author: McFadden, Judge.

text:
    A11A1159.
    NUNNALLY v. THE STATE.
    (716 SE2d 608)
   McFadden, Judge.

After the grant of an interlocutory appeal, Jihad Kabir Nunnally appeals the trial court’s denial of his motion to quash his indictment and to transfer his case to the juvenile court for disposition. He contends the trial court erred by refusing to transfer his case to juvenile court because OCGA § 17-7-50.1 required that he be indicted within 180 days after he was detained or that his case be transferred. As OCGA § 17-7-50.1 mandates the transfer of Nunnally’s case to juvenile court, we must vacate the order of the trial court.

The record shows that Nunnally was arrested on October 2, 2009, for aggravated assault, armed robbery with a firearm, and possession of a firearm during the commission of a felony. Although he was 16 years old at the time, the superior court had jurisdiction over Nunnally’s case because he allegedly committed armed robbery with a firearm. See OCGA § 15-11-28 (b) (2) (A) (vii).

Nunnally turned 17 years old on December 28, 2009, after which he was transferred to the county jail. On May 4, 2010, 214 days after his arrest, Nunnally was indicted for aggravated assault, armed robbery with a firearm, and possession of a firearm during the commission of a felony. On July 6, 2010, Nunnally moved to quash the indictment and transfer his case to the juvenile court because he was not indicted within 180 days of his detention as required by OCGA § 17-7-50.1.

More than two months later, on September 23, 2010, the State responded to Nunnally’s motion by asking the trial court to grant a retroactive extension of time in which to file the indictment. This request was made 176 days after the 180-day period prescribed in OCGA § 17-7-50.1 (a) had ended, and 356 days after Nunnally’s arrest.

Nevertheless, on October 20, 2010, more than a year after Nunnally was detained and 226 days after the expiration of the 180-day period prescribed in OCGA § 17-7-50.1, the trial court denied Nunnally’s motion to quash and implicitly granted the State’s motion for an out-of-time extension. The court reasoned that the grand jury returned its indictment within 90 days of the expiration of the original 180-day period, and that “if the [SJtate had requested a 90 day extension of time, it would have been granted.” Thus, granting a retroactive extension, the trial court deemed the indictment timely and denied Nunnally’s motion. The trial court issued a certificate of immediate review, and after Nunnally’s application for an interlocutory appeal was granted, this appeal followed. He remains in jail.

1. This court has previously held that

[t]he plain language of [OCGA § 17-7-50.1] provides that a child within superior court jurisdiction “shall within 180 days of the date of detention be entitled to have the charge against him or her presented to the grand jury.” The statute further provides that the case “shall be transferred to the juvenile court” if an indictment is not obtained within the specified time.

(Emphasis in original.) Hill v. State, 309 Ga. App. 531, 533 (710 SE2d 667) (2011). Thus, because Hill was not indicted within 180 days of his detention, “[ujnder the plain language of the statute, it was mandatory that the case be transferred back to the juvenile court. OCGA § 17-7-50.1 (b).” Id. at 533-534.

This appeal differs from Hill, because in this case the State sought and obtained an after-the-fact extension of time. Thus, the question becomes whether this can be done. Nunnally contends that the State was not entitled to obtain an extension of time after the original 180-day indictment period expired. As this issue turns on proper interpretation of OCGA § 17-7-50.1, it “is a question of law, which is reviewed de novo on appeal. [Cit.J ” Spivey v. State, 274 Ga. App. 834 (1) (619 SE2d 346) (2005).

Although the legislature did not specify whether an extension of time contemplated by OCGA § 17-7-50.1 (a) must be requested before the 180-day period expired, and no case law resolves the question, the wording of the Code section makes it clear that the extension cannot be granted after the time limit established in the Code section has expired. In relevant part, OCGA § 17-7-50.1 provides:

(a) Any child who is charged with a crime that is within the jurisdiction of the superior court, as provided in Code Section 15-11-28 or 15-11-30.2, who is detained shall within 180 days of the date of detention be entitled to have the charge against him or her presented to the grand jury. The superior court shall, upon motion for an extension of time and after a hearing and good cause shown, grant one extension to the original 180 day period, not to exceed 90 additional days.
(b) If the grand jury does not return a true bill against the detained child within the time limitations set forth in subsection (a) of this Code section, the detained child’s case shall be transferred to the juvenile court and shall proceed thereafter as provided in Chapter 11 of Title 15.

(Emphasis supplied.)

Subsection (b) of this Code section states that if the indictment is not returned within 180 days after the child is detained plus any granted extension, “the detained child’s case shall be transferred to the juvenile court and shall proceed thereafter as provided in Chapter 11 of Title 15.” “Shall” is recognized generally as a command, and is mandatory. State v. Henderson, 263 Ga. 508, 510 (436 SE2d 209) (1993). Further, “shall” is a clear and unambiguous term. Haugen v. Henry County, 277 Ga. 743, 745 (2) (594 SE2d 324) (2004). Where a “statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms.” (Citation and punctuation omitted.) Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981).

The only natural and reasonable construction of OCGA § 17-7-50.1 (b) is that if an indictment is not returned within 180 days after the child was detained and no extension had been granted before that period expired, the child’s case must be transferred to the juvenile court. Hill, supra. Because no indictment was returned within 180 days after Nunnally’s arrest and detention, the grand jury lost authority to indict Nunnally before the indictment was returned. The indictment returned 214 days after his detention was void. Consequently, the trial court erred by granting the State’s untimely motion for an extension and denying Nunnally’s motion to quash the indictment and transfer the case. This finding is consistent with the holding in Hill that once the 180-day period expired, “the superior court lacked jurisdiction to enter its judgment on Hill’s guilty plea.” Hill, supra, 309 Ga. App. at 534.

When a specified time limit authorizing jurisdiction is exceeded, the trial court loses jurisdiction over such case. See, e.g., Hill, supra, 309 Ga. App. at 535 (“The superior court lacked jurisdiction at the time Hill was indicted. . . .”). Therefore, in application OCGA § 17-7-50.1 is the same as our other laws that require that action be taken within a specified time or jurisdiction is lost. For example, OCGA § 34-9-105 (b) requires superior courts to hear Workers’ Compensation appeals within 60 days of the date of their docketing or the decision of the State board “shall be considered affirmed by operation of law unless a hearing originally scheduled to be heard within the 60 days has been continued to a date certain by order of the court.” This Code section also requires the superior court to dispose of the issues on appeal within 20 days of the date of any hearing or “the decision of the board shall be considered affirmed by operation of law.” The effect of the Code section is that the superior court loses jurisdiction 60 days after the case is docketed if no hearing is held, and any order entered thereafter is a nullity. Synthetic Indus. v. Camp, 196 Ga. App. 637 (396 SE2d 518) (1990). Additionally, any decisions entered more than 20 days after a hearing are also nullities. Holder v. City of Atlanta, 294 Ga. App. 568, 570 (669 SE2d 504) (2008) (the superior court lacked authority to render an untimely order).

In a similar manner, under OCGA § 17-7-170 (b) if a defendant files a proper demand for trial and is not tried within that term of court or in the next regular court term in which juries qualified to try the defendant were impaneled, the defendant “shall be absolutely discharged and acquitted.” Consequently,

[wjhere demand is made and two terms of court expire, at both of which juries are impaneled and qualified to try the defendant, then discharge and acquittal must follow. The defendant’s discharge takes place by operation of law. No motion to acquit is necessary, but the discharge of the accused results automatically, by operation of law. Thus, appellant was automatically discharged at the close of the May term. Therefore, since appellant was automatically discharged at the close of the May term, the State’s reliance on appellant’s September term purported waiver of his demand for trial is misplaced.

(Citations and punctuation omitted; emphasis in original.) Smith v. State, 192 Ga. App. 604, 604-605 (386 SE2d 370) (1989).

Additionally, other provisions of our law, OCGA §§ 9-2-60 (b) and 9-11-41 (e), provide that any case in which “no written order is taken for a period of five years shall automatically stand dismissed. . . .” “In fact, ‘(a)ny subsequent order after the automatic dismissal of the case is null and void, because the trial court has lost jurisdiction over the case, which no longer is pending before it.’ [Cit.]” Brown v. Kroger Co., 278 Ga. 65, 69 (597 SE2d 382) (2004).

Decided September 1, 2011.

Jon C. Rhoades, for appellant.

OCGA § 17-7-50.1 should not be treated differently. Further, orders cannot be entered nunc pro tunc in these circumstances because “[a] nunc pro tunc entry cannot supply non-action. [Cits.]” Sikes v. Charlton County, 103 Ga. App. 251, 257 (4) (119 SE2d 59) (1961).

Consequently, because the grand jury did not indict Nunnally within 180 days after his detention and no extension of time had been granted, the grand jury lost authority over Nunnally’s case by operation of law. As a result, the indictment and the trial court’s after-the-fact grant of an extension were unauthorized and void, and the trial court’s order denying Nunnally’s motion to quash the indictment and transfer his case to the juvenile court must be vacated.

2. The State argues also that Nunnally’s motion was properly denied because he ultimately was indicted for armed robbery, a crime punishable by death or imprisonment for life or by imprisonment for not less than ten nor more than twenty years (OCGA § 16-8-41 (b)), and the superior court is prohibited from transferring to juvenile court cases in which the offense charged is punishable by “loss of life, imprisonment for life without possibility of parole, or confinement for life in a penal institution.” OCGA § 15-11-28 (b) (2) (B). Because we have found in Division 1 that Nunnally’s indictment was void, OCGA § 15-11-28 (b) (2) (B) does not apply, and this contention is without merit.

Accordingly, the order of the trial court denying Nunnally’s motion to quash the indictment and transfer the case to the juvenile court is vacated and the case is remanded to the superior court to transfer this case to the juvenile court for proceedings in accordance with Chapter 11 of Title 15.

Judgment vacated and case remanded with direction.

Phipps, P.J., and Andrews, J, concur.

Peter J. Skandalakis, District Attorney, Lynda S. Caldwell, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A11A1169.
    GLASS et al. v. GATES et al.
    (716 SE2d 611)
   BARNES, Presiding Judge.

John Glass, an inmate in the custody of Troup County, was killed while operating a tractor on a prison work detail supervised by correctional officer Donrell Gates. The plaintiffs brought this wrongful death and survival action against Troup County and Gates, in his individual and official capacities, alleging that Glass’s injury and death were the result of negligence in the supervision of the work detail. The defendants moved for summary judgment, contending that the undisputed evidence showed that the plaintiffs’ claims against the County were barred by sovereign immunity and their claims against Gates were barred by official immunity. The trial court granted the defendants’ motion.

There are two primary issues in this appeal from the trial court’s grant of summary judgment to the defendants. The first issue is whether, in determining if a local government has waived its sovereign immunity through the voluntary purchase of liability insurance under the second sentence of OCGA § 33-24-51 (b), courts should look to the definition of “motor vehicle” provided in OCGA § 36-92-1. We conclude that courts should not rely upon that statutory definition, which applies in the more narrow circumstance where the sovereign immunity of a local government is mandatorily waived under the framework provided in Chapter 92 of Title 36. Instead, as our precedent makes clear, “any motor vehicle” as used in OCGA § 33-24-51 (a), which is applicable to the waiver of sovereign immunity under the second sentence of OCGA § 33-24-51 (b), is defined as a vehicle that is capable of being driven on the public roads that is covered by a liability insurance policy purchased by the local government. Because the trial court applied the wrong definition of “motor vehicle,” we vacate the grant of summary judgment to the County and remand for the trial court to apply the proper definition in determining whether summary judgment is appropriate.

The second issue on appeal is whether there was any evidence that Gates failed to carry out a ministerial rather than a discretionary act. We conclude that there was evidence in the record that Gates failed to carry out a ministerial act, and because the trial court concluded otherwise, we reverse the grant of summary judgment to Gates on the claims brought against him in his individual capacity.

On appeal from the grant of summary judgment, we conduct a de novo review of the record, and we construe the facts and all inferences drawn from them in the light most favorable to the nonmoving party. Ins. Co. &c. of Pa. v. APAC-Southeast, 297 Ga. App. 553 (677 SE2d 734) (2009). Summary judgment is appropriate if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c).

On summary judgment, a trial court is not authorized to resolve disputed issues of material fact. A trial court is authorized only to determine whether disputed issues of material fact remain. If, and only if, no disputed issue of material fact remains is the trial court authorized to grant summary judgment.

(Citation omitted.) Ly v. Jimmy Carter Commons, LLC, 286 Ga. 831, 833 (1) (691 SE2d 852) (2010). With these principles in mind, we turn to the record in this case.

Viewed in the light most favorable to the plaintiffs, the evidence showed that on November 14, 2007, Glass was incarcerated at the Troup County Correctional Institute, a work camp for state and county prisoners. Glass was classified at a minimum security level and was due to be released from custody within three days.

On the morning in question, a crew of six prisoners from the work camp were cutting grass and picking up trash along a road in Troup County. Members of the crew included Glass and Tony Smith, both of whom were operating county-owned tractors with bush hogs attached to them.

Glass and Smith did have some prior experience operating tractors and bush hogs. However, Troup County had no program in place to train prisoners on the operation of tractors or bush hogs, and there is no evidence that prisoners were ever shown or provided access to the operator’s manual for the equipment.

Glass, Smith, and the other prisoners were under the supervision of correctional officer Gates. Although Gates received one week of on-the-job training as a work detail supervisor in early October 2007, Troup County provided no formal training to its work detail supervisors regarding the safe operation of tractors or bush hogs.

While cutting in a ditch against an embankment, Smith’s tractor became stuck. According to the plaintiffs, Troup County had an unwritten departmental policy to which Gates was required to comply when a tractor became stuck. Under the policy, if a tractor became stuck in a ditch while cutting grass, the work detail supervisor was to contact the work camp and request that a service truck be dispatched to pull the tractor out.

Upon learning that Smith’s tractor was stuck, Gates, who had been observing from inside the county transport van, drove to where Glass and Smith were located. Although a prisoner inside the van asked Gates if he wanted to call or radio back to the work camp for help, Gates instructed that a chain be taken from the back of the van and used by Glass and Smith to free Smith’s tractor. With that instruction given, a prisoner grabbed the chain from the van, and Glass and Smith attached it to each of the two tractors. Gates allowed the tractors to be attached so that they faced each other; the plan was for Glass to put his tractor in reverse and pull Smith’s tractor out of the ditch. As a result of this positioning, the safety screen on the back of Glass’s tractor did not come between Glass and Smith and thus afforded Glass no protection from flying debris.

Once the chain was attached, Gates backed the van several feet away from the two tractors in case rocks were propelled from underneath Smith’s tractor. Indeed, departmental guidelines required all work detail laborers to be at least 50 feet behind an operating tractor. As Glass was using his tractor in an effort to free Smith’s tractor from the ditch, Smith engaged the bush hog attached to his tractor, causing grass and dirt to fly into the air. However, according to a prisoner who was watching from the van, Gates was not supervising or paying attention to Smith or Glass at the time; consequently, Gates made no effort to instruct Smith to turn off his bush hog while being pulled. At that point, a rock flew out from underneath Smith’s bush hog and struck Glass in the throat. Glass began to bleed profusely and quickly lost consciousness.

Gates drove up to where Glass was located, exited from the van, and called 911 on his cell phone within a minute of the accident. Gates also called the work camp and reported what had occurred. He told the other prisoners on the work detail that “it was [his] fault” and that “he should have called back to the camp for a truck.” An ambulance arrived and transported Glass to the hospital, but he was pronounced dead later than morning.

At the time of Glass’s death, Troup County had a general liability insurance policy and an auto liability insurance policy in place, both of which provided liability coverage of up to $1,000,000 for certain occurrences. The parties dispute whether the policies provide coverage for the tractor and bush hog that Smith was operating.

Glass’s minor son and the executor of his estate commenced this wrongful death and survival action against Troup County and Gates, in his individual and official capacities, alleging that Glass’s injury and death were the result of negligence in the training of work detail supervisors, negligence in the supervision of work detail prisoners, and the negligent failure of Gates to comply with County policy. The plaintiffs also alleged that Smith’s operation of his tractor and bush hog was for the benefit and under the direction of the County, and thus that any negligence by him was attributable to the County as if he were an employee.

The plaintiffs maintained that the County had waived its sovereign immunity under OCGA § 33-24-51 through the purchase of the two liability insurance policies. They further claimed that Gates was not entitled to official immunity because he had failed to follow a specific County policy that imposed a ministerial duty upon him to contact the work camp and wait for the assistance of a truck when a tractor became stuck in a ditch. As a result, the plaintiffs contended that they could recover monetary damages from the County and Gates.

The defendants answered and later moved for summary judgment, contending that the undisputed evidence showed that the plaintiffs’ claims against the County were barred by sovereign immunity and that their claims against Gates were barred by official immunity. The trial court granted the motion.

In granting summary judgment to the County, the trial court reasoned that “in determining whether a county [has] waived its sovereign immunity under OCGA § 33-24-51 by purchasing liability insurance to cover personal injury arising out of the use of a motor vehicle, courts must look to the definition of motor vehicle as provided in [OCGA] § 36-92-1.” The trial court then held that any insurance purchased by the County that might cover the tractor or bush hog did not waive the County’s sovereign immunity under OCGA § 33-24-51 because neither a tractor nor a bush hog constitutes a “motor vehicle” under OCGA § 36-92-1.

In granting summary judgment to Gates, the trial court concluded that the undisputed evidence showed that he was entitled to official immunity. According to the trial court, the uncontroverted evidence showed that Gates was engaged in a discretionary act in supervising the work detail and did not act with actual malice; thus, official immunity shielded him from personal liability.

1. The plaintiffs contend that the trial court erred in granting summary judgment to the County on the ground that it had not waived its sovereign immunity under OCGA § 33-24-51. Specifically, the plaintiffs maintain that the trial court erred in concluding that the legislature intended for the definition of “motor vehicle” found in OCGA § 36-92-1 to apply to OCGA § 33-24-51. Instead, the plaintiffs argue that “motor vehicle” in OCGA § 33-24-51 should be construed more broadly to include tractors and bush hogs if the underlying liability insurance policies purchased by the County cover that type of equipment.

“Under our Constitution, Georgia counties enjoy sovereign immunity, and can be sued only if they have waived their immunity.” (Citations omitted.) Strength v. Lovett, 311 Ga. App. 35, 38 (1) (714 SE2d 723) (2011). See Ga. Const, of 1983, Art. I, Sec. II, Par. IX (e); OCGA § 36-1-4. “[SJovereign immunity is waived by any legislative act which specifically provides that sovereign immunity is waived and [describes] the extent of such waiver.” Gilbert v. Richardson, 264 Ga. 744, 748 (3) (452 SE2d 476) (1994). A waiver of sovereign immunity “must be established by the party seeking to benefit from the waiver.” (Citations and punctuation omitted.) Fulton-DeKalb Hosp. Auth. v. Walker, 216 Ga. App. 786, 788 (1) (456 SE2d 97) (1995).

OCGA § 33-24-51 meets the criteria for a statutory waiver of sovereign immunity. See Hewell v. Walton County, 292 Ga. App. 510, 512 (1) (664 SE2d 875) (2008). Subsection (a) of that statute provides:

A municipal corporation, a county, or any other political subdivision of this state is authorized in its discretion to secure and provide insurance to cover liability for damages on account of bodily injury or death resulting from bodily injury to any person or for damage to property of any person, or for both arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the municipal corporation, county, or any other political subdivision of this state under its management, control, or supervision, whether in a governmental undertaking or not, and to pay premiums for the insurance coverage.

(Emphasis supplied.) In its current form, subsection (b) of OCGA § 33-24-51 then provides that sovereign immunity is waived in two situations. The first sentence of subsection (b) provides that sovereign immunity is waived for losses arising out of claims for the negligent use of a “covered motor vehicle” as provided in OCGA § 36-92-2. The second sentence of subsection (b) provides that sovereign immunity is waived where a local government purchases insurance on “any motor vehicle” as authorized in subsection (a) of the statute, if the insurance covers “the negligence of any duly authorized officer, agent, servant, attorney, or employee in the performance of his or her official duties in an amount greater than the amount of immunity waived as in Code Section 36-92-2.” Given that the plaintiffs do not dispute that neither a tractor nor a bush hog constitutes a “covered motor vehicle” under the first sentence of subsection (b), we only address in this opinion whether a tractor or a bush hog constitutes “any motor vehicle,” the phrase from OCGA § 33-24-51 (a) applicable to the second sentence of subsection (b).

In Crider v. Zurich Ins. Co., 222 Ga. App. 177, 179-180 (2) (474 SE2d 89) (1996), we rejected the narrow definition of “motor vehicle” contained in Georgia’s automobile insurance statutes, concluding that a vehicle does not have to be designed primarily for use on public roads to constitute “any motor vehicle” under OCGA § 33-24-51. We concluded that a backhoe — which was capable of being driven on a public road but was primarily used for moving and lifting objects — constituted a “motor vehicle” under OCGA § 33-24-51, and that the county had waived its sovereign immunity pursuant to the statute by purchasing general liability insurance that covered the backhoe. Id.

Pursuant to Crider, we have held that “any motor vehicle” as used in OCGA § 33-24-51 refers to a vehicle that (1) is capable of being driven on the public roads and (2) is covered by a liability insurance policy purchased by the local government entity. See McDuffie v. Coweta County, 299 Ga. App. 500, 503 (1) (682 SE2d 609) (2009). Compare Pate v. Turner County, 162 Ga. App. 463, 463-464 (291 SE2d 400) (1982) (landfill compactor with metal wheels that required it to be driven on soil or dirt rather than a hard surface such as a road did not constitute a “motor vehicle” under predecessor statute to OCGA § 33-24-51). Applying this test, we have concluded that “any motor vehicle” as used in OCGA § 33-24-51 can include tractors with bush hogs attached to them if the relevant insurance policies cover those types of vehicles. See McDuffie, 299 Ga. App. at 503 (1) (tractor constituted a “motor vehicle” under OCGA § 33-24-51); Simmons v. Coweta County, 229 Ga. App. 550, 552 (a) (494 SE2d 362) (1997), rev’d in part on other grounds, Coweta County v. Simmons, 269 Ga. 694 (507 SE2d 440) (1998) (tractor with bush hog attached qualified as a “motor vehicle” under OCGA § 33-24-51). Cf. Williams v. Whitfield County, 289 Ga. App. 301, 303 (656 SE2d 584) (2008) (Caterpillar excavator qualified as “motor vehicle” under OCGA § 33-24-51). Therefore, under our precedent, “any motor vehicle” in OCGA § 33-24-51 is construed broadly to include tractors and bush hogs covered by a local government’s liability insurance policies. Any other result would mean that the local government entity had paid premiums for a liability insurance policy providing overly broad and unnecessary coverage.

However, the County argues that our precedent, which construed an earlier version of OCGA § 33-24-51 (b), has been super-ceded by the revisions to the statute in 2002, which became effective on January 1, 2005. See Ga. L. 2002, p. 579, §§ 1, 5. According to the County, these revisions reflect a legislative intent to apply the definition of “motor vehicle” found in OCGA § 36-92-1 (6) to the waiver of a local government’s sovereign immunity under the second sentence of OCGA § 33-24-51 (b) when it purchases insurance on “any motor vehicle” as authorized in OCGA § 33-24-51 (a). We are unpersuaded.

Before the 2002 revisions in sovereign immunity law, local governments could voluntarily waive their immunity by purchasing insurance coverage for motor vehicles “to the extent of the amount of insurance so purchased.” OCGA § 33-24-51 (b) (2001). There were no statutory provisions requiring local governments to purchase a certain amount of insurance or waive their immunity up to a certain specified limit, which meant that a plaintiffs recovery against a local government could vary from county to county depending on the insurance coverage purchased. Our Supreme Court decried this situation in Cameron v. Lang, 274 Ga. 122, 127 (3) (549 SE2d 341) (2001), and called for the legislature to act:

[T]he failure to require cities and counties to maintain liability insurance for the use of motor vehicles on official business has created inconsistent and often unfair results. The ability of a plaintiff to pierce the immunity of a government employer too often depends on the city or county’s decision to purchase liability insurance. . . . Due to the . . . choice of many local governments to forego purchasing liability insurance, we urge the legislature to remove the city and county’s discretion and require them to procure liability insurance for the operation of their vehicles.

Less than a year later, our legislature passed House Bill No. 1128, which revised several provisions of the Georgia Code, including OCGA § 33-24-51 (b), and added Chapter 92 to Title 36, entitled “Local Government Entities,” including OCGA §§ 36-92-1 and 36-92-2 (the “2002 Act”). See Ga. L. 2002, p. 579, § 1. See David Walker, Note, Peach Sheets, Insurance, 19 Ga. St. U. L. Rev. 243, 244-247 (2002). Chapter 92 creates a framework under which the sovereign immunity of local governments is mandatorily waived for the operation of their motor vehicles under certain specific circumstances.

OCGA § 36-92-1, created as part of the 2002 Act, defines the terms “[a]s used in this chapter,” i.e., Chapter 92 of Title 36. Among other terms, “motor vehicle” is defined as “any automobile, bus, motorcycle, truck, trailer, or semitrailer, including its equipment, and any other equipment permanently attached thereto, designed or licensed for use on the public streets, roads, and highways of the state.” OCGA § 36-92-1 (6). A “covered motor vehicle” is defined as any motor vehicle owned, leased, or rented by a local government entity. OCGA § 36-92-1 (2).

OCGA § 36-92-2, also created as part of the 2002 Act, sets certain monetary limits for the mandatory waiver of sovereign immunity by local government entities that vary based upon the date that the incident involving a “covered motor vehicle” occurred. The statute provides in relevant part:

(a) The sovereign immunity of local government entities for a loss arising out of claims for the negligent use of a covered motor vehicle is waived up to the following limits:
(1) $100,000.00 because of bodily injury or death of any one person in any one occurrence, an aggregate amount of $300,000.00 because of bodily injury or death of two or more persons in any one occurrence, and $50,000.00 because of injury to or destruction of property in any one occurrence, for incidents occurring on or after January 1, 2005, and until December 31, 2006;
(2) $250,000.00 because of bodily injury or death of any one person in any one occurrence, an aggregate amount of $450,000.00 because of bodily injury or death of two or more persons in any one occurrence, and $50,000.00 because of injury to or destruction of property in any one occurrence, for incidents occurring on or after January 1, 2007, and until December 31, 2007; and
(3) $500,000.00 because of bodily injury or death of any one person in any one occurrence, an aggregate amount of $700,000.00 because of bodily injury or death of two or more persons in any one occurrence, and $50,000.00 because of injury to or destruction of property in any one occurrence, for incidents occurring on or after January 1, 2008.
(b) The sovereign immunity of local government entities for a loss arising out of claims for the negligent use of a covered motor vehicle is waived only to the extent and in the manner provided in this chapter and only with respect to actions brought in the courts of this state. This chapter shall not be construed to affect any claim or cause of action otherwise permitted by law and for which the defense of sovereign immunity is not available.

(Emphasis supplied.)

Additionally, the 2002 Act left subsection (a) of OCGA § 33-24-51 intact but revised subsection (b) to add a new first sentence: “The sovereign immunity of local government entities for a loss arising out of claims for the negligent use of a covered motor vehicle is waived as provided in Code Section 36-92-2.” OCGA § 33-24-51 (b). Subsection (b) also was revised to state that immunity is waived when the amount of insurance purchased by the local government entity is “in an amount greater than the amount of immunity waived as in Code Section 36-92-2.”

In light of these revisions, we must determine whether the 2002 Act was intended by the legislature to change the definition of “any motor vehicle” found in OCGA § 33-24-51 (a), applicable to the waiver of sovereign immunity under the second sentence of OCGA § 33-24-51 (b), from the broad definition previously adopted by this Court to the more narrow definition found in OCGA § 36-92-1 (6). We begin by noting that under well-settled rules of statutory construction, “[w]hen the language of a statute is plain and unambiguous and not leading to an absurd result, it evidences the legislative intent which is not to be contravened.” Ga. Dept. of Transp. v. Evans, 269 Ga. 400, 401 (499 SE2d 321) (1998). In other words, “we always must presume that the General Assembly means what it says and says what it means.” Northeast Atlanta Bonding Co. v. State of Ga., 308 Ga. App. 573, 577 (1) (707 SE2d 921) (2011).

Here, the plain and unambiguous language of OCGA §§ 36-92-1 and 36-92-2 reflects that the definition of “motor vehicle” applicable to Chapter 92 of Title 36 was not intended to narrow the meaning of “any motor vehicle” found in OCGA § 33-24-51 (a). As previously noted, OCGA § 36-92-1 expressly states that it is defining terms “[a]s used in this chapter.” In turn, OCGA § 36-92-2 (b) expressly states that “[t]his chapter shall not be construed to affect any claim or cause of action otherwise permitted by law and for which the defense of sovereign immunity is not available.” In light of this plain and unambiguous statutory language, it is clear that — other than for losses arising out of claims for the negligent use of a “covered motor vehicle” under the first sentence of OCGA § 33-24-51 (b) — the legislature did not intend for Chapter 92 of Title 36, which necessarily includes the definition of “motor vehicle” found in OCGA § 36-92-1 (6), to “affect” OCGA § 33-24-51, which provides a cause of action “otherwise permitted by law . . . for which the defense of sovereign immunity is not available.” Any other reading of these statutory provisions would render the operative language in OCGA §§ 36-92-1 and 36-92-2 (b) mere surplusage, a result that clearly should be avoided. See Porter v. Food Giant, 198 Ga. App. 736, 738 (1) (402 SE2d 766) (1991) (“It is contrary to the generally accepted principles for construing statutes to ‘read out’ any part of the statute as ‘mere surplusage’ unless there is a clear reason for doing so.”).

Furthermore, the legislature demonstrated in enacting the 2002 Act that if it wanted the provisions of Chapter 92 of Title 36 to apply to a different statutory scheme to limit the liability of the local government entity, it knew how to do so. Specifically, included in the 2002 Act were revisions to OCGA § 40-6-6, which addresses the use of “authorized emergency vehicles.” See Ga. L. 2002, p. 579, § 4. OCGA § 40-6-6 was amended to include a new subsection that provides: “Claims arising out of this subsection which are brought against local government entities, their officers, agents, servants, attorneys, and employees shall be subject to the procedures and limitations contained in Chapter 92 of Title 36.” OCGA § 40-6-6 (d) (4). We regard the absence of a similar provision in OCGA § 33-24-51 (a) “as a deliberate matter of considered choice” by the legislature. Mauk v. Pioneer Ford Mercury, 308 Ga. App. 864, 866 (1) (709 SE2d 353) (2011).

Lastly, we note that “[i]n arriving at the intention of the legislature, it is appropriate for the court to look to the old law and the evil which the legislature sought to correct in enacting the new law and the remedy provided therefor.” (Citation and punctuation omitted.) State v. Mulkey, 252 Ga. 201, 204 (2) (312 SE2d 601) (1984). The 2002 Act expanded the circumstances in which the sovereign immunity of local government entities would be waived for incidents involving motor vehicles by enacting a new set of mandatory waiver provisions applicable regardless of whether insurance had been purchased. In this regard, the legislation was remedial in nature, aimed at ending the “inconsistent and often unfair results” pointed out by our Supreme Court in Cameron, 274 Ga. at 127 (3). It would be inconsistent with this remedial purpose to interpret the 2002 Act as constricting the scope of a local government’s waiver of immunity, which would be the case if we were to construe the 2002 Act as imposing the more restrictive definition of “motor vehicle” in OCGA § 36-92-1 (6) to the phrase “any motor vehicle,” which is found in OCGA § 33-24-51 (a) and applies to the second sentence of OCGA § 33-24-51 (b).

For these combined reasons, we conclude that the more restrictive definition of “motor vehicle” found in OCGA § 36-92-1 (6) should not be applied to affect claims under the second sentence of OCGA § 33-24-51 (b). Rather, our precedent, which holds that “any motor vehicle” as used in OCGA § 33-24-51 (a) means any vehicle that is capable of being driven on the public roads and is covered by a liability insurance policy purchased by the local government, remains good law after the 2002 revisions. As the rules of statutory construction dictate, “courts should construe statutes in connection and harmony with existing judicial decisions where possible.” Parker v. Lee, 259 Ga. 195, 198 (4) (378 SE2d 677) (1989). Our decision is consistent with this rule while at the same time honoring the intent of the legislature, as evidenced by the language, structure, and history of the 2002 Act.

The trial court therefore erred by granting summary judgment to the County on the ground that it had not waived its sovereign immunity under OCGA § 33-24-51. Because the trial court’s decision was predicated on the erroneous legal conclusion that “any motor vehicle” found in OCGA § 33-24-51 (a) and applicable to the second sentence of OCGA § 33-24-51 (b) was defined by OCGA § 36-92-1 (6), the court did not apply the proper test for determining whether the County waived its sovereign immunity with regard to the tractor and bush hog Smith was operating at the time of the accident. While the County did not contend that the tractor with attached bush hog was incapable of being driven on the public roads, the County did make a brief and summary argument in the trial court that its insurance policies did not cover tractors and bush hogs, and that issue has not been fully briefed by all parties on appeal. Under these circumstances, we vacate the grant of summary judgment to the County and remand for the trial court to consider in the first instance whether the terms and coverage provisions of the insurance policies purchased by the County covered the tractor and bush hog operated by Smith. See City of Gainesville v. Dodd, 275 Ga. 834, 838-839 (573 SE2d 369) (2002); United Healthcare of Ga. v. Ga. Dept. of Community Health, 293 Ga. App. 84, 92-93 (2) (d) (666 SE2d 472) (2008).

2. The plaintiffs also contend that the trial court erred in granting summary judgment to Gates on the claims brought against him in his individual capacity on the ground that he was shielded by official immunity. According to the plaintiffs, there is a genuine issue of material fact over whether the County had a departmental policy imposing a ministerial duty upon Gates to contact the work camp and request a service truck to be dispatched when a tractor became stuck.

“Official immunity is applicable to government officials and employees sued in their individual capacities.” (Citation and punctuation omitted.) Stone v. Taylor, 233 Ga. App. 886, 888 (2) (506 SE2d 161) (1998). Individual government employees are shielded by official immunity from damages suits unless the plaintiff can establish that the official negligently performed a ministerial act or performed a discretionary act with malice or an intent to injure. See Grammens v. Dollar, 287 Ga. 618, 619 (697 SE2d 775) (2010).

Undisputedly, Gates did not act with malice or an intent to injure; it follows that the plaintiffs’ claims are barred by official immunity unless they came forward with evidence that Gates negligently performed a ministerial act.

A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed. Whether the act of a public official is ministerial or discretionary is determined by the facts of each individual case, particularly the facts specifically relevant to the official’s act or omission from which the alleged liability arises.

(Citations and punctuation omitted.) Grammens, 287 Ga. at 619-620.

Here, a factual dispute exists over whether Gates was performing a ministerial or discretionary act. In this regard, the plaintiffs came forward with evidence reflecting the existence of a departmental policy with which Gates was required to comply when a tractor became stuck. Specifically, when questioned by an investigator from the Georgia Department of Corrections on the day after the accident, Gates told him that the “unwritten policy for pulling tractors that were stuck was to contact the facility and request they send the truck and the truck would be used to pull the tractor out.” During his deposition, Gates acknowledged that he had made this statement to the investigator.

Gates’s statement to the investigator, when construed in the light most favorable to the plaintiffs with all inferences drawn in their favor, would permit the conclusion that Gates had a ministerial duty imposed upon him. “Where there is an established policy requiring an official to take specified action in a specified situation, the policy creates a ministerial duty on the part of the official to perform the specified task.” Grammens, 287 Ga. at 620. The unwritten departmental policy, as described by Gates, required a work detail supervisor such as Gates to take specified action (call the work camp and request a service truck) in a specified situation (when a tractor became stuck). As reflected in Gates’s statement, the departmental policy did not require the work detail supervisor to exercise his judgment or discretion, but rather imposed a ministerial duty. See id. The fact that the policy was not in writing does not change this conclusion. See, e.g., Joyce v. Van Arsdale, 196 Ga. App. 95 (395 SE2d 275) (1990) (road superintendent’s actions in erecting road barricade were ministerial where county commission instructed him to erect barricade).

It is true that the defendants presented evidence that Gates had discretion over whether to contact the work camp and request a service truck, including testimony from the warden and Gates to this effect during their respective depositions. But Gates’s prior inconsistent statement to the investigator constituted substantive evidence, thereby creating a factual dispute over whether a ministerial duty had been imposed upon Gates. See Lanier Home Center v. Underwood, 252 Ga. App. 745, 749-750 (5) (557 SE2d 76) (2001).

Decided September 1, 2011

Michael L. Neff, George B. Spears, for appellants.

Willis, McKenzie, DeGennaro & Alford, Mark L. DeGennaro, Freeman, Mathis & Gary, Donald J. Grate, Joshua B. Portnoy, Weinberg, Wheeler, Hudgins, Gunn & Dial, John K. Train TV, for appellees.

The defendants rely upon Parrish v. State of Ga., 270 Ga. 878 (514 SE2d 834) (1999), which held that a supervisor of a prison work detail was exercising a discretionary function entitling him to official immunity. The facts of Parrish, however, are readily distinguishable from the present case. In Parrish, the plaintiff victim was assaulted by two prisoners who had escaped from a work detail. As pointed out in the Court of Appeals’ decision before the grant of certiorari to our Supreme Court, the plaintiff relied upon state regulations requiring an officer to keep medium security prisoners “under constant supervision when they are outside the prison” in arguing that the officer who had supervised the escaped prisoners had breached a ministerial duty. See Parrish v. Akins, 233 Ga. App. 442, 443 (1) (504 SE2d 276) (1998). As our Supreme Court indicated, a correctional officer was required to exercise discretion in carrying out such a generalized duty, and thus could not be said to be performing a mere ministerial function. See Parrish, 270 Ga. at 879-880. Such a generalized duty, however, is a far cry from the specific departmental policy described by Gates in the present case.

In sum, we conclude that a genuine issue of material fact exists over whether the County had an established departmental policy requiring Gates to contact the work camp and request a service truck when a tractor became stuck. A jury must resolve this factual issue, and then the trial court can determine whether Gates’s acts were discretionary or ministerial in nature, and thus whether he is entitled to official immunity. See Nichols, 286 Ga. App. at 896 (4). Therefore, we reverse the trial court’s grant of summary judgment to Gates on the claims brought against him in his individual capacity.

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

Adams and Blackwell, JJ., concur.

       In his deposition, Gates testified that he first made several attempts to contact the work camp on his cell phone, but was unsuccessful in doing so because of the remoteness of the location of the work detail. However, the plaintiffs presented evidence calling into question the credibility of Gates’s testimony, including evidence, discussed infra, that Gates was able to use his cell phone immediately after the accident occurred to successfully contact the work camp and later made an admission to other prisoners that he should have called the camp and requested a service truck. Accordingly, there was a genuine issue of material fact over whether Gates attempted to contact the work camp and request a service truck before instructing Glass and Smith to free the tractor themselves.

       The defendants contend that the evidence shows that Glass gestured with his hands for Smith to turn on his bush hog as he was being pulled, and that Glass’s gesture constituted an intervening act that superseded any negligence by Gates. But the plaintiffs presented the affidavit of another prisoner on the work detail reflecting that Smith made the decision on his own to turn on his bush hog because he wanted to go ahead and cut the grass in the ditch. Consequently, a genuine issue of material fact exists over whether Glass gestured for Smith to turn on his bush hog.

       The plaintiffs’ claims against Gates in his official capacity are considered claims against the County. See Gilbert v. Richardson, 264 Ga. 744, 746 (2), n. 4 (452 SE2d 476) (1994). Hence, if the claims against the County are barred by sovereign immunity, the claims against Gates in his official capacity are likewise barred.

       The plaintiffs do not dispute that neither a tractor nor a bush hog constitutes a “motor vehicle” as defined in OCGA § 36-92-1.

       In Hewell, 292 Ga. App. at 512-513 (1), we concluded that the plaintiff had sufficiently pled that a portable tar kettle machine was a “motor vehicle” under the current version of OCGA § 33-24-51 (b) to survive the defendant’s motion for judgment on the pleadings. In reaching this conclusion, we cited, without elaboration, both to the definition of “motor vehicle” in OCGA § 36-92-1 (6) and to our precedent defining that term under the earlier version of the statute. See id. at 513 (1). Because the portable tar kettle machine constituted a “motor vehicle” under either definition given the allegations of the complaint, we did not address or resolve whether the definition of “motor vehicle” in OCGA § 36-92-1 (6) had to be met for a waiver to occur under the second sentence of OCGA § 33-24-51 (b).

       The former version of subsection (b) provided in relevant part:
      Whenever a municipal corporation, a county, or any other political subdivision of this state shall purchase the insurance authorized by subsection (a) of this Code section to provide liability coverage for the negligence of any duly authorized officer, agent, servant, attorney, or employee in the performance of his official duties, its governmental immunity shall be waived to the extent of the amount of insurance so purchased.
      OCGA § 33-24-51 (b) (2001).


text:
    A11A1199.
    THE STATE v. WOODS et al.
    (716 SE2d 622)
   McFadden, Judge.

The state appeals the grant of Adrian Woods and Katherine Lee’s motion to suppress. The state argues that neither Woods nor Lee had standing to object to the search of the motel room and the safe in which the police found cocaine; that as to Lee, the evidence should be admitted under the inevitable discovery rule; and that Woods validly consented to the searches at issue. We conclude that both Woods and Lee had a reasonable expectation of privacy in the room and the safe, so that they both have standing to object to the search. We find that the state cannot raise the inevitable discovery argument on appeal because it did not raise such an argument before the trial court. We also find that Woods’s consent was not valid. We therefore affirm the trial court’s grant of the motion to suppress.

We accept a trial court’s ruling on disputed facts and credibility at a suppression hearing unless the ruling is clearly erroneous. See State v. Palmer, 285 Ga. 75, 79 (673 SE2d 237) (2009). Where the facts are not in dispute, we owe no deference to the trial court’s ruling and review the ruling de novo. Id.

Six police officers, including Officer Tommy Grier, the state’s only witness at the suppression hearing, went to a motel to execute a warrant for the arrest of Lee on aggravated assault charges. The officers went to the room listed on the warrant, but it was unoccupied. Grier testified that the manager said that Lee was staying in Room 214. Neither Woods nor Lee, however, was on the registry for the room. In fact, the room was registered to Lee’s sister. At the hearing, the manager testified that he did not know whether Lee, a long-term resident of the motel, was staying in Room 214, but he suspected it.

The officers went to Room 214 and knocked on the door. At least one of the officers had his weapon drawn. Woods opened the door. The officers asked Woods if Lee was in the room, and he said no. They asked if they could enter the room to look for her, and Woods gave permission. As they were completing the search, a passerby mentioned that Lee was in Room 306. Most of the officers left the room, but one or two stayed with Woods to make sure he did not call Lee to warn her of the officers’ arrival. At this point, the officers in the room holstered their guns.

The officers found Lee in a room on the next level of the motel and took her into custody. Ten to fifteen minutes later, Grier returned to Room 214 to speak with Woods. As he was walking into the room, another officer with Grier’s unit, Officer Benjamin Griggs, recognized Woods and identified him by his street name, Blue. Griggs said that Woods had just been released from prison where he had been incarcerated for cocaine trafficking. Grier confirmed this information with Woods and began asking him questions. Woods told Grier that he had nothing illegal in the room, that clothes hanging next to the sink were his, and that he stayed in the room. Grier then asked Woods for permission to search the room. Woods consented.

The officers began searching the room. In a drawer, they found men’s underwear and socks, which Woods identified as his. They also found a picture of Woods and his son and his paperwork, including a check stub. The officers asked Woods what was in the room safe. Woods responded, “I don’t know what’s in the safe, but it ain’t mine.” Grier asked Woods if he could search the safe, and Woods responded, “Go ahead. But I don’t know the combination.” Grier retrieved a device for opening the safe from the manager’s office. As Grier walked by, the officer who was detaining Lee told Grier that Lee had admitted that there was marijuana and crack in the safe and that it was hers.

Grier returned to the room, opened the safe and found crack cocaine and drug paraphernalia inside. Grier then arrested Woods. At some point, Woods consented to a search of his car.

The trial court ruled that Woods and Lee had standing to challenge the search of Room 214 because Lee was a resident and Woods was Lee’s frequent overnight guest and kept personal items there. The court then ruled that the officers had no reason to detain Woods once they determined Lee was not in the room or at least once they had arrested her. Either way, the court held, the encounter between Woods and the police never de-escalated to a first-tier encounter, so his consent to search the room, the safe and his car was not voluntary.

1. The state raises three arguments as to why the trial court erred in suppressing the use of the evidence against Lee.

(a) First, the state argues that the trial court’s finding that Lee was a resident of the motel room, and therefore had standing to object to the search, is not supported by competent evidence. It elaborates that the testimony that Lee was staying in Room 214 is hearsay.

Grier testified that the manager told the police that Lee was staying in Room 214. And the manager testified at the hearing that he suspected Lee was staying there, and that Lee and Tramell, Lee’s sister and the registered guest, had stayed together before. To the extent the state argues that Grier’s testimony was not competent because it was hearsay, we disagree. “As long as the declarant testifies . . . and is available for cross-examination . . . , the purpose behind the hearsay rule is satisfied with regard to his declarations.” (Footnote omitted.) Conley v. State, 257 Ga. App. 563, 564 (1) (571 SE2d 554) (2002). Because the manager testified and was available for cross-examination, Grier’s testimony about what the manager said was admissible. Id.; Penland v. State, 258 Ga. App. 659, 662 (3) (574 SE2d 880) (2002). The state also argues that the manager’s testimony that Lee and Tramell, the registered guest, are sisters is inadmissible hearsay. “Where a witness testifies to a conclusion of fact which could be within his knowledge and such testimony is admitted without objection, it cannot be attacked on review as being incompetent or insufficient.” (Citation and punctuation omitted.) Willingham v. State, 296 Ga. App. 89, 90 (673 SE2d 606) (2009). See also Floyd v. State, 100 Ga. App. 453 (1) (112 SE2d 171) (1959) (“Unless it affirmatively appears that evidence is hearsay, and where it is of such a nature that it is possible for the witness who testifies thereto to personally know thereof, it ought not to be excluded.”). It does not affirmatively appear that the manager’s testimony was based on hearsay rather than personal knowledge, and during the hearing the state did not contest the fact that Lee and Tramell are sisters.

In any event, when the trial court sits as the finder of fact, we presume that the trial court “separated admissible evidence from inadmissible evidence and considered only the former in reaching its judgment.” (Footnote omitted.) Watson v. State, 274 Ga. 689, 691 (3) (558 SE2d 704) (2002).

Given the hearing testimony, the trial court’s ruling that Lee had standing to object to the search because she was a resident of the room is not clearly erroneous.

(b) The state argues that even if the detention of Woods was illegal, that does not require the suppression of the evidence from the safe as to Lee because she cannot vicariously assert a violation of Woods’s Fourth Amendment rights. See OCGA § 17-5-30 (a) (1) (“A defendant aggrieved by an unlawful search and seizure may move the court ... to suppress as evidence anything so obtained on the grounds that . . . [t]he search and seizure without a warrant was illegal.”). This is merely another way of arguing that Lee lacks standing to challenge the search of the safe. See State v. Carter, 299 Ga. App. 3, 5-6 (681 SE2d 688) (2009). But because Lee was staying in the room, she had a reasonable expectation of privacy in the room and the safe within it, and can assert that she was aggrieved by the search within the meaning of OCGA § 17-5-30 (a) and the Fourth Amendment. Id. at 5. See also Brown v. State, 288 Ga. 404, 407 (2) (703 SE2d 624) (2010) (holding that consent to search premises includes consent to search washing machine on those premises).

(c) The state argues that the evidence was admissible under the inevitable discovery rule, given that the officers would have sought a warrant because of Lee’s admission that the drugs were hers. See Cunningham v. State, 284 Ga. App. 739, 741 (644 SE2d 878) (2007) (“Under the inevitable discovery doctrine, if the [s]tate shows by a preponderance of the evidence that illegally obtained evidence would have been discovered inevitably by lawful means, the evidence is admissible.”)- But the state did not make this argument in the trial court, and the trial court made no ruling on an inevitable discovery theory. “It is well settled that a reason urged by enumeration of error on appeal which is different from that urged below will not be considered for the first time on appeal.” (Punctuation and footnote omitted.) Milton v. State, 252 Ga. App. 149, 150 (555 SE2d 818) (2001). Because we are limited to reviewing only those grounds addressed by the trial court, the state’s enumeration of a ground entirely different from the grounds it raised below presents nothing for our consideration. Id.

2. The state raises three arguments as to why the trial court should have denied Woods’s motion to suppress.

(a) First the state argues that the evidence shows that Woods was merely a visitor to the motel room and therefore lacked a reasonable expectation of privacy warranting standing to challenge the search of the room. See Watkins v. State, 285 Ga. 107, 108 (2) (674 SE2d 275) (2009). It points to the facts that Woods was not the registered guest of the room, he had no key, and he had only Lee’s permission to sleep there.

Given the evidence that Woods stayed in the room and had belongings there, the trial court’s ruling that Woods had an expectation of privacy in the room is not clearly erroneous. “Even though the hotel room was not registered in [Woods’s] name, because [he] occupied the hotel room as an overnight guest, he had a constitutionally protected reasonable expectation of privacy in the room.” (Citation omitted.) Snider v. State, 292 Ga. App. 180, 182 (663 SE2d 805) (2008). Compare Smith v. State, 284 Ga. 17, 21 (3) (663 SE2d 142) (2008) (because defendant was not an overnight guest of the registered guest, did not have a key to the room, and had no luggage in the room, he had no expectation of privacy in the room).

(b) The state argues that Woods abandoned any interest in the safe and therefore lacked any expectation of privacy in it.

The question of abandonment for Fourth Amendment purposes turns on whether under the totality of the circumstances, the investigating officer reasonably believed at the time of the search that the accused had relinquished his interest in the property to such an extent that he no longer had a reasonable expectation of privacy in it.

(Citations omitted.) State v. Browning, 209 Ga. App. 197, 197-198 (1) (433 SE2d 119) (1993).

Grier’s asking for permission to search the safe indicates that he did not believe Woods had relinquished his interest in it. Indeed, Grier testified that he believed Woods had authority to consent to a search of the safe. On this evidence, the trial court’s denial of the state’s claim of abandonment, implicit in its finding that Woods consented to the search of the safe, see Smith v. State, 264 Ga. 87, 87-88 (2) (441 SE2d 241) (1994), is not erroneous.

(c) The state argues that Woods validly consented to the searches. In order to prove valid consent, the state must prove both that the consent was voluntary and that it did not result from an illegal detention. Pledger v. State, 257 Ga. App. 794, 797 (572 SE2d 348) (2002). Focusing on the detention component, the state contends that once most of the officers left the motel room to arrest Lee and the remaining officer or officers holstered their weapons, the situation de-escalated to a first-tier encounter with no Fourth Amendment implications. In any event, the state argues, the officers could ask Woods for his consent even if their encounter had not de-escalated to a first-tier encounter.

Police-citizen encounters fall into three categories: “(1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief ‘seizures’ that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.” (Citation omitted.) State v. Davis, 206 Ga. App. 238 (424 SE2d 878) (1992). The state does not argue that the police had a reasonable, articulable suspicion of Woods engaging in criminal activity that would justify a second-tier seizure after Lee was arrested. Nor does it argue that police had probable cause to justify a third-tier arrest. Instead, the state argues that the initial encounter de-escalated to a first-tier encounter. The issue, then, is whether, at the time he consented, the encounter between Woods and the police was a first-tier encounter with no Fourth Amendment implications or whether it was a second- or third-tier encounter for which the police needed — but did not have — reasonable suspicion or probable cause.

To determine whether the encounter de-escalated, we “must look to the totality of the circumstances in determining whether a reasonable person would have felt free” to end the interaction with police. (Citations and punctuation omitted.) State v. McMichael, 276 Ga. App. 735, 737 (1) (624 SE2d 212) (2005). Some of the factors a court may consider to determine whether a police-citizen encounter has de-escalated from a second- or third-tier encounter to a first-tier encounter include

whether there was a clear and expressed endpoint to any such prior detention; the character of police presence and conduct in the encounter under review (for example — the number of officers, whether they were uniformed, whether police isolated subjects, physically touched them or directed their movement, the content or manner of interrogatories or statements, and “excesses” factors stressed by the United States Supreme Court); geographic, temporal and environmental elements associated with the encounter; and the presence or absence of express advice that the citizen-subject was free to decline the request for consent to search. In general, a full examination must be undertaken of all coercive aspects of the police-citizen interaction.

(Citation omitted.) Id. at 737-738.

There is no evidence indicating that the detention of Woods de-escalated to a first-tier encounter once the police had arrested Lee, as the state contends. There was no clear endpoint to the initial detention that would indicate to Woods that he was free to end the interaction with the police; once Lee was arrested, nothing changed except that more officers entered the motel room and began questioning Woods. Further, the encounter continued in the place it began, Woods’s motel room. Finally, there is no evidence that the police advised Woods that he was free to decline the request for consent to search. Under these circumstances, we conclude that the trial court did not err in finding that the encounter did not de-escalate.

The state points to the fact that the officers had holstered their weapons, but Grier’s testimony was that they holstered their weapons before they arrested Lee but while Woods was detained to prevent his contacting her. “The absence of certain coercive factors at the time of the additional questioning is not persuasive where those factors were absent at the time of the initial seizure.” Daniel v. State, 277 Ga. 840, 843 (2), n. 2 (597 SE2d 116) (2004), overruled in part on other grounds, Salmeron v. State, 280 Ga. 735, 736-738 (1) (632 SE2d 645) (2006).

Similarly, the state argues that once most of the officers left the room, the encounter de-escalated. But even once most of the officers left the room, the remaining officer or officers detained Woods to prevent his contacting Lee, so the departure of some of them did not de-escalate the encounter to a first-tier encounter. And because the state had neither a reasonable, articulable suspicion of Woods engaging in criminal activity that would justify a second-tier seizure nor probable cause to justify an arrest, the detention was illegal. Because the state did not prove that Woods’s consent did not result from an illegal detention, it cannot justify the warrantless search on the ground of consent. Pledger, supra at 800.

Decided September 1, 2011

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Kenya K. Johnson, Assistant District Attorneys, for appellant.

Larry D. Wolfe, Dennis C. Francis, Jr., for appellees.

The state also argues that Woods’s detention was justified because the police saw a small amount of smoked marijuana in an ashtray when they first entered the room. Grier’s testimony does not indicate when the officers saw the marijuana. And his testimony makes clear that the officers did not rely on the discovery of the marijuana to detain Woods. Indeed, in its closing argument, the state asserted that the police saw the marijuana while Woods was being detained after Woods had given his consent to search the room. Post-seizure events cannot justify, after the fact, a detention that was unreasonable when it occurred. See Norton v. State, 283 Ga. App. 790, 793-794 (2) (643 SE2d 278) (2007); State v. Combs, 191 Ga. App. 625, 628 (2) (382 SE2d 691) (1989) (physical precedent only).

Judgment affirmed.

Phipps, P J., and Andrews, J., concur.


author: Doyle, Judge.

text:
    A11A0829.
    SAYANI v. THE STATE.
    (716 SE2d 629)
   Doyle, Judge.

Shaukat Sayani, who stands accused of aggravated assault and other offenses, appeals from an order denying his motion to dismiss the indictment due to the State’s delay in bringing the case to trial. Because the trial court denied the motion based on a legal error, we vacate the judgment and remand the case for the trial court to apply the appropriate test under a correct legal analysis.

The record shows that in November 2006, Sayani allegedly assaulted and threatened Gita Mandel with a knife, held her against her will, and stole her cell phone. On December 26, 2006, Sayani was arrested for the alleged offenses, and the investigation of the crimes concluded in January 2007. In April 2009, the State indicted Sayani, and following the recusal of a trial judge and the reassignment of the case, Sayani waived arraignment in January 2010. Sayani moved to dismiss the indictment in March 2010, and following a hearing, the trial court denied the motion in September 2010.

Under Barker v. Wingo and Doggett v. United States,

[a]n alleged denial of the right of an accused under the Sixth Amendment to the United States Constitution to a speedy trial in a criminal prosecution requires a two-stage analysis. In the first stage of the analysis, the court must determine whether the pretrial delay is sufficiently long to be considered [no longer ordinary but] “presumptively prejudicial.” The pretrial delay is measured from the accused’s arrest, indictment, or other formal accusation to the trial or, if the accused files a motion to dismiss the indictment, until the trial court denies the motion. If the delay has passed the point of presumptive prejudice, the court must proceed to the second step of the Barker-Doggett analysis, which requires the application of a delicate, context-sensitive, four-factor balancing test to determine whether the accused has been deprived of the right to a speedy trial.

The Barker-Doggett test involves a balancing of the following four factors: “(1) whether the delay before trial was uncommonly long, (2) whether the government or the criminal defendant is more to blame for that delay, (3) whether, in due course, the defendant asserted the right to a speedy trial, and (4) whether he or she suffered prejudice as the delay’s result.” We review a trial court’s ruling on a motion to dismiss an indictment on speedy trial grounds for an abuse of discretion.

Here, as correctly pointed out by Sayani, the interval between his December 2006 arrest and the September 2010 denial of his motion to dismiss was 45 months. Nevertheless, the trial court focused its analysis on the 30-month interval between the alleged offense and the indictment. Although it is undisputed that either interval would, as a threshold matter, raise a presumption of prejudice sufficient to trigger the Barker-Doggett balancing test, the trial court erroneously applied the four factors to the 30-month interval. Because the four-factor test necessarily requires the trial court to carefully balance each factor, we cannot ignore the trial court’s legal error or independently determine how the trial court would have exercised its discretion based on a correct application of law. We note that Sayani was not incarcerated during the delay nor did he point to specific evidence that became unavailable to him. Nevertheless, a defendant is not necessarily required to

Decided September 6, 2011.

Bruce S. Harvey, for appellant.

Robert D. James, Jr., District Attorney, William M. Clark, Assistant District Attorney, for appellee.

show demonstrable prejudice to prevail on a speedy trial claim. Because of the difficulty of proving specific prejudice due to the passage of time, [as] the United States Supreme Court has explained [in Doggett], excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker[-Doggett] criteria, it is part of the mix of relevant facts, and its importance increases with the length of delay.

In light of the trial court’s legal error in weighing the Barker-Doggett factors, we “remand the case to the trial court for it to exercise its discretion using adequately supported factual findings and the correct legal analysis.”

Judgment vacated and case remanded with direction.

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

       407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972).

       505 U. S. 647 (112 SC 2686, 120 LE2d 520) (1992).

       See State v. White, 282 Ga. 859, 861 (2) (a) (655 SE2d 575) (2008) (“The constitutional right to a speedy trial attaches on the date of the arrest or when formal charges are initiated, whichever first occurs.”).

       (Citations and punctuation omitted; emphasis supplied.) West v. State, 295 Ga. App. 15, 15-16 (670 SE2d 833) (2008).

       (Punctuation omitted.) Id. at 16 (B).

       See id. at 17 (B).

       The State did not file an appellate brief.

       See Ruffin v. State, 284 Ga. 52, 55 (2) (a) (663 SE2d 189) (2008) (a delay approaching one year is generally deemed to be presumptively prejudicial).

       See, e.g., State v. Pickett, 288 Ga. 674, 678-679 (2) (d) (706 SE2d 561) (2011) (“the Court of Appeals erred in failing to remand the case to the trial court for it to exercise its discretion using adequately supported factual findings and the correct legal analysis”).

       Id. at 677 (2) (c) (4).

       Id. at 679 (2) (d). See also State v. Thaxton, 311 Ga. App. 260 (715 SE2d 480) (2011) (remanding for entry of proper order consistent with the Barker-Doggett balancing test).


author: Andrews, Judge.

text:
    A11A0989.
    HART et al. v. GROVES.
    (716 SE2d 631)
   Andrews, Judge.

Tara Groves filed a legal malpractice suit against her former attorney, Scott A. I. Hart, and his professional corporation, Scott A. I. Hart, EC. (collectively referred to as Hart). A jury rendered a verdict in favor of Groves for $78,033, and Hart appeals. For the following reasons, we affirm.

Groves was injured in an automobile accident and hired Hart to represent her on a personal injury claim against the driver of the other automobile. Shortly after Hart filed suit on behalf of Groves, the suit settled for the $25,000 liability limit in the other driver’s automobile insurance policy. Hart was aware that Groves also had a potential claim on up to $275,000 of underinsured motorist coverage provided in her own automobile insurance policy based on the difference between the $300,000 limits of uninsured motorist coverage in her policy and the $25,000 limits of liability paid by the other driver’s policy. Nevertheless, Hart failed to insist that Groves sign a limited release to settle the suit to preserve the underinsured motorist claim. Instead, Hart advised Groves to settle the suit by signing a general release, and then dismissed the suit. Hart admitted that his actions were negligent because they had the effect of extinguishing Groves’s potential claim for underinsured motorist benefits. At trial, Groves presented evidence that she incurred medical expenses as a result of the accident in excess of the $25,000 liability limits paid under the other driver’s policy, and claimed that she was damaged by Hart’s negligence to the extent that she lost underinsured motorist coverage she would otherwise have had for those expenses. Hart’s defense at tried was that Groves was not damaged as a proximate result of his negligence because she failed to prove that all her claimed medical expenses were for injuries caused by the accident, and failed to prove that she would have recovered underinsured motorist benefits but for his negligence.

1. Hart claims that the trial court erred by failing to allow him to present evidence that about $34,000 of disability insurance Groves received for inability to work as a result of the accident reduced the amount of underinsured motorist benefits she would have been entitled to recover under her policy. Pretermitting whether this evidence would have been admissible, we find no basis in the record for Hart’s claim that the trial court failed to allow or prevented him from introducing the evidence. Although counsel for both parties made arguments to the trial court prior to and during the trial about the admissibility of this evidence, the trial court never ruled on the admissibility of the evidence or to exclude the evidence. “This is a Court for correction of errors below, and, in the absence of a ruling by the trial court, this Court has nothing to review.” Williams v. Resurgens cfee. Orthopaedists, 267 Ga. App. 578, 580 (600 SE2d 378) (2004). It is counsel’s duty to obtain a ruling on the admissibility of evidence, and the failure to do so results in a waiver. Id.

2. Hart claims the trial court erred by overruling his objection to admission of an e-mail from Groves to Hart on the basis that it contained inadmissible hearsay. Hart objected that Groves’s e-mail contained hearsay because it included a statement made to Groves by her neurologist regarding the nature of a cervical injury she claimed to have suffered as a result of the accident. In response to the objection, Groves argued that the alleged hearsay statement had a relevant nonhearsay use in that it was offered, not to prove the truth of the matter asserted, but to explain conduct — that after Hart received the e-mail, he contacted Groves’s uninsured motorist carrier to inquire about the additional coverage under her policy. The trial court did not abuse its discretion in overruling the hearsay objection and admitting the e-mail as original evidence explaining Hart’s conduct. Buttles v. State, 229 Ga. App. 300, 302-303 (494 SE2d 73) (1997). Moreover, even if the e-mail contained hearsay, its admission was harmless because it was cumulative of other evidence from Groves and the neurosurgeon who performed surgery on the cervical injury as to the nature and extent of that injury. Id. at 303.

Decided September 6, 2011.

Warren R. Hinds, for appellants.

Tara Groves, pro se.

Judgment affirmed.

Phipps, P. J., and McFadden, J., concur.

       Groves’s pro se motion for imposition of sanctions for a frivolous appeal is denied.


author: BARNES, Presiding Judge. BLACKWELL, Judge,

text:
    A11A0895.
    WAGNER v. THE STATE.
    (716 SE2d 633)
   BARNES, Presiding Judge.

A jury convicted James D. Wagner of driving under the influence of alcohol to the extent it was less safe for him to drive (“DUI — Less Safe”) and of child endangerment for driving with a child in the car while under the influence of alcohol (“DUI — Child Endangerment”). The trial court subsequently denied his motion for a new trial. On appeal, Wagner contends that the trial court committed reversible error by instructing the jury that it could infer, from his refusal to take a State-administered breath test, that the test would have shown the presence of alcohol “which impaired his driving.” While Wagner did not specifically object to the instruction at the conclusion of the jury charge, we conclude that the instruction constituted plain error. Therefore, we must reverse his convictions and remand for a new trial.

Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to the jury’s verdict. Vadde v. State, 296 Ga. App. 405 (674 SE2d 323) (2009). So viewed, the evidence showed that on the evening of October 3, 2008, a customer was in her car waiting in the drive-through lane of a fast food restaurant in Cobb County. While waiting, she saw a four-year-old child run from the restaurant into the parking lot. The customer was concerned that the child might get struck by a vehicle. Another customer who saw the child running in the parking lot let out a “blood-curdling scream.” At that point, the child stopped just as a car was nearing him and fell backward. The customer in the drive-through lane was unsure whether the child had been hit by the car or simply fell down.

After the child fell backward, the customer observed Wagner exit from the restaurant, pick up the child, and put the child into his vehicle. The manager of the restaurant followed Wagner outside and tried to get him to stop so that he could make sure the child was okay. However, after placing the child into his vehicle, Wagner drove away.

After leaving the restaurant parking lot, the customer who had witnessed the incident began following Wagner’s vehicle. While following the vehicle, the customer described Wagner’s driving as “Lejrratic to the point where I think, he knew I was following him and he didn’t want me there.” Wagner proceeded to a nearby park where he stopped his vehicle, and the customer called 911. Wagner then left the park area in his vehicle, and the customer continued to follow him.

The customer followed Wagner to another parking lot near a car wash, where Wagner parked his car. Responding to the 911 call, a police officer arrived on the scene shortly thereafter and approached Wagner, who at that point was standing at the rear of his vehicle. The officer noted that the tag number on the vehicle matched the tag number that had been given in the 911 call. The officer also observed that the child was still in Wagner’s vehicle, and a second officer arrived on the scene and spoke with the child and with the customer who had followed Wagner to the parking lot.

The first responding officer then asked Wagner why he was parked there. Wagner said that he had been eating at the fast food restaurant but left and then stopped in this parking lot because he felt “threatened.” While speaking with Wagner, the officer noticed a strong odor of alcoholic beverage coming from his mouth. The officer further observed that Wagner’s speech was “slow and labored,” that his eyes were “glossy and red,” and that he appeared “somewhat disoriented.” Wagner told the officer that he had consumed one alcoholic beverage. The officer requested that Wagner take an alco-sensor breath test, but he refused.

Wagner thereafter submitted to a series of field sobriety evaluations, but pointed out to the officer that he only had one contact lens in at the time. The officer conducted the horizontal gaze nystagmus test, and Wagner exhibited six out of six clues for possible impairment. On the walk and turn test, he exhibited three out of eight clues of possible impairment. In contrast, Wagner exhibited no clues of impairment on the one-legged stand test and accurately recited the alphabet from E to X as instructed by the officer. Wagner also exhibited no signs of vertical gaze nystagmus.

Believing that Wagner had been driving under the influence of alcohol and was a less-safe driver, the officer placed Wagner under arrest. After being taken into custody, Wagner refused to take a State-administered breath test upon hearing the implied consent warning.

Wagner was charged by accusation with DUI — Less Safe and DUI — Child Endangerment. At the ensuing jury trial, the restaurant customer who had followed Wagner and the first responding officer testified to the events as set out above. The State also introduced into evidence and played for the jury two audio recordings of 911 calls made about the restaurant incident and a video recording of the traffic stop.

1. Although not enumerated as error, we conclude that the evidence was sufficient for a rational jury to find Wagner guilty beyond a reasonable doubt of the charged offenses. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See OCGA § 40-6-391 (a) (1), (1)

2. Wagner contends that the trial court improperly instructed the jury about the inference that could be drawn from his refusal to submit to a State-administered breath test. The trial court instructed the jury:

I charge you that in any criminal trial, the refusal of the defendant to permit a chemical analysis to be made of his blood, breath, urine or other bodily substances at the time of his arrest shall be admissible as evidence against him. I further charge you that the refusal itself may be considered as positive evidence, creating an inference that the test would show the presence of alcohol or other prohibited substances which impair his driving-, however, such an inference may be rebutted.

(Emphasis supplied.)

In Baird v. State, 260 Ga. App. 661, 662-664 (1) (580 SE2d 650) (2003), we disapproved of this jury instruction. We concluded that the inclusion of the phrase “which impaired his driving” improperly authorized the jury to infer not only that the test would have shown the presence of alcohol in the defendant’s body, but also that the alcohol impaired his driving. Id. at 663 (1). “The jury instruction, therefore, invaded the province of the jury and shifted the burden of proof to the defendant, forcing him to present evidence to rebut the inference. Duelmer v. State, 265 Ga. App. 342, 342-343 (593 SE2d 878) (2004).

The State does not dispute that the challenged jury instruction was erroneous but argues that Wagner waived any challenge to the charge by failing to specifically object after the trial court gave it. See OCGA § 17-8-58 (b). However, a substantial error in the jury charge affecting the burden of proof constitutes plain error and is not waived on appeal. See In the Interest of A. S., 293 Ga. App. 710, 713 (2) (667 SE2d 701) (2008); Jones v. State, 252 Ga. App. 332, 334 (2) (a) (556 SE2d 238) (2001). See OCGA §§ 17-8-58 (b); 5-5-24 (c). And, as noted above, the instruction disapproved in Baird and charged to the jury in this case substantially affected the State’s burden of proof by shifting it to Wagner, requiring him to rebut the inference that he was an impaired driver because he refused to submit to the breath test. See Duelmer, 265 Ga. App. at 342-343. Consequently, we conclude that the giving of the challenged jury instruction constituted plain error and thus was not waived by Wagner’s failure to raise a specific objection in the trial court.

The State also argues that the giving of the instruction did not rise to the level of plain error because other portions of the charge purportedly eliminated any reasonable likelihood that the jury believed that Wagner’s refusal to take the test was sufficient to prove that he was impaired. In this regard, the State emphasizes that other portions of the jury charge generally informed the jury that the State carries the burden of proving every essential element of the charged offenses and that the burden never shifts to the defendant to prove his innocence. But we have previously held that generalized instructions concerning the burden of proof “are insufficient to overcome the mandatory nature of this specific instruction.” Duelmer, 265 Ga. App. at 343.

Additionally, the State points out that the trial court instructed the jury that “merely showing that the defendant had been drinking or that there was a smell of alcohol on the defendant’s breath or person, without proof of the manner of driving or the ability to drive, is insufficient to prove that the defendant was guilty of driving under the influence of alcohol.” However, this instruction is silent on the effect of the defendant’s refusal to take a State-administered breath test and so could be read consistently with the instruction challenged in this case. In other words, the two instructions, when read together, could be construed as saying that merely showing that the defendant had been drinking or had the smell of alcohol on his breath or person, without proof of his manner of driving, of his ability to drive, or of his refusal to take a State-administered breath test, is insufficient to prove that the defendant was guilty of driving under the influence of alcohol. As such, the instruction relied upon by the State did not cure the erroneous instruction challenged here.

For these combined reasons, we conclude that Wagner “has satisfied the requirement of showing substantial error because the [error in the] charge was blatantly apparent and prejudicial to the extent that it raises a question whether he has been deprived, to some extent, of a fair trial.” (Punctuation and footnote omitted.) Jones, 252 Ga. App. at 334 (2) (a). Accordingly, we must reverse his conviction for DUI — Less Safe and remand for a new trial on that count. Moreover, because Wagner’s DUI — Child Endangerment conviction was predicated upon his DUI — Less Safe conviction, we must reverse that conviction and remand for a new trial on that count as well. See OCGA § 40-6-391 (1) (“A person who violates [OCGA § 40-6-391] while transporting in a motor vehicle a child under the age of 14 years is guilty of the separate offense of endangering a child by driving under the influence of alcohol or drugs.”).

Judgment reversed and case remanded.

Adams, J., concurs.

Blackwell, J., concurs specially.

BLACKWELL, Judge,

concurring specially.

The majority is right to inquire whether the jury instruction in this case concerning the inferences a jury properly may draw from a refusal to take a breath test is plain error, and the majority correctly concludes that it is, so I agree that we must reverse the judgment of conviction below. But I do not agree with all that is said in the majority opinion, and for this reason, I concur specially.

Of most concern to me is the pronouncement of the majority, without reservation, that “a substantial error in the jury charge affecting the burden of proof constitutes plain error.” In some sense, most of the jury instructions in a criminal case “affect” the burden of proof in one way or another, whether an instruction touches upon the nature of the burden itself, the identity of the party having the burden, the specific elements of the crime or affirmative defense that must be proven to discharge the burden, or the nature and quality of the evidence that is offered to carry the burden. And I am not sure that every substantial, plain or obvious error with respect to such a charge always and necessarily amounts to reversible error in the absence of a timely and proper objection below. Perhaps every such error is reversible error, but as of today, I am not yet convinced that it must be so, and I cannot, therefore, join the sweeping pronouncement about plain error in the majority opinion. The relevant question is not, I think, whether an erroneous instruction “affects” the burden of proof in some way.

Instead, the proper inquiry is found in the clear and unambiguous terms of OCGA § 17-8-58 (b), which provides in pertinent part that a failure to make a timely, specific, and proper objection to a portion of the jury charge in a criminal case “shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties.” (Emphasis supplied.) The words of this statute quite obviously are drawn from Federal Rule of Criminal Procedure 52 (b), and the cases discussing Rule 52 (b) make clear what they mean: plain error is error that is clear or obvious, see United States v. Olano, 507 U. S. 725, 734 (II) (A) (113 SC 1770, 123 LE2d 508) (1993), and in most cases, such an error affects substantial rights when it likely affected the outcome of the proceedings below. See id. The proper inquiry in this case, therefore, is whether the instruction that the court below gave to the jury was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings.

We disapproved the very instruction given in this case about eight years ago in Baird v. State, 260 Ga. App. 661, 662-664 (1) (580 SE2d 650) (2003), so the giving of the instruction in this case was error, and the error is obvious. Impairment of the ability to drive safely was the principal disputed issue at trial, and the question of impairment in this case was a close one, especially considering, among other things, that some of the field sobriety tests failed to indicate impairment and that Wagner offered a facially reasonable explanation for his erratic driving. I think Wagner has carried his burden of showing that the erroneous instruction likely affected the outcome of the proceedings below, and for this reason, I concur in the judgment.

Decided September 7, 2011.

Christopher R. Geel, Lawrence J. Zimmerman, for appellant.

Barry E. Morgan, Solicitor-General, Christopher S. Banning, Assistant Solicitor-General, for appellee.

       The State does not contend that there was overwhelming evidence that Wagner was an impaired driver. Nor would the record support such a contention, given the mixed results of the field sobriety evaluations and the possibility that Wagner’s erratic driving was a reaction to being followed by the restaurant customer, as the customer herself suggested in her testimony.

       This Court has suggested before that the instruction that was given in this case shifts the burden of proof to the defendant by, as the majority says, “requiring him to rebut the inference that he was an impaired driver because he refused to submit to the breath test.” See, e.g., Baird v. State, 260 Ga. App. 661, 662-664 (1) (580 SE2d 650) (2003); Duelmer v. State, 265 Ga. App. 342, 342-343 (593 SE2d 878) (2004). I am not sure these prior opinions fairly characterize the instruction. The charge quite clearly instructs that the inference is permissive, and the problem with the instruction is not that it requires a defendant to disprove impairment, but rather that it authorizes the jury to draw an inference of impairment from evidence that logically does not suggest impairment. It is an erroneous instruction to be sure, but I am not convinced that it is a burden-shifting one (or that it matters whether it is “burden-shifting” or otherwise erroneous).

       Unlike a harmless-error analysis, where the appellee bears the burden of showing that an error did not likely affect the outcome below, a plain-error analysis requires the appellant to make an affirmative showing that the error probably did affect the outcome below. See Olano, 507 U. S. at 734 (II) (A).