present evidence that a constitutional infirmity exists, then the burden of proving the constitutionality of the plea shifts to the State.”) (citations omitted).

       See Merritt v. State, 222 Ga. App. 623, 623-624 (475 SE2d 684) (1996) (Although a criminal defendant has a constitutional right to be represented by counsel, a defendant also has a constitutional right to reject such assistance and to represent himself or herself. If the defendant chooses self-representation, the trial court may appoint standby counsel to assist the defendant as desired.).

       See also Swanson v. State, 282 Ga. 39, 44 (5) (644 SE2d 845) (2007) (It was highly probable that the trial court’s error in giving a “level of certainty” instruction did not contribute to the jury’s verdict where there was other significant evidence corroborating the eyewitness’s identification and where the trial court thoroughly instructed the jury about the State’s burden of proving the defendant’s identity as the perpetrator beyond a reasonable doubt and about other considerations relevant to the issue of identity.).

       Cf. Pearson v. State, 277 Ga. 813, 817 (5) (c) (596 SE2d 582) (2004) (Arguing that, if a person was legally justified in killing someone, he would tell the police his side of the story immediately and not wait until trial to claim self-defense constituted an impermissible comment on his right to remain silent.); Boivin v. State, 298 Ga. App. 411, 414-415 (3) (680 SE2d 415) (2009) (Asking a defendant whether he had shared certain information concerning his defense with law enforcement officers constituted an impermissible comment on his right to remain silent.).


author: MlKELL, Judge.

text:
    A11A0030.
    BURNETT v. THE STATE.
    (710 SE2d 624)
   MlKELL, Judge.

Andrew Burnett, pro se, appeals an order of the Superior Court of Walton County denying his pro se motion to withdraw a guilty plea. Finding no error, we affirm.

On October 9, 2007, an accusation was filed charging Burnett with two counts of speeding on November 8, 2006. On April 5, 2010, Burnett entered his guilty plea to one count of the accusation. Burnett was represented by counsel during the plea and sentencing proceedings, during which he was placed on probation for 12 months and fined $125 plus surcharges. On May 7, 2010, Burnett filed his pro se motion to withdraw guilty plea. A hearing on these two motions was held on June 28, 2010, at which Burnett did not appear. Burnett, instead, sent the court a letter stating that he waived oral argument and would not appear at the hearing, submitting his motions for resolution “on their merits and in the interests of justice.” The trial court’s order of June 29, 2010, found Burnett’s motion was not filed within the term during which he had been sentenced and, alternatively, denied the motion to withdraw his plea on the merits.

1. Burnett’s brief discusses a number of judicial proceedings dealing with a separate traffic charge against him. These matters are not the subject of the instant appeal and cannot be considered by this court. Further, Burnett makes factual assertions about these proceedings without citation to the record and transcripts before this court, in violation of Rule 25 (a) (1) of this court. Also, Burnett has attached as exhibits to his brief copies of documents purportedly from these other hearings. Pursuant to Rule 24 (g), these exhibits shall not be considered on appeal. To the extent that we can discern Burnett’s arguments regarding this appeal, we will consider them.

2. Burnett argues that the trial court misinterpreted its terms of court and should have found that his motion to withdraw was filed within the term in which he was sentenced.

Pursuant to OCGA § 15-6-3 (2) (B), the terms of court for the superior court of Walton County in the Alcovy Circuit shall com-menee on the “[f]irst and second Mondays in February, May, August, and November.” Burnett entered his plea during the February 2010 term of court. He argues that, due to the “first and second” Monday language, the February term did not end until the second Monday in May, which was May 9, 2010, making his motion to withdraw, filed May 7, 2010, timely because it was filed within the February term.

A similar argument, in the context of a motion for discharge and acquittal for failure to try an accused within two terms of court, was considered in Brooks v. State. There, this court construed similar language (i.e., “first and second Mondays in February”) regarding the commencement of terms of court of Barrow County. We concluded that such language meant that there was only one term of court in a particular month, but the court could begin its term on either of the two Mondays listed in the statute. This court based its conclusion in part on the legislative history setting up the terms of court in Barrow County.

The legislative history of Walton Superior Court also supports our conclusion that the same analysis is applicable here. In 1921, an act was passed providing that, “from and after the passage of this Act there shall be held in each year four terms of the Superior Court for the County of Walton” and that “the terms of said Court shall begin on the third Mondays in February and August, and first Mondays in May and November in each year.” Through subsequent enactments, the terms were changed to the current “first and second Mondays in February, May, August, and November.” As discussed in Brooks v. State, this language indicates that there are four terms in Walton County and the superior court is authorized to begin its terms on either of those two Mondays.

Because we are unable to determine from the record before us upon which of these two Mondays, May 3 or May 10, the May term of Walton Superior Court began, we assume, without deciding, that Burnett’s motion to withdraw his guilty plea was timely filed.

3. Burnett contends that he did not freely and voluntarily enter his plea of guilty.

Once a defendant challenges the validity of his guilty plea, the burden falls on the [s]tate to show that the defendant intelligently and voluntarily entered the plea. The query is whether the defendant freely and voluntarily entered the plea with an understanding of (i) the charges against him and (ii) the consequences of his plea. The [sjtate may meet its burden through use of the transcript of the guilty plea hearing or through use of extrinsic evidence. We will not disturb the trial court’s ruling on the question absent a manifest abuse of discretion.

During the plea hearing, the state presented the factual basis for the charge of speeding, i.e., that on November 8, 2006, Burnett was observed driving 52 miles per hour in a 35 miles per hour speed zone on Georgia Highway 20 in Loganville. Burnett was represented by an attorney during the plea hearing and Burnett acknowledged that he had reviewed the “Plea of Guilty: Acknowledgment and Waiver of Rights” form and the “Withdrawal of Plea of Not Guilty and Tender of Guilty Plea” form with his attorney and understood the forms. Each of the 27 questions on the “Plea of Guilty: Acknowledgment and Waiver of Rights” form was responded to by Burnett’s initialing his answer in the “yes” or “no” spaces. Both the district attorney and the court asked Burnett if anyone had made threats or promises to induce him to plead guilty, and he answered “no” each time. Burnett stated that he understood that the maximum sentence he could receive was 12 months confinement. Asked by the trial court if he had had sufficient time to speak with his attorney, Burnett responded “yes.” Burnett also responded affirmatively when asked if he were satisfied with his attorney’s performance.

Decided April 27, 2011.

Andrew Burnett, pro se.

As stated above, Burnett opted not to appear at the hearing on his motion to withdraw his plea. The trial court’s order reflects the court’s examination of the transcript of the plea hearing and the documents of record in making his decision on Burnett’s motion to withdraw his plea. Therefore, based on the record, we conclude that the state met its burden of showing that the defendant offered his plea knowingly, intelligently, and voluntarily, and the trial court did not abuse its discretion when it denied Burnett’s motion to withdraw his guilty plea.

4. Burnett’s enumerations 6, 7, and 8 are that the use of the dead docket violates constitutional protections; that there was unlawful assessing of fees and surcharges after sentence pronouncement; and that he was denied bail. Burnett does not point us to, nor do we discern, anywhere in the record before us where these objections were voiced in the trial court. Inasmuch as Burnett is making these objections for the first time on appeal, the objections are improper and have been waived.

Judgment affirmed.

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

W. Kendall Wynne, Jr., District Attorney, Walter C. Howard, Stephanie R. Myers, Assistant District Attorneys, for appellee.

       Count 2, an alternative charge of speeding, was nolle prossed.

       That same day, he also filed his pro se motion for speedy trial.

       See OCGA §§ 5-6-33, 5-6-34, 5-6-37.

       Part One [of the brief of appellant] shall contain a succinct and accurate statement of the proceedings below and the material facts relevant to the appeal and the citation of such parts of the record or transcript essential to a consideration of the errors complained of, and a statement of the method by which each enumeration of error was preserved for consideration.

       “Documents attached to an appellate brief, which have not been certified by the clerk of the trial court as a part of the appellate record and forwarded to this Court, shall not be considered on appeal.”

       OCGA § 17-7-170 (a).

       257 Ga. App. 515, 517-518 (571 SE2d 504) (2002).

       Id. at 518.

       Ga. L. 1921, p. 135.

       Ga. L. 1980, pp. 362-363; OCGA § 15-6-3 (2) (B).

       Supra.

       (Citations and punctuation omitted.) David v. State, 279 Ga. App. 582, 584 (631 SE2d 714) (2006).

       See Rios v. State, 281 Ga. 181, 183 (4) (637 SE2d 20) (2006); Johnson v. State, 304 Ga. App. 684, 686-687 (697 SE2d 224) (2010).

        Hightower v. State, 287 Ga. 586, 593 (8) (698 SE2d 312) (2010); Brown v. State, 300 Ga. App. 359, 362 (3) (685 SE2d 377) (2009).


text:
    A11A0052.
    WARE v. THE STATE.
    (710 SE2d 627)
   MlKELL, Judge.

After a stipulated bench trial, David Maurice Ware was convicted of possession with intent to distribute marijuana and sentenced to ten years, with one year to be served in confinement and the remainder on probation. On appeal, Ware challenges the denial of his motion to suppress, and we affirm.

In reviewing a trial court’s ruling denying a motion to suppress . . . , the following three principles apply: First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. Because there was testimonial evidence in this case, we do not apply a de novo standard of review.

So viewed, the record shows that at the hearing on the motion to suppress, which was incorporated into the record during the bench trial, Deputy Patrick Gilbert of the Newton County Sheriffs Office testified that he and another officer were dispatched to a neighborhood dispute call and upon arrival, they encountered Ware walking away from the scene. The officers twice asked Ware to come back and talk to them and Ware complied. Ware walked toward the officers with his hands in his pockets, and when the officers asked him to remove them, he said that he did not wish to do so. Gilbert further testified that he then asked Ware if he could search his person to ensure that he had no weapons on him, and Ware gave his consent; that he felt a soft, spongy lump in Ware’s pocket; and that the lump turned out to be a small, black bag containing six individually wrapped bags of what appeared to be marijuana.

During cross-examination, Gilbert was asked about his police report, in which he wrote that Ware gave him permission to check his pockets during the pat-down, and Gilbert explained that it all occurred at the same time and that he received consent to search Ware’s pocket. On re-direct, Gilbert confirmed that he conducted the pat-down for officer safety but did not search Ware’s pockets until he obtained consent to do so. There was no further testimony offered at the hearing. The trial court denied the motion to suppress, finding that the pat-down for the purpose of the officer’s safety was authorized.

On appeal, Ware argues that his detention and subsequent search were unlawful. We disagree.

There are at least three types of police-citizen encounters: verbal communications that involve no coercion or detention; brief “stops” or “seizures” that must be accompanied by a reasonable suspicion; and “arrests,” which can be supported only by probable cause. A first-tier encounter never intrudes upon any constitutionally protected interest, since the purpose of the Fourth Amendment is not to eliminate all contact between police and citizens, but simply to prevent arbitrary and oppressive police interference with the privacy and personal security of individual citizens. In accordance therewith, during such an encounter, an officer may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave. So long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required.

In the instant case, the contact between the officers and Ware was a first-tier consensual encounter.

[MJerely approaching an individual and requesting that he give his consent for a search does not constitute a seizure and need not be supported by an articulable suspicion. Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, ask to examine the individual’s identification, and request consent to search, as long as the police do not convey a message that compliance with their requests is required.

There is no evidence that the encounter involved coercion or detention.

Once Ware indicated that he did not want to remove his hands from his pockets, Gilbert asked Ware for permission to do a pat-down, and Ware gave him consent. Unlike a full search, a pat-down is conducted solely for the purpose of ensuring the officer’s safety and that of others nearby, not to obtain evidence for use at a trial. As such, it is considered “a minimal intrusion reasonably designed to discover guns, knives, clubs, or other weapons that could prove dangerous to a police officer.” Accordingly, the officer may pat down the suspect’s outer clothing, but he may “intrude beneath the surface [of the clothing], in only two instances: (1) if he comes upon something that feels like a weapon, or (2) if he feels an object whose contour or mass makes its identity as contraband immediately apparent, i.e., the ‘plain feel’ doctrine.” Therefore, upon feeling the soft, spongy item in Ware’s pocket, the officer was not automatically authorized to search Ware’s pocket. But Gilbert testified that he asked for consent to search Ware’s pocket, and that Ware gave his consent.

A valid consent eliminates the need for either probable cause or a search warrant. Moreover, once a voluntary consent is legally obtained, it continues until it either is revoked or withdrawn. The burden of proving the validity of a consensual search is upon the [s]tate. To meet its burden, the [sjtate must show that the consent was voluntarily given and was not merely acquiescence to a claim of lawful authority.

Decided April 27, 2011.

Teresa L. Smith, for appellant.

The evidence in the record was that Ware consented to the search, and Ware offered no evidence to the contrary. Accordingly, the officer was authorized to seize the marijuana from Ware’s pocket.

Ware argues that Walker v. State supports his contention that the detention was unlawful. But Walker is inapposite here. Walker involved a second-tier investigative detention, where the officer had no particularized and objective basis for suspecting that the defendant was or was about to be involved in criminal activity, with the result that defendant’s consent was not valid because it was the product of an illegal detention. Additionally, even had the search followed a valid consent, the officer exceeded the scope of the search of the defendant’s pockets when he pulled the defendant’s waistband forward to look down inside the defendant’s crotch area.

Ware briefly refers to inconsistencies in Gilbert’s testimony as to whether he actually asked for consent to do the pat-down and to search Ware’s pockets, but the “[credibility of witnesses, resolution of any conflict or inconsistency, and weight to be accorded testimony are solely the province of the judge on a motion to suppress,” and the trial court obviously believed the officer’s testimony. Accordingly, the trial court did not err when it denied Ware’s motion to suppress.

Judgment affirmed.

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

W. Kendall Wynne, Jr., District Attorney, Nathan A. Kratzert, Assistant District Attorney, for appellee.

       (Punctuation and footnotes omitted; emphasis supplied.) Butler v. State, 303 Ga. App. 564-565 (694 SE2d 168) (2010).

       (Citation and punctuation omitted.) In the Interest of D. H., 285 Ga. 51, 53 (2) (673 SE2d 191) (2009).

       (Punctuation omitted.) State v. Westmoreland, 204 Ga. App. 312 (1) (418 SE2d 822) (1992), citing Florida v. Bostick, 501 U. S. 429, 434-435 (II) (111 SC 2382, 115 LE2d 389) (1991). Accord Stokes v. State, 238 Ga. App. 230, 232 (518 SE2d 447) (1999).

        Johnson v. State, 297 Ga. App. 847, 848 (678 SE2d 539) (2009).

       (Citation omitted.) Id.

       Id.

       (Citation omitted.) Sudduth v. State, 288 Ga. App. 541, 542 (2) (654 SE2d 446) (2007). Accord Johnson, supra.

       See Brown v. State, 293 Ga. App. 564, 566 (1) (667 SE2d 410) (2008) (officer lacked authority to intrude into defendant’s pocket upon feeling the corner of a hard object absent evidence that the officer thought the object was or contained a weapon). Compare Dunn v. State, 289 Ga. App. 585, 586-587 (1) (b) (657 SE2d 649) (2008) (trooper authorized to seize bag, where he saw plastic hag in defendant’s pocket and, on pat-down search, felt powdery substance in bag that he believed was cocaine). In the instant case, there was no testimony from the officer that he thought the object he felt was contraband.

       (Citations and punctuation omitted.) Brint v. State, 306 Ga. App. 10, 12-13 (2) (701 SE2d 507) (2010). Compare Johnson, supra at 849 (denial of motion to suppress reversed where state could not provide voluntary consent as officer did not testify that he asked for consent to search the defendant’s pocket).

        See Hicks v. State, 293 Ga. App. 745, 746-747 (667 SE2d 715) (2008) (officer authorized to seize contraband from defendant’s pocket after receiving consent to search the pocket); State v. Davis, 283 Ga. App. 200, 203 (2) (641 SE2d 205) (2007) (officer authorized to seize cocaine from defendant’s pocket after defendant consented to search of that pocket).

       299 Ga. App. 788 (683 SE2d 867) (2009).

       Id. at 790 (1).

       Id. at 791 (2).

       Id. at 791-792 (2).

       (Citation and punctuation omitted.) Reese v. State, 252 Ga. App. 650, 651 (1) (556 SE2d 150) (2001). Accord Welch v. State, 263 Ga. App. 70, 72 (2) (587 SE2d 220) (2003).


text:
    A11A0350, A11A0351, A11A0352, A11A0353.
    KAPPELMEIER v. PDQ PROPERTY MANAGEMENT, INC. et al. (four cases).
    (710 SE2d 631)
   MlKELL, Judge.

Gottfried A. Kappelmeier, who is pro se, filed a complaint alleging various torts against PDQ Property Management, Inc. (“PDQ”), and its president, Wanda J. Galante, arising out of their management of the Berkeley Woods condominiums, where Kappelmeier resides. In these four consolidated appeals, Kappelmeier enumerates as error the trial court’s orders denying his motion for default judgment, denying his motion for recusal, and denying his request to proceed in forma pauperis. Finding no error, we affirm.

1. The complaint in this case was served on appellees on January 5, 2009, and appellees timely filed their responsive pleadings within 30 days thereafter, on February 4, 2009. Accordingly, the trial court denied Kappelmeier’s motion for default judgment, which asserted that appellees’ answer was untimely filed.

Kappelmeier argues that appellees’ answers were invalid because they were not verified. We disagree. The Civil Practice Act does not require verification of defensive pleadings except where specifically stated. A verified answer is required “[i]n all cases where the plaintiff files a pleading with an affidavit attached to the effect that the facts stated in the pleading are true to the best of his knowledge and belief.” Although Kappelmeier’s complaint states that it is “verified,” there is no affidavit attached thereto indicating that the facts alleged in the complaint are true. “Under these circumstances, the defendants were not required to verify their answer.”

2. Kappelmeier next complains of the denial of his “emergency” motion to recuse the trial judge, arguing that the judge “at all relevant times appeared to rule with a distinct, chronic anti-pro se Kappelmeier bias.”

In compliance with Uniform Superior Court Rule (USCR) 25.3, another judge was assigned to hear Kappelmeier’s motion for re-cusal, and the judge issued a well-reasoned order concluding that Kappelmeier had failed to set forth any facts supporting his allegations of judicial bias. “This Court employs an abuse of discretion standard in reviewing rulings made upon motions to recuse.”

“In order to be disqualifying an alleged judicial 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.” The alleged bias “must be of such a nature and intensity to prevent the [party] from obtaining a trial uninfluenced by the court’s prejudgment.” The record reveals no evidence of bias, and there was no abuse of discretion in the denial of Kappelmeier’s motion.

3. Finally, Kappelmeier enumerates as error the trial court’s order denying his request to proceed in forma pauperis. However, he offers no argument or citation of authority in support of this enumeration of error. “Any enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned.” Moreover, even if we did not deem this claimed error abandoned, it would provide no basis for reversal. “Pursuant to OCGA § 5-6-47 (b) and OCGA § 9-15-2 (a) (2), a trial court’s ruling regarding indigency is final and not subject to appellate review.”

4. Kappelmeier’s brief is, in this case, as it was in a previous appeal, “particularly difficult to decipher.” We are unable to discern any other argument save those addressed above; as such, any other error vaguely asserted by Kappelmeier is deemed abandoned pursuant to Court of Appeals Rule 25 (c). “Even pro se appellants must abide by appellate practice rules.”

5. Kappelmeier’s reply brief is rife with personal attacks and disparaging remarks against counsel for appellees. Such remarks are strictly forbidden by Court of Appeals Rule 10 and might subject Kappelmeier to contempt under Court of Appeals Rule 7.

Decided April 27, 2011.

Gottfried A. Kappelmeier, pro se.

Christopher R. Reeves, for appellees.

Judgments affirmed.

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

       Appellees assert that Kappelmeier waived this claim by failing to assert it in the trial court. We find, however, that the issue was raised in Kappelmeier’s motion for default judgment, so we address it herein.

       OCGA § 9-11-11 (b); Auerback v. Maslia, 142 Ga. App. 184, 187 (5) (235 SE2d 594) (1977).

       OCGA § 9-10-111.

       Only affidavits of indigency are attached to the complaint.

       (Citation omitted.) Ware v. Fidelity Acceptance Corp., 225 Ga. App. 41, 43 (2) (482 SE2d 536) (1997).

       (Citation, punctuation and footnote omitted.) Kirkland v. Tamplin, 283 Ga. App. 596, 599 (3) (642 SE2d 125) (2007).

       (Punctuation and footnote omitted.) Butts v. State, 273 Ga. 760, 762-763 (3) (546 SE2d 472) (2001).

       (Citation and punctuation omitted.) Gillis v. City of Waycross, 247 Ga. App. 119, 120 (543 SE2d 423) (2000); accord Morgan v. Propst, 301 Ga. App. 402, 404 (1) (c) (688 SE2d 357) (2009).

       Court of Appeals Rule 25 (c) (2).

        Mitchell v. Cancer Carepoint, 299 Ga. App. 881, 883 (1) (683 SE2d 923) (2009), citing Cottrell v. Askew, 276 Ga. App. 717, 719, n. 1 (624 SE2d 203) (2005). See Quarterman v. Weiss, 212 Ga. App. 563, 564 (5) (442 SE2d 813) (1994); Saylors v. Emory Univ., 187 Ga. App. 460, 461 (1) (370 SE2d 625) (1988).

        Kappelmeier v. HSBC USA, Inc., 280 Ga. App. 349, 350, n. 1 (634 SE2d 133) (2006).

        Moss v. Rutzke, 223 Ga. App. 58, 59 (1) (476 SE2d 770) (1996).


text:
    A11A0432.
    HARDAWAY v. THE STATE.
    (710 SE2d 634)
   MlKELL, Judge.

After a bench trial, Steven Hardaway was convicted of possession with intent to distribute marijuana and possession of drug related objects and sentenced to ten years to serve five. On appeal, Hardaway argues that the trial court erred when it denied his motion to suppress. He also challenges the sufficiency of the evidence as to his conviction of possession with intent to distribute. We affirm.

1. In his first enumeration of error, Hardaway contends that the trial court erred when it denied his motion to suppress.

In reviewing a trial court’s ruling denying a motion to suppress or in limine, the following three principles apply: First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. Because there was testimonial evidence in this case, we do not apply a de novo standard of review.

So viewed, the evidence shows that Deputy Joshua Lipscomb of the Douglas County Sheriffs Office observed Hardaway as he drove onto the shoulder of the highway, turned on his right blinker, and then straddled the white line, causing Lipscomb to initiate a traffic stop. Lipscomb testified that he approached Hardaway’s vehicle from the passenger side and asked Hardaway for his driver’s license; that Hardaway had shoved his arm between the console and the driver’s seat up to his elbow; that it appeared that Hardaway was trying to conceal something; and that Hardaway told him that he was looking for his wallet but ultimately retrieved it from the driver’s side visor. Lipscomb further testified that within 30 seconds of receiving the license, he returned to his patrol car and radioed for backup. The backup units arrived while Lipscomb was writing the ticket. Lipscomb approached Hardaway’s car again and asked him to step out of the car. Lipscomb asked Hardaway if there were weapons or drugs in the car and then obtained Hardaway’s consent to search the car.

As Lipscomb prepared to search the vehicle, Hardaway asked why he had been stopped. Lipscomb testified that he told Hardaway why he stopped him and that Hardaway then revoked his consent to search. At that point, Lipscomb called for a drug dog to do a free air sniff, and the drug dog arrived in approximately three minutes. After the dog alerted to Hardaway’s vehicle, Lipscomb searched the car, locating boxes of clear, plastic baggies, smaller baggies of what appeared to be marijuana, a digital scale, and $2,826 in cash. Lipscomb testified that approximately ten minutes elapsed from the time he initiated the stop until the drug dog alerted; that under normal circumstances it would have taken him approximately six to seven minutes to write a ticket; and that he did not smell or see marijuana, weapons, or any other illegal contraband during the stop.

In denying the motion to suppress, the trial court concluded that the stop was lawful based upon Hardaway’s failure to maintain lane; that the officers did not unreasonably prolong the stop; that the drug dog arrived within ten minutes of the initial stop and very quickly alerted on Hardaway’s vehicle; and that the search was lawful. Hardaway does not question the legality of the stop but argues that he was unlawfully detained by the officer.

The Fourth Amendment protects a person’s right to be secure against unreasonable searches and seizures. The touchstone of the Fourth Amendment is reasonableness. Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances. In order to pass constitutional muster, the investigative stop of a vehicle cannot be unreasonably prolonged beyond the time required to fulfill the purpose of the stop.

“The question is whether the prolongation is reasonable or unreasonable. On this issue we should defer to the trial court unless the facts are truly egregious.” The evidence here does not demand a finding contrary to the trial court’s conclusion that the officers did not unreasonably prolong the stop.

Lipscomb stopped Hardaway for failure to maintain lane and issued him a citation for that traffic violation. “[F]ailing to maintain one’s lane justifies a stop of a vehicle for a traffic violation.” After his first conversation with Hardaway, Lipscomb returned to his patrol car and radioed for backup within 30 to 45 seconds of receiving Hardaway’s license. Lipscomb testified that it appeared that Hard-away was attempting to conceal something because Hardaway said he was looking for his license but retrieved it from a different area of the car. Lipscomb began writing Hardaway’s citation but did not complete it because he was waiting for the backup units to arrive.

Once the backup officers arrived, Lipscomb stopped writing the ticket and approached Hardaway’s vehicle again, asking him to step out of the vehicle and about the presence of drugs or weapons therein, and for consent to search. “A police officer, having effected a valid stop of a vehicle, does not violate a driver’s Fourth Amendment rights merely by inquiring about his possession of weapons or drugs or requesting his consent to search his vehicle for those weapons or drugs.” Hardaway gave and then revoked his consent to search, at which point Lipscomb summoned the drug dog, which arrived at the earliest, three minutes later, according to Lipscomb’s testimony, and at the latest, five minutes later, according to the dog’s handler’s testimony. Lipscomb testified that he was still writing the ticket as they waited on the drug dog’s arrival and that the entire encounter lasted no more than ten minutes.

Although not stated succinctly in his appellate brief, Hardaway essentially argues that the four minute delay from the time it would have taken the officer to write the ticket to the time the drug dog alerted constituted an unreasonably prolonged detention. The trial court correctly concluded, however, that a brief detention was authorized because it was reasonable for the officer to be suspicious in light of Hardaway’s furtive movement at the initial point of the stop. The trial court reasoned that this suspicion was heightened when Hardaway attempted to explain that he was looking for his wallet then retrieved his license from a different part of the car and when Hardaway revoked his consent to search. The evidence supported the trial court’s finding that, under the totality of the circumstances, the detention was not unreasonably prolonged. Additionally,

[t]he use of a drug sniffing dog to conduct a free air search around the exterior of a vehicle during the course of a lawful traffic stop does not implicate the Fourth Amendment under the United States Constitution. Our law is clear that it is permissible to conduct an open air search around a vehicle while a traffic stop is still in progress so long as the stop has not been unreasonably prolonged for the purpose of conducting the search.

“Once the dog alerted, [Lipscomb] had probable cause to search [Hardaway’s] vehicle.” Therefore, the denial of Hardaway’s motion to suppress was proper as the evidence supported the trial court’s finding that the officers did not unreasonably prolong the stop.

2. Next, Hardaway challenges the sufficiency of the evidence as to his conviction of possession with intent to distribute marijuana. Upon review of Hardaway’s challenge to the sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” The evidence showed that Hardaway was in possession of clear, plastic baggies, smaller baggies of suspected marijuana, a digital scale, and $2,826 in cash. Officer Kenneth Adcock testified that in his capacity as a marijuana tester for the Douglas County Sheriffs Office, he tested a total of 11 bags, containing approximately 190 grams of a substance that tested positive for marijuana. There was no testimony offered by the officers as to their experience with marijuana distribution. Nonetheless, possession of a scale, baggies, and large amounts of currency along with drugs can constitute circumstantial evidence of intent to distribute. Accordingly, this enumeration of error fails as well.

Decided April 27, 2011.

Benjamin A. Davis, Jr., for appellant.

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

Judgment affirmed.

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

       (Punctuation, footnotes and emphasis omitted.) Butler v. State, 303 Ga. App. 564-565 (694 SE2d 168) (2010).

       (Citations and punctuation omitted.) Sommese v. State, 299 Ga. App. 664, 668 (1) (683 SE2d 642) (2009). Accord Langston v. State, 302 Ga. App. 541, 543 (691 SE2d 349) (2010).

       (Footnotes omitted.) Hayes v. State, 292 Ga. App. 724, 729 (2) (c) (665 SE2d 422) (2008).

       (Footnote omitted.) Spence v. State, 263 Ga. App. 377 (1) (587 SE2d 766) (2003).

       (Citation and punctuation omitted.) Byers v. State, 272 Ga. App. 664, 666 (613 SE2d 193) (2005).

       See Jones v. State, 259 Ga. App. 849, 852 (578 SE2d 562) (2003) (evidence that defendant appeared to be hiding something along with his nervous behavior justified brief detention). Compare Bell v. State, 295 Ga. App. 607, 610-611 (2) (672 SE2d 675) (2009) (in the absence of furtive conduct, officers had no reason to believe defendant and passenger were dangerous even though a baton was in clear view and the defendant appeared nervous).

       See Langston, supra.

       (Citations and punctuation omitted.) Langston, supra at 544. See also Bowens v. State, 276 Ga. App. 520, 522 (623 SE2d 677) (2005) (“reasonable and articulable suspicion is not required before a police officer may use a canine trained in drug detection to sniff the vehicle’s exterior”) (citation and emphasis omitted). Compare Bennett v. State, 285 Ga. App. 796, 798 (648 SE2d 126) (2007) (officer unreasonably prolonged stop when he did not question or issue a citation to the defendant about the reason for the initial stop, concerned instead about a potential violation that may not have been a crime, then waited for another officer to bring a written warning book and that officer’s dog alerted on the car).

        Langston, supra at 545, citing State v. Simmons, 283 Ga. App. 141, 143 (640 SE2d 709) (2006). Accord Becoats v. State, 301 Ga. App. 768, 770-771 (688 SE2d 686) (2009).

       See Butler, supra.

       (Citation and punctuation omitted.) Kimble v. State, 301 Ga. App. 237, 240 (1) (a) (687 SE2d 242) (2009).

        Copeland v. State, 273 Ga. App. 850, 854 (2) (616 SE2d 189) (2005); Henderson v. State, 184 Ga. App. 834, 836 (2) (363 SE2d 52) (1987) (“Circumstantial evidence that the total quantity of marijuana possessed by defendant was packaged in numerous small manila envelopes is sufficient for a rational trier of fact to find defendant guilty of possession with intent to distribute.”) (citations omitted).


author: MIKELL, Judge.

text:
    A11A0451.
    TRAPP v. THE STATE.
    (710 SE2d 637)
   MIKELL, Judge.

Steven Thomas Trapp appeals the trial court’s denial of his motion to withdraw his nonnegotiated guilty plea to theft by shoplifting, for which the trial court sentenced him to serve ten years in confinement. Trapp contends that the plea was not knowingly and voluntarily entered and that his trial counsel was ineffective. We disagree and affirm.

A ruling on a motion to withdraw a guilty plea lies within the sound discretion of the trial court, and we will not disturb that ruling absent a manifest abuse of that discretion. Of course, in determining the motion, the trial court is the final arbiter of all factual disputes raised by the evidence. If evidence supports the trial court’s findings, we must affirm.

In the case at bar, the evidence supports the trial court’s findings, and the court did not abuse its discretion in refusing to allow Trapp to withdraw his plea, as demonstrated below.

1. When a defendant challenges the validity of a guilty plea, the state bears the burden of showing that the defendant entered his plea knowingly, intelligently, and voluntarily. The state may sustain this burden “by showing through the record of the guilty plea hearing that (1) the defendant has freely and voluntarily entered the plea with (2) an understanding of the nature of the charges against him and (3) an understanding of the consequences of his plea.”

The record in this case shows that Trapp decided to enter a plea in the middle of his trial, just before the jury was set to view a video of the shoplifting incident. Trapp’s counsel explained that his defense had been mistaken identity, but once Trapp viewed the video on a large screen with his glasses on, he wanted to “take responsibility for his actions, no longer hold the jury or waste the court’s time.” The video was made by James Barbie, a loss prevention specialist for Lowe’s Home Improvement Centers. Barbie testified that he was monitoring the tool section of the Carroll County store on closed-circuit television when he observed a man, whom Barbie later identified as Trapp, remove wrenches from their packaging and place them in his pocket. According to Barbie, Trapp exited the store through the commercial sales area without paying for the merchandise. Barbie confronted Trapp outside the store, and Trapp surrendered the wrenches, which were introduced into evidence. Barbie testified that he “burned” three copies of the incident onto DVDs, and one copy was introduced into evidence. The court took a recess in order for technicians to set up the proper equipment on which to play the video, and during the recess, Trapp announced that he wished to enter a guilty plea.

The trial court commenced a plea hearing, during which the prosecutor explained to Trapp the nature of the charge, the range of punishment it carried, and all of the rights that Trapp waived by pleading guilty. In each instance, Trapp confirmed that he understood. Trapp also confirmed that he was, in fact, guilty. In addition, Trapp acknowledged that he had had an opportunity to confer with his attorney and that he was satisfied with his attorney’s services. He denied using any mind-altering substances and stated that no promises or threats had been made to induce him to plead guilty. Trapp also acknowledged that he understood that he was entering a plea without a recommendation from the state as to his sentence.

The trial court made a second inquiry, during which Trapp again confirmed that he was cognizant of all of the rights he was waiving by pleading guilty; that he was doing so freely and voluntarily; and that no one had threatened or coerced his decision. Trapp confirmed that he understood that the sentence could range from one to ten years in prison and stated that he still wished to plead guilty. Trapp’s counsel acknowledged his “extensive” criminal history and offered poverty and homelessness in mitigation. Trapp apologized to the court for committing the crime, called his stealing an “addiction,” and threw himself on the mercy of the court. The trial court accepted Trapp’s plea, finding that it was made freely and voluntarily and that a factual basis existed for the plea. The court sentenced Trapp to the maximum penalty, ten years to serve.

Notwithstanding all of his pronouncements at the plea hearing, Trapp testified at the hearing on his withdrawal motion that he “panicked” at trial, could not remember entering the plea, and had “no idea why” he did so. He claimed that he was “confused” and “not in his right mind” when he entered the plea. Trial counsel contradicted this testimony, explaining that when Trapp saw the video, he looked at her and said, “I’m sunk, aren’t I?” The video depicted Trapp wearing the same shoes that he wore at trial. Counsel informed Trapp that if he wanted to plead guilty, he would have to enter a blind plea, and she explained that he would likely be sentenced to ten years to serve. Counsel testified that in her opinion, Trapp entered the plea freely and voluntarily.

After recounting Trapp’s extensive criminal history, the trial court rejected his assertions as “ridiculous” and denied his motion to withdraw his plea. On appeal, Trapp essentially challenges the court’s credibility determinations, urging us to reweigh the evidence. We cannot do so. “Credibility of witnesses and the weight to be given their testimony is a decision-making power that lies solely with the trier of fact. The trier of fact is not obligated to believe a witness even if the testimony is uncontradicted and may accept or reject any portion of the testimony.” Here, the trial court was authorized to disbelieve Trapp’s self-serving testimony and to find that he knowingly, freely, and voluntarily entered the plea.

Decided April 27, 2011.

Drummond & Swindle, Jason W Swindle, for appellant.

Peter J. Skandalakis, District Attorney, David P. Taylor, Assistant District Attorney, for appellee.

2. Trapp next contends that he received ineffective assistance of counsel. To prevail on this claim, Trapp “must show that his lawyer’s performance was deficient and that, but for [counsel’s] errors, there is a reasonable probability he would have insisted on going to trial.” Trapp contends that trial counsel was ineffective in failing to interview and subpoena witnesses. In this regard, trial counsel testified at the withdrawal hearing that Trapp wanted her to subpoena every employee of Lowe’s and every law enforcement officer who was present in the store on the day he was arrested. However, he gave her no reason for wanting to do so. Trapp testified, “What I wanted her to do was subpoena those people so that maybe somebody saw something as to what I did that day. I mean I looked guilty as hell, you know?” Contrary to his testimony at the plea hearing, Trapp claimed that he bought the wrenches at a flea market but was returning them to Lowe’s for a refund and that he had spoken to a store employee about it. He claimed that the potential witness would support his defense theory. Trapp, however, failed to produce any such witness at the hearing on his motion to withdraw his plea. As a result, Trapp has not demonstrated that there is a reasonable probability he would have insisted on going to trial but for trial counsel’s failure to interview any potential witness.

Moreover, evidence supports the trial court’s finding that Trapp was motivated to plead guilty after viewing a video of himself committing the crime and not as a result of any purportedly deficient performance by counsel. Accordingly, Trapp’s claim of ineffective assistance fails.

Judgment affirmed.

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

       See Maddox v. State, 278 Ga. 823, 826 (4) (607 SE2d 587) (2005) (After sentence has been pronounced, a guilty plea may be withdrawn only to correct a manifest injustice, such as, “if, for instance, a defendant is denied effective assistance of counsel, or the guilty plea was entered involuntarily or without an understanding of the nature of the charges.”) (citation and punctuation omitted).

       (Punctuation and footnotes omitted.) Hubbard v. State, 301 Ga. App. 388-389 (687 SE2d 589) (2009).

        Bazemore v. State, 273 Ga. 160, 161 (1) (535 SE2d 760) (2000).

       (Citation and punctuation omitted.) Williams v. State, 296 Ga. App. 270, 271 (1) (a) (674 SE2d 115) (2009).

       (Citation and footnote omitted.) Tate v. State, 264 Ga. 53, 56 (3) (440 SE2d 646) (1994).

        Shuler v. State, 306 Ga. App. 820, 822 (1) (b) (703 SE2d 382) (2010); Thornton v. State,
        180 Ga. App. 274 (349 SE2d 23) (1986) (upholding finding that appellants’ guilty pleas were entered voluntarily and intelligently despite their claims that they were “frightened and confused, were rushed into making a decision” and “could not think”).

       (Citation omitted.) Ellis v. State, 272 Ga. 763, 764 (1) (534 SE2d 414) (2000).

       See Foster v. State, 281 Ga. App. 584, 585-586 (2) (636 SE2d 759) (2006).

       See, e.g., Coggins v. State, 275 Ga. 479, 482 (3) (569 SE2d 505) (2002) (trial court authorized to believe counsel’s testimony over that of defendant); Pattillo v. State, 304 Ga. App. 344, 345 (696 SE2d 370) (2010) (same).


author: Mikell, Judge.

text:
    A11A0536.
    PASS v. THE STATE.
    (710 SE2d 641)
   Mikell, Judge.

Following the denial of his motion to suppress, Christopher Edward Pass was convicted at a bench trial of theft by receiving, possession of marijuana with intent to distribute, and possession of cocaine. He argues on appeal that the trial court erred in denying his motion to suppress evidence because (1) the affidavit submitted in support of the warrant did not establish probable cause, and (2) the warrant was invalid because the affidavit was not left at the searched premises. We affirm.

1. Pass contends that the trial court erred in denying his motion to suppress because the magistrate lacked probable cause to issue the warrant.

A search warrant will only issue upon facts sufficient to show probable cause that a crime is being committed or has been committed. The magistrate’s task in determining if probable cause exists to issue a search warrant is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. The trial court may then examine the issue as a first level of review, guided by the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant, and the principle that substantial deference must be accorded a magistrate’s decision to issue a search warrant based on a finding of probable cause. A deferential standard of review is appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant.

On appeal from the denial of a motion to suppress, we review the affidavit in the light most favorable to the trial court’s ruling, according “great deference to the magistrate’s determination of probable cause.”

The affidavit in the case at bar was submitted on March 30, 2009, by investigator Andy Smith of the Gainesville/Hall County Gang Task Force. Smith averred that between March 22 and March 29, 2009, he was contacted by an informant known as “IT,” who reported that he observed a quantity of marijuana in possession of “Elmo” at a specific address in Flowery Branch; that the Task Force gave IT $100 to purchase marijuana from Elmo; that another investigator, Amerling, transported IT to the premises, where IT made the buy; that afterward, IT handed the marijuana to Amerling; and that Smith considered IT “true and reliable” and his information “truthful and correct” as a result of the drug buy. Smith further averred that IT had had the opportunity to observe quantities of marijuana and was familiar with the use and distribution of marijuana and other controlled substances; that Smith had known IT for one week and IT had been truthful during that time; that IT was providing information on at least five other drug investigations; that IT had not been promised any reward in exchange for information; that during the course of Smith’s independent investigation, IT provided Smith with a description of, and detailed directions to, the premises to be searched, rode with Smith to the premises, and stated that Elmo lived with a woman named “Jeannie.” Smith observed a car at the location and ran the tag, which returned to Jeannie Massey. Further investigation revealed that Massey owned the premises.

At the hearing on the motion to suppress, Smith testified that the search warrant was executed on March 31, 2009. As a result of the search, officers seized marijuana, crack cocaine, cash, digital scales, and firearms, among other things. After reading Pass his Miranda rights, Pass confirmed that he was nicknamed “Elmo.” Smith testified that he left a copy of the warrant at the premises but did not attach the affidavit because it contained information regarding his informant. Smith also indicated that his investigation revealed nothing other than what was stated in the affidavit.

Pass argues that the affidavit contained insufficient facts either demonstrating IT’s reliability or corroborating the information provided by IT and thus failed to establish probable cause to issue the warrant. Pass contends that the informant was not reliable because he had not previously supplied information to law enforcement. However, “the absence of significant information regarding reliability is not necessarily fatal to an affidavit” submitted in support of a search warrant. In this regard, “a controlled buy strongly corroborates the reliability of the informant.” Here, the affidavit reveals that the informant participated in a drug buy using law enforcement funds. An officer transported the informant to the premises where the informant made the purchase, and the informant provided the purchased contraband to the officer. Pass argues that the affidavit does not show that the drug buy was sufficiently “controlled” because it does not state that law enforcement kept the informant under constant surveillance or searched the informant before and after the buy to ensure that he had no contraband or money on him. While the absence of these factual assertions may render the case doubtful or marginal, our Supreme Court has cautioned that “[e]ven doubtful cases should be resolved in favor of upholding a magistrate’s determination that a warrant is proper.” Under the totality of the circumstances, the magistrate had a substantial basis for concluding that there was a fair probability contraband would be found at the specified residence. The trial court did not err in denying the motion to suppress on this ground.

2. Pass next argues that Smith’s failure to leave the affidavit establishing probable cause rendered the warrant invalid. We disagree.

The Fourth Amendment to the United States Constitution states that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” In Groh v. Ramirez, the United States Supreme Court held that the particularity requirement was not met by a warrant that did not, on its face, specify the particularized details, because the warrant neither incorporated a supporting application or affidavit by reference and such document did not “accompany” the warrant at the time of the search. In light of Groh, we held in Battle v. State that “where a search warrant fails to meet the particularity requirement on its face but instead incorporates a supporting document by reference, failure to leave a copy of that supporting document at the searched premises invalidates the warrant.”

Decided April 27, 2011.

Guy E. Davis, Jr., for appellant.

Lee Darragh, District Attorney, Wanda L. Vance, Assistant District Attorney, for appellee.

The warrant in the case at bar satisfies the particularity requirement on its face. Specifically, the warrant lists the address of the place to be searched and contains a description of the home. The warrant also lists items to be seized, including marijuana, weighing devices, and other paraphernalia used in the distribution of drugs. Therefore, the fact that Smith did not leave a copy of the affidavit with the warrant at the premises did not render the warrant invalid.

Nevertheless, Pass argues that the holding in Groh should be extended to require a showing of probable cause on the face of the warrant or in an affidavit either incorporated therein by reference or attached thereto. Pass does not cite a case directly on point, and our research reveals none. Moreover, Pass’s argument is not persuasive because “a magistrate may consider sworn oral testimony in addition to the contents of an affidavit when deciding whether there is probable cause to issue a search warrant.” If probable cause may be established in part by oral testimony, then it does not logically follow from Groh that the absence of facts establishing probable cause on the face of a warrant renders it constitutionally defective.

Judgment affirmed.

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

       (Citations and punctuation omitted.) State v. Palmer, 285 Ga. 75, 77 (673 SE2d 237) (2009).

        Chambliss v. State, 298 Ga. App. 293, 294 (1) (679 SE2d 831) (2009).

       (Punctuation and footnote omitted.) State v. Donaldson, 281 Ga. App. 51, 52 (635 SE2d 345) (2006).

       See State v. McKendree, 188 Ga. App. 290, 291 (372 SE2d 673) (1988) (When the informant is unnamed, “the affidavit must set forth sufficient facts from which the magistrate or judge can independently determine the reliability of both the information and the informant.”) (citation and punctuation omitted; emphasis in original).

       See St. Fleur v. State, 286 Ga. App. 564, 566-567 (649 SE2d 817) (2007) (no probable cause because informant’s tip was not corroborated).

       (Citation omitted.) Chambliss, supra at 296 (1).

       (Citation omitted.) Palmer, supra at 79.

       See, e.g., Brown v. State, 244 Ga. App. 440, 442 (1) (535 SE2d 785) (2000).

       (Citation and punctuation omitted.) Palmer, supra (“Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.”) (citation omitted). Id. at 77-78.

        Ibekilo v. State, 277 Ga. App. 384, 385 (1) (626 SE2d 592) (2006) (“ ‘[E]ven if the informant had no known credibility, the controlled buy conducted under the observation of the officer alone, would have been sufficient to establish probable cause.’ ”); Garmon v. State, 269 Ga. App. 795, 796 (1) (a) (605 SE2d 606) (2004) (same). Compare Fiallo v. State, 240 Ga. App. 278-279 (523 SE2d 355) (1999) (No probable cause existed to issue warrant because agent testified that he did not consider informant to be reliable and affiant’s statement that the informant had “made a purchase of cocaine at the residence within the past 72 hours for Affiant” was insufficient corroboration.) (punctuation omitted).

       U. S. Const. Amend. 4. See also Ga. Const. Art. I, Sec. I, Par. XIII: “no warrant shall issue except upon probable cause supported by oath or affirmation particularly describing the place or places to be searched and the persons or things to be seized.”

       540 U. S. 551 (124 SC 1284, 157 LE2d 1068) (2004).

       Id. at 557-558 (II).

       275 Ga. App. 301 (620 SE2d 506) (2005).

       Id. at 303.

       (Citation omitted.) Tabb v. State, 250 Ga. 317, 321 (2) (b), n. 5 (297 SE2d 227) (1982); accord Felix v. State, 241 Ga. App. 323, 324 (2) (526 SE2d 637) (1999).