author: McMlLLIAN, Judge.

text:
    A15A1849.
    SMITH v. THE STATE.
    (782 SE2d 824)
   McMlLLIAN, Judge.

Robbie Smith was convicted by a jury of possession of cocaine with intent to distribute, possession of marijuana with intent to distribute, theft by receiving stolen property, two counts of fleeing or attempting to elude, obstruction of a law enforcement officer, operating a motor vehicle with a suspended license, and two counts of possession of a firearm during the commission of a crime. Smith appeals following the denial of his motion for new trial, as amended, arguing the trial court should have granted his motion for directed verdict as to the drug distribution charges, the trial court erred in permitting a police officer to give his opinion concerning Smith’s intent to distribute the drugs, and his trial counsel was ineffective because he did not obj ect to the testimony of the police officer. As more fully set forth below, we find these contentions to be without merit and affirm.

1. Smith first contends that the trial court erred by denying his motion for directed verdict as to the drug distribution charges.

Amotion for a directed verdict should be granted only when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. The standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction: the evidence must be sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. The evidence must be reviewed in the light most favorable to support the verdict and the defendant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine the credibility of witnesses.

(Citations omitted.) Hughes v. State, 297 Ga. App. 217, 217 (676 SE2d 852) (2009). Viewed in this light, the evidence at trial shows that Smith was arrested after attempting to evade a routine “license/ safety check” police roadblock, an ensuing high speed vehicle chase, and an attempt to elude pursuing law enforcement officers on foot after he stopped and exited his vehicle. Officers found a nine-millimeter handgun with an extended clip, which holds extra rounds, sitting on the passenger seat of Smith’s car, and further inspection revealed that there was a live round in the chamber. Police also learned that the weapon was stolen and Smith’s driver’s license was suspended. In addition to the gun, police officers found two marijuana “joints” in an ashtray inside the vehicle.

Police officers also searched along the path Smith ran after he exited his vehicle. Strewn along the path, officers discovered five bags containing a green leafy substance subsequently identified as marijuana; one of the five bags contained 45.3 grams of marijuana, and the other four bags each contained approximately 0.9 grams of marijuana. Officers also found eight individual bags containing what was subsequently identified as cocaine; two of the bags contained a more “chunky solid” form of cocaine weighing 2.51 grams, and the other six bags contained a more powdered form of cocaine, with a total weight of 2.25 grams. Deputy Charles Smith, who was one of the officers who pursued Smith when he attempted to elude police, testified without objection at trial that “usually in my line of work, in my knowledge and experience, with the amount of narcotics that was discovered, it’s usually broken up like that for distribution purposes.” Following this testimony, Smith moved for a directed verdict, which the trial court denied.

Smith now argues that the trial court should have granted his motion because the State’s only evidence of intent to distribute was based on the multiple bags of the drugs and Deputy Smith’s non-expert opinion testimony.

Although the State is required to show more than mere possession to prove that [the defendant] intended to distribute the cocaine, no bright line rule exists regarding the amount.... Rather, the State may show intent to distribute in many ways, including expert testimony that the amount of contraband possessed was inconsistent with personal use, evidence showing the manner of packaging, and the possession of [weapons]. The issue of intent is peculiarly a question of fact for jury determination.

(Citations and punctuation omitted.) Barber v. State, 317 Ga. App. 600, 605 (3) (732 SE2d 125) (2012). Here, the defendant possessed two different type of drugs, and the cocaine he possessed was in two different forms. A large quantity of marijuana was found in one bag, while smaller and similar quantities of the drug were found in other bags. In addition to the marijuana, Smith also possessed two different forms of cocaine divided into eight individual bags. Deputy Smith testified, without objection, that the quantity and packaging of the drugs was indicative of drug distribution, and this testimony was based on his training and experience. Further, although it is true that Deputy Smith was not formally tendered as an expert, the trial court tacitly or impliedly accepted him as such when he allowed the officer to testify concerning his opinion in the areas of narcotics possession and distribution. See Barber, 317 Ga. App. at 605 (3) (police officer may give opinion as to whether the amount or value of the contraband is consistent with distribution, provided the State lays a foundation for the opinion); Hughes, 297 Ga. App. at 218.

Moreover, in addition to the officer’s testimony, the evidence also shows that Smith engaged in a high-speed, dangerous chase and then attempted to flee from police on foot and that a nine-millimeter, loaded handgun with a bullet in the chamber was found in the front passenger seat after Smith fled from the car. Causey v. State, 274 Ga. App. 506, 508 (618 SE2d 127) (2005) (loaded weapon, large quantity of narcotics and cash constituted evidence of involvement in drug trade); see generally State v. Jackson, 287 Ga. 646, 652 (697 SE2d 757) (2010) (noting that it is “not unusual” for drug dealers to be armed). This evidence, coupled with other evidence at trial, was sufficient to support Smith’s conviction of possession of cocaine and marijuana with intent to distribute beyond a reasonable doubt. See e.g., Thomas v. State, 321 Ga. App. 214, 215 (1) (741 SE2d 298) (2013) (evidence sufficient where officer testified quantity and packaging of crack cocaine was more consistent with drug sales instead of personal use, and manner of concealment was typical of “street level” drug dealer); Horne v. State, 318 Ga. App. 484, 485 (1) (733 SE2d 487) (2012) (evidence of intent to distribute sufficient where officer testified amount of cocaine was greater than what would normally be kept for personal use and drugs were packaged separately for distribution); Flemister v. State, 317 Ga. App. 749, 752 (1) (732 SE2d 810) (2012) (evidence sufficient where officer testified drugs were packaged in a manner commonly associated with the sale of marijuana); Causey, 274 Ga. App. at 508 (evidence of intent to distribute when large quantities of drugs, cash, and a weapon found on defendant’s person). Accordingly, the trial court did not err by denying Smith’s motion for directed verdict on these counts.

2. Smith also contends that the trial court erred by permitting Deputy Smith to give opinion testimony as to the issue of possession with intent to distribute without laying an adequate foundation based on his experience and training. However, as Smith acknowledges in his brief on appeal, his trial counsel failed to object to the officer’s testimony on this basis. It is well settled that the failure to make a timely and specific objection to the introduction of evidence at trial is treated as a waiver, and this includes an assertion that the State failed to lay a proper foundation for the admission of evidence at trial. Slaughter v. State, 282 Ga. App. 276, 279 (2) (638 SE2d 417) (2006) (failure to raise foundational objection to officer’s testimony that the amount and form of drugs was indicative of intent to sell waived appellate review of this issue); see also Robinson v. State, 332 Ga. App. 240, 244 (2) (771 SE2d 751) (2015) (contention that State failed to lay proper foundation for introduction of testimony concerning prior arrests waived when not raised in trial court). Accordingly, this enumeration presents nothing for our review.

3. In a related enumeration, Smith argues that his trial counsel was ineffective because he did not object to the State’s failure to lay a proper foundation before Deputy Smith was allowed to give his opinion testimony and did not object to this testimony.

To succeed on his ineffectiveness claim, Smith “must show both that his counsel’s performance was deficient and that, but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different.” Batten v. State, 295 Ga. 442, 445 (3) (761 SE2d 70) (2014). “It is the appellant’s ‘heavy’ burden to prove the ineffective assistance of counsel, not the state’s burden to prove the adequate assistance of counsel.” (Citation omitted.) Id. Moreover, “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Citation and punctuation omitted.) Id.

Decided February 22, 2016.

Michael B. Nation, for appellant.

Richard R. Read, District Attorney, Roberta A. Earnhardt, Kirk M. Thomas, for appellee.

Smith’s trial attorney testified at the motion for new trial hearing that his primary defense strategy was to show that the contraband, which was found on the ground near several apartment complexes, did not belong to Smith. Trial counsel testified that Deputy Smith’s testimony was not relevant to this defense, and, moreover, based on the numerous cases he had tried with the prosecuting attorney, he was “confident” that if he had objected, the State’s attorney simply would have elicited testimony to “shore up” the foundation for Deputy Smith’s testimony. The record also shows that trial counsel did cross-examine Deputy Smith, and that instead of attacking his credentials, attempted to show that his opinion about Smith’s intent in possessing the drugs was ill-founded.

“As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.” (Citation and punctuation omitted.) Barber, 317 Ga. App. at 604 (2) (b) (no ineffectiveness because reasonable trial strategy not to object when officer asked to explain difference between simple possession and possession with intent to distribute when trial strategy was that defendant did not possess the drugs). That Smith now disagrees “with the decisions, tactics, or strategies made by trial counsel does not demonstrate that [his] trial counsel rendered ineffective assistance.” (Citation and punctuation omitted.) Harris v. State, 257 Ga. App. 819, 823 (2) (b) (572 SE2d 370) (2002). Moreover, Smith did not attempt to make any showing on motion for new trial that Deputy Smith was not qualified by training and experience to give his opinion, which was his burden, rather than the State’s, to carry to prove his ineffectiveness claim. Accordingly, this enumeration affords no basis for reversal.

Judgment affirmed.

Barnes, P. J., and Mercier, J., concur.

       We will refer to the first two offenses collectively as the “drug distribution” charges or counts.

       Smith recognizes that a law enforcement officer may be permitted to offer opinion testimony, even if not formally tendered as an expert, if an adequate foundation is laid with respect to the officer’s training and experience, Jmt goes on to argue that an adequate foundation was not laid for the officer’s testimony in this case. However, as more fully set out in Division 2 below, Smith did not object to the officer’s testimony on this ground at trial, and thus any challenge to the officer’s testimony on this basis has been waived.


source: Caselaw Access Project

author: McFADDEN, Judge.

license: Public Domain

text:
    A15A1885.
    CLARK v. THE STATE.
    (782 SE2d 828)
   McFADDEN, Judge.

After a jury trial, Cleveland Clark was convicted of armed robbery. He appeals, challenging the trial court’s exclusion of evidence of the victim’s prior first offender guilty plea and his trial counsel’s effectiveness. However, Clark has failed to show that the trial court abused its discretion in excluding the first offender evidence or that his trial counsel’s performance was prejudicial. Accordingly, we affirm.

Construed in the light most favorable to the verdict, see Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the evidence shows that on the night of January 13, 2012, the victim and a friend drove to a restaurant parking lot to meet, and purchase marijuana from, Willie Montfort. When the victim and his friend arrived at the parking lot, Montfort was already there with Clark. Montfort and Clark left their car, in which there were also two other occupants, and got into the back seat of the victim’s car. Montfort then pointed a pistol at the victim and took his wallet, cell phone and pocketknife. At the same time, Clark brandished a pistol and took money and cigarettes from the victim’s friend. Clark and Montfort then fled from the scene in their car, along with the other two occupants of the car. As they fled, they passed a police officer who was in his patrol car in the parking lot. The victim drove over to the officer and reported that the occupants of the fleeing car had just robbed them. The officer followed Clark and Montfort’s car and pulled it over a short distance from the scene of the robbery as other officers arrived. Officers found Clark in possession of the victim’s cell phone and knife; and inside the car, they found marijuana, money, two BB pistols, cigarettes, and the victim’s wallet.

Clark and Montfort were jointly indicted and tried before a jury on two counts of armed robbery of the victim and of his friend. The jury found both Clark and Montfort guilty of the count of armed robbery of the victim, but not guilty of the count of armed robbery of the friend. Clark moved for a new trial, but the trial court denied the motion. This appeal followed.

1. Victim’s first offender plea.

Clark contends that the trial court erred in not allowing him to impeach the victim with evidence of the victim’s prior first offender guilty plea to an offense of possession of marijuana with intent to distribute. However, “[bjecause first offender status is not considered an adjudication of guilt, a first offender plea cannot be used to impeach a witness on general credibility grounds. [Cits.]” Rivers v. State, 296 Ga. 396, 401 (5) (768 SE2d 486) (2015). See also OCGA § 24-6-609 (c) (new Evidence Code provision likewise mandating that evidence of first offender adjudication shall not be used to impeach any witness). Nevertheless, citing Matthews v. State, 268 Ga. 798 (493 SE2d 136) (1997), Clark argues that he should have been allowed to use the victim’s first offender plea to contradict facts to which he testified. As an initial matter, Matthews does not expressly establish that a first offender plea may be used to impeach a witness in that manner. Rather, in that case, the Supreme Court of Georgia noted that it was “not deciding] whether a first offender record may be used for purposes of impeachment to disprove or contradict the testimony of the witness.” Id. at 802 (4), n. 2. But even assuming for the sake of argument that a first offender plea could be used against a witness in a criminal case to disprove or contradict his testimony, Clark has made no showing that evidence of the victim’s first offender plea in a prior unrelated case would have disproved his testimony in this case that he was robbed during a purported drug transaction. We thus find no abuse of the trial court’s discretion in excluding evidence of the first offender plea since such evidence “simply [ ] was not pertinent to the critical fact[s] in question in [Clark’s trial for armed robbery].” Rivers, supra at 402 (5).

2. Ineffective assistance of counsel.

Clark claims that his trial counsel was ineffective in failing to elicit a ruling from the trial court as to all the grounds raised as to the admissibility of evidence of the victim’s first offender plea and in failing to move again for the admissibility of such evidence after co-defendant Montfort’s testimony. We disagree.

To prevail on [this] ineffective assistance of counsel claim, [Clark] must show (1) that his counsel’s performance was deficient and (2) that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.. .. [I]f [Clark] fails to meet his burden of proving either prong, then we do not need to examine the other prong.

Matabarahona v. State, 335 Ga. App. 25, 26 (2) (780 SE2d 731) (2015) (citations and punctuation omitted).

In this case, even if we assume, without deciding, that counsel performed deficiently, Clark has failed to show any prejudice because there is no reasonable likelihood that the outcome of the trial would have been different given the overwhelming evidence of guilt. See Paschal v. State, 335 Ga. App. 411, 416 (3) (780 SE2d 681) (2015) (in light of overwhelming evidence, defendant could not show prejudice prong of ineffective assistance claim). As recounted above, police caught Clark and his co-defendant as they fled from the scene of the robbery and found them to be in possession of both the weapons used in the robbery and the property stolen from the victim. Thus, Clark “has not shown that his trial counsel rendered ineffective assistance.” Id.

Decided February 22, 2016

G. Richard Stepp, for appellant.

Daniel J. Porter, District Attorney, Christopher M. Quinn, Courtney R. Spicer, Assistant District Attorneys, for appellee.

Judgment affirmed.

Dillard, J., concurs. Ellington, P. J., concurs in judgment only.


author: PHIPPS, Presiding Judge.

text:
    A15A1911.
    WHATLEY v. THE STATE.
    (782 SE2d 831)
   PHIPPS, Presiding Judge.

A jury found Sedrick Cortez Whatley guilty of nine felonies, including kidnapping, in connection with two incidents that occurred on consecutive nights in November 2009. Whatley claims that the trial court erred by denying his motion to suppress because affidavits supporting two search warrants issued in the case were based on information supplied by a confidential informant of unknown reliability. Whatley also argues that there was insufficient evidence to support his kidnapping conviction. We reject both claims of error and affirm.

Viewed in a light favorable to the verdict, the record shows that a clerk at Coleman’s Grocery in Fayette County had just closed the store for the night and was walking to his car when two men wearing masks approached and ordered him back inside. One of the men had a silver gun. After the men threatened to shoot, the clerk gave them cash, scratch-off lottery tickets, and cigars. The men then forced the clerk inside the store’s office and locked the door, and the clerk called 911. Video from the store’s security cameras showed that one man wore a dark jacket with fur around the hood and the other wore a lighter hoodie with the letters “L-R-G” on the back.

The following evening, a man drove to a Fayette County ATM to deposit his paycheck. Afterward, a car followed him home and parked in front of his house. Three people got out of the car, one holding a silver gun, and accosted the ATM-user in his driveway. One man grabbed the ATM-user’s wallet from his pocket, and then the people left.

Several days later, a detective with the Fayette County Sheriff’s Office obtained a warrant to search the residence of a man named Kevin Wygant, Jr., for evidence of the above crimes. When police executed the warrant, they found Whatley inside, along with Wygant. They also found a black jacket with a fur-trimmed hood, a mask, a 9mm silver handgun, a bag of lottery tickets, a box of cigars, and the ATM-user’s driver’s license, social security card, and credit cards. The detective then obtained a search warrant for Whatley’s residence. There, police found a jacket bearing the letters “L-R-G.”

Whatley was arrested and charged with two counts each of armed robbery, aggravated assault, and possession of a firearm during the commission of a crime, and one count each of financial transaction card theft, kidnapping, and burglary. He later confessed to the crimes, except he denied that a gun had been used in the robbery of the ATM-user. Following a jury trial, Whatley was convicted on all counts.

1. Whatley argues that the trial court erred by denying his motion to suppress the evidence found in the two residences because the search warrants were improperly based on information from an informant of unknown reliability. We find no error.

At the hearing on the motion to suppress, the investigating detective testified that he applied to a municipal court judge for the warrant to search Wygant’s residence. In support of the application, he submitted an affidavit recounting the two incidents in detail and describing the stolen items, the perpetrator’s masks and clothing, and the gun. The affidavit also stated that the Georgia Lottery Commission had recently notified the detective of an attempt at a local business to cash one of the lottery tickets stolen from Coleman’s Grocery. After reviewing video footage from the business, the detective was able to identify the person who had tried to cash the ticket. Then a police officer from a nearby jurisdiction told the detective that an unidentified confidential informant had given him information about the incidents. According to the affidavit, the informant

(herin [sic] known as CI0002C) .. . stated he had picked up [the ticket-casher] at [a Fairburn residence the day before]. During the time CI0002C was at the residence, he spoke with a black male who identified himself as “Kevin” (who was identified by [police] as [Wygant].) During this time the “Kevin” subject bragged about committing a robbery at Coleman’s Grocery and stated he had worn a clear mask and used a silver handgun. The “Kevin” subject also bragged about taking money and a large amount of Lottery tickets from the store. CI0002C stated he observed the clear mask hanging on the wall, observed a silver handgun, a black jacket with a fur covered hood, and observed a sack containing numerous Lottery tickets along with clear wrappers. Upon leaving the location, CI0002C learned from [the ticket-casher] that he had received the [lottery] ticket . . . from “Kevin’s” residence.

A fellow officer accompanied the detective to apply for the warrant and gave the municipal court judge oral testimony concerning the informant’s reliability. That officer told the judge that the informant had provided information in multiple recent gang, drug, and burglary cases at both the state and federal levels. That information, the officer told the judge, had “panned out and led to arrests.” Based on the affidavit and the oral testimony, the municipal court judge issued a warrant to search Wygant’s residence for Wygant, as well as the mask, gun, fur-trimmed jacket, and lottery tickets.

The detective later applied to a superior court judge for the warrant to search Whatley’s residence. In support of that application, the detective submitted an affidavit that was materially identical to his first affidavit, except that it also noted that Whatley had been present at Wygant’s residence, and it listed the items found inside that residence. The superior court judge issued a warrant authorizing the police to search Whatley’s residence for the “L-R-G” jacket, lottery tickets, silver gun, and mask, as well as a hat.

A judge may issue a search warrant “upon facts sufficient to support probable cause that a crime . . . has been committed.” The judge’s task in determining whether probable cause exists to issue a search warrant

is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Our duty in reviewing the [judge]’s decision in this case is to determine if the [judge] had a substantial basis for concluding that probable cause existed to issue the search warrants.

“The [judge] may consider oral testimony as well as the affidavit in issuing a search warrant.”

When the state attempts to establish probable cause through information gained from an unidentified informant, “the informant’s veracity and basis of knowledge are major considerations in the probable cause analysis.”

Among the factors to be considered by a [judge] in assessing the reliability of information from an unidentified informant are: (1) the type of information previously supplied by the informant, (2) the use to which the information was put, and (3) the elapsed time since the information was furnished. Each of these factors need not be shown, so long as the [judge] has sufficient information to judge reliability.

If an unidentified informant is not shown to be reliable, his tip nevertheless may be considered trustworthy if portions of it are sufficiently corroborated by the police. For the corroboration to be meaningful, the tip must “include a range of details relating to future actions of third parties not easily predicted or similar information not available to the general public.”

Here, although the investigating detective’s affidavits contained insufficient information to establish the informant’s reliability, the other officer’s oral testimony to the municipal court judge showed that the informant had proven to be trustworthy by giving helpful information on multiple recent occasions. Moreover, the affidavits showed that the informant’s tip was reliable in this case. The informant said that he met Wygant while he was with the ticket-seller, whom the investigating detective had independently identified from video footage. Additionally, the informant gave a range of details about the Coleman’s Grocery robbery that would not have been widely known, including describing the mask, gun, and jacket used by one of the perpetrators and the large quantity of lottery tickets that were taken. Finally, the informant claimed that he had seen these items inside Wygant’s residence, and the informant provided an address. We conclude that this detailed information, much of it independently corroborated, was sufficient to establish the informant’s reliability and therefore to supply probable cause for the warrants.

2. Among Whatley’s convictions was a kidnapping conviction for “abduct[ing] and stealing] away” the clerk in the Coleman’s Grocery incident. Whatley contends that there was insufficient evidence to support the kidnapping conviction under Garza v. State because “[a]ny movement of [the clerk] should be deemed as merely incidental to the offense of robbery and for no other purpose.” Again, we disagree.

“A person commits the offense of kidnapping when such person abducts or steals away another person without lawful authority or warrant and holds such other person against his or her will.” The element of “abducting or stealing away” — known as asportation — may be proven by evidence of “slight movement” of the victim. In Garza, the Supreme Court held that the movement required to establish the asportation element of Georgia’s pre-2009 kidnapping statute must be more than “merely incidental” to other criminal activity, and the court set forth four factors to guide this inquiry.

Decided February 22, 2016.

Mark A. Hinds, for appellant.

Scott L. Ballard, District Attorney, Warren A. Sellers, Assistant District Attorney, for appellee.

But Garza has been superseded by statute for crimes — such as Whatley’s — that were committed after July 1, 2009. The kidnapping statute now clarifies that the victim’s movement is not considered merely incidental, but instead is sufficient to establish the asportation element of the offense, if it “(A) [c] onceáis or isolates the victim; (B) [m]akes the commission of the other offense substantially easier; (C) [ljessens the risk of detection; or (D) [i]s for the purpose of avoiding apprehension.” Here, the clerk testified that after taking items inside the store, the robbers forced him into the office against his will and locked the door. This testimony supports the reasonable inference that the robbers isolated the clerk to expedite their escape, thereby lessening the risk of their detection. Thus, the evidence was sufficient to establish the asportation element of kidnapping.

Judgment affirmed.

Doyle, C. J., and Boggs, J., concur.

       See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       Wygant was charged with the same crimes as Whatley, but he was tried separately. Wygant was convicted of the crimes associated with the grocery store robbery, hut acquitted of those involving the ATM-user. We affirmed his convictions in an unpublished opinion. Wygant v. State, 327 Ga. App. XXIX (June 25, 2014) (unpublished).

         Galloway v. State, 332 Ga. App. 389 (772 SE2d 832) (2015) (citations omitted).

       Id. at 389-390.

        Flewelling v. State, 300 Ga. App. 505, 510 (2) (a) (685 SE2d 758) (2009) (punctuation omitted).

        Evans v. State, 263 Ga. App. 572, 574-575 (2) (b) (588 SE2d 764) (2003) (citation omitted).

        Copeland v. State, 273 Ga. App. 850, 851 (1) (a) (616 SE2d 189) (2005) (punctuation and footnotes omitted).

       Id.

       Id. (punctuation andfootnote omitted); see also Sutton v. State, 319 Ga. App. 597, 598 (737 SE2d 706) (2013) (“where other investigation supports the information of the informant, this can be considered as a part of the reliable basis for the finding of probable cause”) (citation and punctuation omitted).

       See, e.g., Cole v. State, 282 Ga. App. 211, 213 (1) (638 SE2d 363) (2006) (informant’s tip was reliable even though he had not previously given information to the police, where the tip showed “inside information about [the defendant’s] private affairs”); Munson v. State, 211 Ga. App. 80, 82 (438 SE2d 123) (1993) (probable cause existed based on information provided by informant of unknown reliability, where police corroborated some of the information).

       284 Ga. 696 (670 SE2d 73) (2008).

       OCGA § 16-5-40 (a).

       OCGA § 16-5-40 (b) (1).

       284 Ga. at 702 (1). Those factors are the duration of the movement, whether it occurred during the commission of a separate offense, whether it was an inherent part of that separate offense, and whether the movement itself significantly endangered the victim independent of the danger posed by the separate offense. Id.

       See Gonzalez v. Hart, 297 Ga. 670, 672, n. 3 (777 SE2d 456) (2015).

       OCGA § 16-5-40 (b) (2).


author: Peterson, Judge.

text:
    A15A2032.
    PRIEST v. THE STATE.
    (782 SE2d 835)
   Peterson, Judge.

Clyde Joseph Priest appeals his convictions for child molestation and two counts of enticing a child for indecent purposes. He argues on appeal that (1) he should receive a new trial because his trial counsel was ineffective for failing to file a motion to dismiss the indictment based upon a violation of his right to a speedy trial and (2) there was insufficient evidence to support his convictions. Because the trial court failed to address part of one of Priest’s arguments (that the denial of his right to a speedy trial resulted in actual prejudice to his defense), we vacate the trial court’s order denying the motion for a new trial and remand for further consideration of that issue.

Priest was tried and convicted based on allegations involving two girls, J. W. and L. G., who lived in the same trailer park as he. Priest was arrested on November 14, 2007, and indicted on March 28, 2008. His trial began on October 18, 2012. At the close of the prosecution’s case, the defense made a motion for a directed verdict, which the trial court denied. The jury found Priest guilty on all three counts. Priest’s trial counsel made a motion for new trial, and his appellate counsel filed amended motions for new trial. Those motions were denied.

1. Priest argues that the trial court erred in finding that his trial counsel was not ineffective for failing to move to dismiss the indictment prior to trial based on violations of Priest’s constitutional right to a speedy trial. In reviewing a claim of ineffective assistance of counsel, we apply the analysis of Strickland v. Washington, 466 U.S. 668 (104 S. Ct. 2052, 80 LE2d 674) (1984), considering whether Priest shows both that his counsel’s performance was deficient and that he suffered prejudice as a result of such alleged deficient performance. Jones v. State, 296 Ga. 561, 567 (4) (769 SE2d 307) (2015). “In reviewing a claim of ineffective assistance, we give deference to the trial court’s factual findings and credibility determinations unless clearly erroneous, but we review a trial court’s legal conclusions de novo.” Grant v. State, 295 Ga. 126, 130 (5) (757 SE2d 831) (2014) (citation omitted).

In order to establish prejudice by his counsel’s failure to file a motion to dismiss on speedy trial grounds, Priest must show that such a motion would have been granted had it been filed. See Jones, 296 Ga. at 569 (7); Chalk v. State, 318 Ga. App. 45, 48 (1) (c) (733 SE2d 351) (2012). A threshold determination in examining an alleged denial of the constitutional right to a speedy trial is “whether the interval between the accused’s arrest, indictment, or other formal accusation and the trial is sufficiently long so as to be characterized as presumptively prejudicial.” Jones, 296 Ga. at 570 (7) (citation and punctuation omitted). If it is, the court is to apply a balancing test of the four factors identified in Barker v. Wingo, 407 U.S. 514 (IV) (92 S. Ct. 2182, 33 LE2d 101) (1972): “length of delay, reason for the delay, the defendant’s assertion of the right, and prejudice to the defendant.” Jones, 296 Ga. at 569-70 (7). In reviewing a trial court’s consideration of whether a delay in bringing an accused to trial amounts to a denial of his right to a speedy trial,

we must accept the factual findings of the trial court unless they are clearly erroneous, and we must accept the ultimate conclusion of the trial court unless it amounts to an abuse of discretion, even though we might have reached a different conclusion were the issue committed to our discretion.

State v. Buckner, 292 Ga. 390, 391 (738 SE2d 65) (2013) (citation omitted).

In denying Priest’s motion for a new trial, the trial court found that the delay between Priest’s arrest and trial, a period of approximately 59 months, was presumptively prejudicial and uncommonly long, and weighed the reason for delay against the State. The trial court found that Priest’s failure to assert his speedy trial right weighed heavily against him and that Priest had shown no actual prejudice as a result of the delay. On appeal, Priest argues that the trial court erred by weighing the failure to assert the right heavily against him and by finding that Priest had experienced no actual prejudice.

A delay approaching one year is generally sufficient to raise a presumption of prejudice. Jones, 296 Ga. at 570 (7). Here, the delay between Priest’s November 2007 arrest and the beginning of his jury trial in October 2012 amounted to nearly five years and was presumptively prejudicial, a point the State concedes. Accordingly, if Priest had made a motion to dismiss based on speedy trial grounds, the trial court would have been required to consider the four Barker factors. Id.

The State also concedes that the length of the delay should be weighed against the State. As to the second factor, the State has offered no explanation for why the case took several years to be set for trial. At the motion for new trial hearing, Priest’s trial counsel testified that she talked to Priest about the case “evidently being off of the State’s radar.” “[W]hen no reason appears for a delay, it will be treated as caused by the State’s negligence,” although such negligence is considered “relatively benign, and therefore, this factor should be weighed only slightly against the State.” Higgenbottom v. State, 290 Ga. 198, 201-02 (1) (B) (719 SE2d 482) (2011) (citation and footnote omitted). Thus, the trial court did not err in weighing the second factor against the State.

The third factor, the defendant’s assertion of the right, weighs against Priest. Priest’s trial counsel testified that Priest would call her about every six months or so to check in, and she did not recall him asking her to assert his speedy trial rights, although they “would frequently discuss the merits of letting the case sit.” Priest concedes that his counsel never filed a speedy trial demand. He does not dispute that this factor should weigh against him but argues that it should not have “weighed heavily” against him as found by the trial court, given that trial counsel still could have prevailed on a motion to dismiss based on the other Barker factors. Although a lengthy delay in asserting a right to a speedy trial does not necessarily require that a motion to dismiss be denied, see State v. Nagbe, 302 Ga. App. 682, 686 (5) (691 SE2d 593) (2010), such a delay “is entitled to strong evidentiary weight” against the defendant. Brannen v. State, 274 Ga. 454, 456 (553 SE2d 813) (2001) (citations and punctuation omitted). Thus, the trial court did not err in weighing this factor heavily against Priest.

The final factor, prejudice to the defendant, involves consideration of three interests that the right to a speedy trial is designed to protect: preventing pre-trial incarceration from being oppressive, minimizing any anxiety and concern on the part of the accused, and limiting possible impairment of the defense. Jones, 296 Ga. at 571 (7). The last is the most important of these, and the only one at issue here. Id. Pre-trial incarceration is not implicated, because Priest was granted bond within a few weeks of his arrest, and Priest presented no evidence that he suffered any unusual anxiety or concern as a result of the delay in bringing his case to trial. See id. Instead, he argues that he was prejudiced when two defense witnesses, Joseph Shipman and a witness named “Dana,” “disappeared” during the delay. “If witnesses die or disappear during a delay, the prejudice is obvious.” Nagbe, 302 Ga. App. at 686 (4) (punctuation and footnote omitted).

Priest’s trial counsel testified that she had a handwritten letter in her file that appeared to be signed by someone named Joseph Shipman. The letter says that J. W. had admitted to Shipman that she had brought false accusations against both her father and Priest. Trial counsel said that she believed that letter had been gathered by a former investigator in her office, who took other employment shortly after conducting the initial investigation in the case and who did not leave good notes. Trial counsel said it appeared her investigator was able to reach Shipman when the case started, but the lawyer was not able to reach Shipman subsequently and never spoke to him personally. Trial counsel said she believed her office confirmed that Shipman was a registered sex offender — but could not say that for sure — and had received some information that he may have moved to Florida.

Trial counsel also testified that Dana’s name appeared in the case file, as well, in notes that refer to a false allegation by J. W. Trial counsel said that notes that may be in the prior investigator’s handwriting refer to a Dana Sheppell, but was not sure if this was the same person as Dana Wright, who was referred to in notes by an investigator who took over the matter later. The lawyer said she was not able to locate any witness named Dana.

In denying the motion for a new trial, the trial court mentioned only Shipman, not the witness named Dana. The trial court wrote that Shipman “had written a note, maybe, that [J. W.] had told him that her accusations against her father had been false.” The trial court found that Shipman would not have been a credible witness even if he had been found and produced at trial. The trial court also said it was unlikely that Shipman’s testimony would have survived a hearing under Smith v. State, 259 Ga. 135 (377 SE2d 158) (1989).

Smith addressed the admissibility of an alleged victim’s alleged past false accusations of sexual misconduct against persons other than the defendant. 259 Ga. at 136-38 (1). In that case, our Supreme Court held that, before allowing such evidence to be admitted, the trial court must determine outside of the presence of the jury “that a reasonable probability of falsity exists.” Id. at 137-38 (1) (citation and punctuation omitted). But the rule articulated in Smith does not apply to any testimony by Shipman that J. W. had admitted to falsely accusing Priest, because Smith addressed past false accusations against third parties, not accusations against the defendant currently before the court. The trial court’s order does not show any consideration of the possibility that Shipman also might have testified that J. W. had admitted to falsely accusing Priest, nor does it show the trial court considered the prejudice, if any, related to any testimony by Dana.

The application of the principles set forth in Barker to the facts of a particular case “is a task committed principally to the discretion of the trial courts, and it is settled law that our role as a court of review is a limited one.” Buckner, 292 Ga. at 391 (footnote omitted). The existence of actual prejudice resulting from a delay in bringing a case to trial is among those questions committed to the discretion of the trial court. See State v. Brown, 315 Ga. App. 544, 553 (3) (726 SE2d 500) (2012). When the trial court makes a factual mistake in applying the Barker factors, the usual course is to vacate the decision of the trial court and remand. See id. Thus, we will not substitute our own analysis of the prejudice question but instead will provide the trial court an opportunity to consider fully the matter in the light of the full breadth of Shipman’s possible testimony, as well as any possible testimony by Dana. Given the potentially probative nature of such evidence, as well as the lengthy delay in this case, we cannot conclude that, even if it had considered all that these potential witnesses might have testified to, the trial court would have been required as a matter of law to weigh the Barker factors as it did and deny the motion for a new trial, anyway. See id. (although a trial court’s ruling on motion to dismiss for speedy trial violation may be affirmed despite a clear error in a finding of material fact “if, putting aside that clear error, the trial court would still be required, as a matter of law, to exercise its discretion in the same way that it did,” such instances are “unusual”). Therefore, we vacate the trial court’s denial of a motion for new trial and remand for the trial judge to revisit the question of prejudice.

Decided February 22, 2016.

William C. Mewborn III, for appellant.

Layla H. Zon, District Attorney, Melanie M. Bell, Destiny S. Harris, Assistant District Attorneys, for appellee.

2. Priest argues that the trial court erred by denying his motion for a directed verdict, specifically arguing that the enticement conviction on Count 3, that based on his interaction with L. G., was unsupported by sufficient evidence. Because we are vacating the trial court’s order and remanding the case for further consideration, we will not consider Priest’s sufficiency arguments at this time.

Judgment vacated and case remanded.

Barnes, P. J., and McMillian, J., concur.

       According to a portion of a police report read into evidence during the motion for new trial hearing, J. W.’s mother told police that J. W. had accused her father of molesting her when she was eight years old, resulting in him being sent to prison, then later admitted to her mother that the alleged crime did not happen. It appears, according to testimony by Priest’s trial counsel, that a post-trial challenge to the conviction of J. W.’s father was rejected because the trial court in that case found J. W. had testified truthfully.

       We do note, however, the irony that Priest is claiming that a delay in getting his case to trial caused him prejudice in the form of two disappearing defense witnesses, when his trial counsel testified that she did not make a demand for a speedy trial in hopes that the passage of time would result in problems with the State’s witnesses that would work in Priest’s favor. In other words, Priest rolled the dice hoping that they would come up sixes; when they came up snake eyes, he now claims that rolling was a mistake in the first place. In weighing the Barker factors on remand, the trial court is, of course, entitled to consider this. See Brannen, 274 Ga. at 457-58 (considering, in applying the Barker factors, the tactical advantage gained by the defense in deciding not to seek a speedy trial).

       Although it found that trial counsel had made a reasonable tactical decision not “to press the case,” the trial court did not explicitly consider whether trial counsel’s performance was deficient. Instead, as is permissible under governing United States Supreme Court precedent, it skipped to the question of prejudice by considering whether a motion to dismiss on speedy trial grounds would have been granted under Barker. See Strickland, 466 U.S. at 697 (IV) (“[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.”). Indeed, it is difficult to determine whether counsel’s failure to file a motion to dismiss is deficient when the meritoriousness of such a motion is unresolved. Given that the question of whether such a motion would have been granted remains unresolved, we will not be the first to consider whether counsel’s performance was deficient.


text:
    A14A0215.
    A14A0272.
    A14A0273.
    A14A0274.
    GEORGIA RIVER NETWORK et al. v. TURNER et al. GEORGIA RIVER NETWORK et al. v. GRADY COUNTY BOARD OF COMMISSIONERS et al. TURNER v. GRADY COUNTY BOARD OF COMMISSIONERS et al. GRADY COUNTY BOARD OF COMMISSIONERS v. GEORGIA RIVER NETWORK et al.
    (782 SE2d 850)
    Decided February 23, 2016.

      Case No. A14A0215

      Southern Environmental Law Center, William W. Sapp, Nathaniel H. Hunt, for appellants.

      Samuel S. Olens, Attorney General, Isaac Byrd, Deputy Attorney General, John E. Hennelly, James D. Coots, Senior Assistant Attorneys General, Neis Peterson, Solicitor-General; Kevin S. Cauley; Cook, Noell, Tolley & Bates, Edward D. Tolley, Devin H. Smith, for appellees.

      Stack & Associates, Donald D. J. Stack, Jennifer R. Culler; Juliet Cohen; King & Spalding, Patricia T. Barmeyer, amici curiae.

      Case No. A14A0272

   McFADDEN, Judge.

In Turner v. Ga. River Network, 297 Ga. 306 (773 SE2d 706) (2015), our Supreme Court reversed Division 3 of our decision in Ga. River Network v. Turner, 328 Ga. App. 381 (762 SE2d 123) (2014), in which we held that the 25-foot buffer requirement of OCGA § 12-7-6 (b) (15) (A) applies to all state waters. Id. at 390-392 (3). In reversing, the Supreme Court concluded: “OCGA § 12-7-6 (b) (15) (A) simply does not provide for the establishment of a buffer for state waters that are adjacent to banks without wrested vegetation.” 297 Ga. at 309 (footnote omitted). Accordingly, we vacate Division 3 of our opinion and adopt the judgment of the Supreme Court as our own. Divisions 1 and 2 of our opinion were not affected by the Supreme Court’s decision and thus remain in effect. See Shadix v. Carroll County, 274 Ga. 560, 563-564 (1) (554 SE2d 465) (2001).

Judgments affirmed in part and reversed in part.

Doyle, C. J., Andrews, P. J., Barnes, P. J., Ray, Boggs and Branch, JJ., concur.

Southern Environmental Law Center, William W. Sapp, Nathaniel H. Hunt, for appellants.

Samuel S. Olens, Attorney General, Isaac Byrd, Deputy Attorney General, John E. Hennelly, James D. Coots, Senior Assistant Attorneys General, Neis Peterson, Solicitor-General; Kevin S. Cauley; Cook, Noell, Tolley & Bates, Edward D. Tolley, Devin H. Smith, for appellees.

King & Spalding, Patricia T. Barmeyer, amici curiae.

Case No. A14A0273

Samuel S. Olens, Attorney General, Isaac Byrd, Deputy Attorney General, John E. Hennelly, James D. Coots, Senior Assistant Attorneys General, Neis Peterson, Solicitor-General, for appellant.

Southern Environmental Law Center, William W. Sapp, Nathaniel H. Hunt, for appellees.

Case No. A14A0274

Kevin S. Cauley; Cook, Noell, Tolley & Bates, Edward D. Tolley, Devin H. Smith, for appellant

Southern Environmental Law Center, William W. Sapp, Nathaniel H. Hunt, for appellees.


author: Ray, Judge.

text:
    A15A1769.
    MOORE-WATERS et al. v. MET-TEST, LLC.
    (782 SE2d 848)
   Ray, Judge.

Sondi Moore-Waters, Alphonso Waters, and Family Practice of Atlanta Medical Group, LLC (collectively the “Appellants”) appeal from the trial court’s grant of Met-Test, LLC’s motion for default judgment against them. On appeal, the Appellants contend that the trial court erred because they were not legally obligated to answer an amended complaint. For the reasons that follow, we reverse the grant of the default judgment.

We review an appeal from a trial court’s ruling on a motion for default judgment for abuse of discretion. Heath v. Beech, 300 Ga. App. 756, 756 (1) (686 SE2d 283) (2009).

Although the record of the case’s procedural history is incomplete and somewhat unclear, it appears that Met-Test initially filed suit in magistrate court only against Sondi Moore-Waters, a physician. The suit was dismissed by the magistrate court. Met-Test appealed to the superior court and moved to add as defendants Moore-Waters’s husband and medical practice manager, Alphonso Waters, and Family Practice of Atlanta Medical Group, LLC. The trial court granted that motion. On October 24, 2014, Met-Test filed an amended complaint against all three Appellants. When the Appellants failed to answer, Met-Test moved for a default judgment on December 30, 2014, which the trial court granted. See OCGA § 9-11-55 (a). Met-Test had alleged that the Appellants failed to pay for medical testing services and equipment that it supplied. The default judgment awarded $14,900 in damages, attorney fees of $4,316.50, plus post-judgment interest.

OCGA § 9-11-15 (a), on its face, only requires an answer to an amended complaint when ordered by the trial court, providing that “[a] party may plead or move in response to an amended pleading and, when required by an order of the court, shall plead within 15 days after service of the amended pleading, unless the court otherwise orders.” (Emphasis supplied.) Met-Test argues that to the extent that OCGA § 9-11-15 (a) does not require a response to an amended complaint, this provision would apply only to the original defendant, Sondi Moore-Waters, and not to Alphonso Waters or Family Practice of Atlanta Medical Group because the amended pleading was, to them, in essence an original complaint requiring an answer. However, this Court has held that where the trial court, in granting the motion to add defendants, does not require the later-added parties to file an answer, they need not do so. Random Access v. Atlanta Datacom, 232 Ga. App. 269, 270 (501 SE2d 610) (1998). The trial court in the instant case did not require Alphonso Waters or Family Practice of Atlanta Medical Group to file an answer. See Gordy v. Sumner, 151 Ga. App. 430,430 (260 SE2d 384) (1979); Chan v. W-East Trading Corp., 199 Ga. App. 76, 77-78 (4), 79-80 (5) (403 SE2d 840) (1991) (finding that a defendant who was not required by statute nor affirmatively ordered by the trial court to answer an amended complaint which added him as a party was not in default); Random Access, supra (finding that “Chan does not mandate that an answer be filed unless one is specifically required by the order of the court adding a party”). Further, “[a]verments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.” OCGA § 9-11-8 (d). Accord Grand Lodge of Ga., Independent Order of Odd Fellows v. City of Thomasville, 226 Ga. 4, 9-10 (4) (172 SE2d 612) (1970) (no responsive pleading to an amended complaint is required, and averments in a pleading to which no responsive pleading is required are deemed denied).

Decided February 23, 2016.

Roberts Law, Grady A. Roberts III, for appellants.

Suto Law, Alexander W. Suto, for appellee.

While we will never condone dilatory conduct by a defendant, it remains true that “[i]f the interest of justice demands that answer be given, a party’s remedy is to make timely request of the trial judge to affirmatively order an answer to the amended complaint.” Chan, supra at 80 (5), citing OCGA §§ 9-11-7 (a); 9-11-12 (a); 9-11-16 (a) and (d); 9-11-21; and 15-1-3 (4) and (6).

Because the Appellants were not required to file an answer to the amended complaint, “it follows that [they were] never in default and [the] default judgment was void.” (Citations and punctuation omitted.) Chan, supra at 79 (5).

Judgment reversed.

McMillian and Mercier, JJ., concur.

       The record before us does not contain an answer from Moore-Waters to the initial suit, although there is some indication that one may have been filed. However, as this is not an issue raised on appeal, we will not further address it here.

       There is no dispute that each Appellant was served with the amended complaint.

       We acknowledge that Met-Test has put forth a solid argument that Alphonso Waters and Family Practice of Atlanta Medical Group should have to answer the amended complaint since it was the first pleading ever served on them and since OCGA § 9-11-8 generally requires that a defendant file an answer to a complaint. We also note that OCGA § 9-11-12 (a) requires a defendant to serve its answer within 30 days after the service of the summons and complaint, unless otherwise provided hy statute. Yet, our precedent provides that no answer is needed by a newly added defendant unless the trial court so orders. Met-Test has not invited us to overrule such precedent, and we decline to do so sua sponte, especially given that Alphonso Waters and Family Practice of Atlanta Medical Group may have relied on such precedent in not filing an answer.


text:
    A15A1782.
    KIM v. FIRST INTERCONTINENTAL BANK.
    (782 SE2d 840)
   PHIPPS, Presiding Judge.

Chan K. Kim appeals from the trial court’s final judgment awarding First Intercontinental Bank (“FIB” or “the bank”) a security interest in certain real property. For reasons that follow, we affirm.

This case is before us for a second time. The facts, as fully outlined in Kim I, show that Yong Ho Han purchased a shopping center in Augusta, Georgia on December 22, 1999. Pursuant to the purchase and subsequent refinancing transactions, Han granted SunTrust Bank Augusta, N.A., security deeds on the property for $486,000 and $90,900. SunTrust properly recorded these security deeds.

In January 2006, Han conveyed to Kim by warranty deed an undivided one-half interest in the property. That same day, both men conveyed their interest by warranty deed to H&K Deans Bridge Properties, LLC. When these conveyances occurred, the SunTrust security deeds were within the chain of title, giving all parties notice of SunTrust’s interest. Neither Kim nor H&K recorded their warranty deeds at the time of conveyance.

In August 2006, Han refinanced his debt, this time with FIB. He granted the bank a security deed on the entire parcel in exchange for $620,000. FIB recorded its security deed, although the deed included an incorrect description of the property. The bank also paid off Han’s debt to SunTrust. At that point, FIB had no notice of the prior conveyances to Kim and H&K because their warranty deeds had not been recorded. Over two years later, on November 26, 2008, Kim and H&K finally recorded their 2006 warranty deeds. In January 2009, H&K conveyed the property back to Han and Kim via warranty deed.

FIB sued Han and Kim, seeking reformation of its security deed to correct the legal description of the property, as well as a declaration that, pursuant to equitable subrogation, it held a first priority lien position to the extent its funds were used to pay off Han’s SunTrust debt. Han did not answer suit, and the trial court granted FIB default judgment as to him. The trial court also awarded FIB summary judgment on the claims against Kim. It reformed the security deed, noting that “Kim’s interest in the Subject Property is subject to and encumbered by [the reformed] Security Deed... said deed being filed before the recordation of any interest in the Subject Property into Defendant Kim.” It also concluded that FIB was entitled to a decree of equitable subrogation. The trial court thus ordered: “For this additional reason, . . . Defendant Kim’s interest is subject to and encumbered by [FIB’s] Security Deed.”

Kim appealed the trial court’s order. On appeal, we rejected Kim’s challenge to the reformation ruling. We also upheld the trial court’s conclusion that equitable subrogation applies here. But we found that the trial court failed to properly calculate the subrogation amount, explaining that FIB “is entitled to subrogation only to the extent the loan proceeds extended to Han were used to satisfy the SunTrust deeds to secure debt.” We thus vacated the trial court’s judgment and remanded “so that the trial court may specify the amount to which [FIB] is subrogated.”

On remand, the trial court determined that FIB is equitably subrogated to a first-priority lien in the amount of $403,610.82, the sum FIB paid to satisfy the SunTrust security deeds. It further found that Kim’s interest in the entire property is encumbered by FIB’s reformed security deed, which apparently secures an amount that exceeds the subrogated interest. Kim appeals this new ruling, asserting that, under Kim I, FIB’s security interest does not extend beyond $403,610.82. He argues that “the entire Property should be released from the FIB security deed upon payment of the amount to which FIB is equitably subrogated.”

We disagree. In Kim I, we not only addressed the equitable subrogation issue, we approved the trial court’s ruling on FIB’s reformation claim. And that ruling included a determination that Kim’s interest is subject — or subordinate — to a reformed security deed. In addition to the first-priority lien FIB equitably obtained by paying off the SunTrust debts, therefore, FIB holds a recorded security deed that encumbers the entire property. Although the property description in the original security deed was incorrect, the deed has now been reformed to include the correct description. The reformed deed relates back to August 2006, when the parties executed and recorded the original security deed, and takes priority over subsequently filed interests, including Kim’s warranty deeds filed in 2008 and after the January 2009 reconveyance.

FIB’s interest in the reformed security deed is not limited by the amount to which it is subrogated. On the contrary, the reformed deed and subrogated first-priority lien represent different interests — one based upon a deed to secure debt and another arising in equity. Accordingly, we find no merit in Kim’s claim that FIB is secured only in the amount to which it is equitably subrogated.

Decided February 23, 2016.

Trotter Jones, William A. Trotter III, for appellant.

Fidelity National Law Group, Austin E. James; Weissman, Nowack, Curry & Wilco, Allison C. Jett, for appellee.

Judgment affirmed.

Doyle, C. J., and Boggs, J., concur.

       See Kim v. First Intercontinental Bank, 326 Ga. App. 424 (766 SE2d 655) (2014) (Kim I).

       Id. at 424-425.

       Id. at 425.

       Id.

       Id. at 427-428 (2).

       Id. at 425-427 (1) (a).

       Id. at 427 (1) (b).

       Id.

       Id. at 427-428 (2).

       See Bayview Loan Servicing v. Baxter, 312 Ga. App. 826, 829 (720 SE2d 292) (2011) (“It is well established that a lien takes effect, as against the interests of third persons without notice, from the time it is filed for record in the clerk’s office.”) (punctuation and footnote omitted); Potter’s Properties v. VNS Corp., 306 Ga. App. 621, 624 (703 SE2d 79) (2010) (equity will permit reformation of security deed even if reformation alters lienholder priority); DeGolyer v. Green Tree Servicing, 291 Ga. App. 444, 447 (1) (662 SE2d 141) (2008) (reformation of security deed relates hack to date of security deed’s execution).

       See Kim I, supra at 426 (1) (a) (equitable subrogation is a remedy arising in equity that allows FIB “to step into the shoes of the old creditor, SunTrust, in terms of priority’) (citation and punctuation omitted).


text:
    A15A2111.
    KENDRICK v. THE STATE.
    (782 SE2d 842)
   Peterson, Judge.

In this interlocutory appeal in a DUI prosecution, Lisa Kendrick argues that the trial court erred in denying her motion to suppress breathalyzer evidence showing she had a blood alcohol content of 0.15 because she did not freely and voluntarily consent to the breath test under our Supreme Court’s recent precedent in Williams v. State, 296 Ga. 817 (771 SE2d 373) (2015). Because we find the trial court properly considered the totality of the circumstances in finding that Kendrick consented to her breath test, we affirm.

“On appeal from a ruling on a motion to suppress, we construe the evidence most favorably to affirming the trial court’s factual findings and judgment.” Brooks v. State, 285 Ga. App. 624, 626 (647 SE2d 328) (2007). So viewed, the facts show that on May 24, 2014, an officer pulled Kendrick over for failing to stop at a stop sign and maintain her lane. The officer conducted several field sobriety tests on Kendrick. Although Kendrick generally performed well on most of the tests, her performance on one test indicated a possibility of intoxication. The officer placed Kendrick under arrest and handcuffed her. The officer then read Kendrick the standard implied consent notice for suspects 21 or over from a prepared card, which stated:

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

Kendrick replied “yes” and made no other comments, did not ask any questions about the implied consent notice or chemical breath test, and did not request an attorney. Kendrick was subsequently transported to jail and approximately 20 minutes later provided a breath sample for testing. Kendrick’s breath test showed that her blood alcohol content was 0.15, nearly twice the legal limit.

Kendrick filed a motion to suppress challenging her arrest and all evidence obtained against her, asserting that (1) the officer lacked probable cause for the stop, (2) the officer exceeded the duration, intent, and scope of the initial stop, (3) she was not read her Miranda rights, and (4) she did not freely and voluntarily consent to a test of her breath as required under Williams. Following an evidentiary hearing focused only on the Williams issue, and at which Kendrick and the arresting and testing officers testified, the trial court denied Kendrick’s motion to suppress. In particular, the trial court found that “under a totality of the circumstances,” Kendrick voluntarily consented to giving a breath sample. The trial court credited testimony by officers that Kendrick, in the trial court’s words, “appeared coherent, her language and speech patterns were normal, . . . she appeared to understand what was going on[,]” and did not otherwise appear confused. The trial court also viewed the video of the arrest, including where the officer read Kendrick the implied consent notice, and noted that Kendrick exhibited “no slurred speech, no odd behavior,” “rational and good communication skills with the officers[,]” no “extreme intoxication [,] ” and that the officer did not point any weapon at Kendrick or use force, threats, or promises, which the court said was consistent with witness testimony. Similarly, there was no testimony that any force or threats were used in the testing room.

On appeal, Kendrick challenges the denial of her motion to suppress, focusing her argument on her claim that she did not consent to the breath test. She asserts that the trial court erred by finding that Kendrick freely and voluntarily consented to a test of her breath under the Supreme Court of Georgia’s recent decision in Williams. Indeed, the parties appear to agree on all the relevant facts and evidence, and are in accord that the sole issue before this Court to resolve is whether Kendrick freely and voluntarily consented to a breath test as required under Williams. “Consequently, we review the trial court’s application of the law to the facts de novo, examining the entire record and making an independent determination of the ultimate issue of voluntariness.” State v. Fulghum, 261 Ga. App. 594, 594 (1) (583 SE2d 278) (2003) (citation and punctuation omitted).

The Fourth Amendment of the United States Constitution and Article I, Section I, Paragraph XIII of the Georgia Constitution both protect an individual’s right to be free of unreasonable searches and seizures, and apply with equal force to the compelled withdrawal of blood, breath, and other bodily substances. See Williams, 296 Ga. at 819; Cooper v. State, 277 Ga. 282, 285 (587 SE2d 605) (2003); Lutz v. State, 274 Ga. 71, 72 (1) (548 SE2d 323) (2001); State v. Johnston, 249 Ga. 413, 414 (2) (291 SE2d 543) (1982); Davis v. State, 332 Ga. App. 488, 490 (773 SE2d 442) (2015). Because a breath test is a search within the meaning of the Fourth Amendment, absent a warrant, the State must show that it falls into one of the “specifically established and well-delineated exceptions” to the warrant requirement. Williams, 296 Ga. at 819.

Consent is a valid basis for a warrantless search where it is given freely and voluntarily, and the State does not argue that any other exception might apply. Id. at 821. Therefore, the only question in regard to the validity of the search is whether the State met its burden of proving that Kendrick actually consented “freely and voluntarily under the totality of the circumstances.” Id. (citation and punctuation omitted).

Historically, we considered a defendant’s affirmative response to the reading of the implied consent notice as sufficient to allow a search of his or her bodily fluids without further inquiry into the validity of the defendant’s consent. See, e.g., Meiklejohn v. State, 281 Ga. App. 712, 714 (637 SE2d 117) (2006); State v. Lewis, 233 Ga. App. 390, 392 (1) (504 SE2d 242) (1998). However, Williams rejected this per se rule automatically equating an affirmative response to the implied consent notice with actual consent to a search within the meaning of the Fourth Amendment. Williams, 296 Ga. at 821-22. Instead, courts must now conduct a case-by-case analysis, considering the totality of the circumstances. Id.

A “totality of the circumstances” analysis is not new to Georgia courts. “A consent to search will normally be held voluntary if the totality of the circumstances fails to show that the officers used fear, intimidation, threat of physical punishment, or lengthy detention to obtain the consent.” Cuaresma v. State, 292 Ga. App. 43, 47 (2) (663 SE2d 396) (2008). Nor may consent be “coerced, by explicit or implicit means, by implied threat or covert force.” Schneckloth v. Bustamonte, 412 U.S. 218, 228 (II) (B) (93 S. Ct. 2041, 36 LE2d 854) (1973). Other factors to be considered are “prolonged questioning;... the accused’s age, level of education, intelligence . . . and advisement of constitutional rights; and the psychological impact of these factors on the accused.” State v. Austin, 310 Ga. App. 814, 817-18 (1) (714 SE2d 671) (2011). Moreover, “[w]hile knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.” Schneckloth, 412 U.S. at 227 (II) (B). Instead, the court should consider whether “a reasonable person would feel free to decline the officers’ request to search or otherwise terminate the encounter.” Austin, 310 Ga. App. at 820 (1) (citing Johnson v. State, 297 Ga. App. 847, 849 (678 SE2d 539) (2009)); State v. Durrence, 295 Ga. App. 216, 218 (671 SE2d 261) (2008). “Mere acquiescence to the authority asserted by a police officer cannot substitute for free consent.” State v. Jourdan, 264 Ga. App. 118, 121 (1) (589 SE2d 682) (2003) (citation omitted); Hollenback v. State, 289 Ga. App. 516, 519 (657 SE2d 884) (2008).

In this case, the evidence does not show that the officers “used fear, intimidation, threat of physical punishment, or lengthy detention to obtain the consent.” Cuaresma, 292 Ga. App. at 47 (2). Both the officer and Kendrick conducted themselves calmly. Nor does Kendrick argue that youth, lack of education, or low intelligence somehow negated the voluntariness of her consent. Rather, the crux of her argument appears to be that she felt coerced into giving consent because she was not informed of her constitutional right against unreasonable searches and seizures and because the language of the implied consent notice, when read to her while she was arrested and in handcuffs, made her feel as though she did not have a choice but to acquiesce.

The Supreme Court of the United States and other courts have rejected invitations to create a duty to inform suspects of their constitutional right against unreasonable searches and seizures, and we will not depart from their well-worn path. See Schneckloth, 412 U.S. at 231 (II) (B) (such a suggestion “has been almost universally repudiated by both federal and state courts, and we think, rightly so”) (citations and footnotes omitted). Moreover, in analyzing other challenges regarding implied consent, we have found circumstances under which officers merely inform a suspect of “the permissible range of sanctions that the state may ultimately be authorized to impose” under the implied consent statute, as appears to have been done here, not to constitute coercion. Gutierrez v. State, 228 Ga. App. 458, 460 (2) (491 SE2d 898) (1997) (citation and punctuation omitted). Nor does the fact that Kendrick was in handcuffs negate her ability to give consent. See Silverio v. State, 306 Ga. App. 438, 446 (3) (702 SE2d 717) (2010).

We are unpersuaded by the cases Kendrick cites in support of her argument that her affirmative response to the implied consent notice was merely an acquiescence to authority. In each of those cases, the suspects were not presented with a choice, and the officers made clear that the “search” was going to occur regardless of their consent. See, e.g., Hollenback, 289 Ga. App. at 519 (officer informed suspect he was going to search vehicle before she would be allowed to drive it away); Cuaresma, 292 Ga. App. at 44, 47 (2) (officer told suspect to either consent or he would call a dog, and generally behaved in an intimidating, harassing, and threatening manner); Fulghum, 261 Ga. App. at 595 (2) (officer told defendant that he needed to enter and search the residence); State v. Harris, 236 Ga. App. 525, 529 (2) (b) (ii) (513 SE2d 1) (1999) (when officer asked suspect “would she empty the purse” and suspect complied silently, we held that “[s]ilence in the face of a request for permission to search may sometimes be interpreted as acquiescence, but such acquiescence cannot substitute for free consent”). But here, the implied consent notice accurately recites Georgia law as contained within OCGA § 40-5-67.1(b)(2) and informs the suspect of her choice of either agreeing or refusing to submit to chemical testing, and the possible consequences for each choice. OCGA § 40-5-67.1(b)(2). In response to thatnotice, Kendrick responded an affirmative “yes.”

Kendrick argues that “[c]onsent under the implied consent statute does not per se equal consent for Fourth Amendment purposes.” This is correct. However, Kendrick also argues that in

Williams v. State, the Georgia Supreme Court clearly ruled that in order for a compelled search of a person’s bodily substances to comply with the Fourth Amendment to the United States Constitution, the state must show more than just mere consent under Georgia’s Implied Consent Statute.

This is not a correct characterization of Williams. Williams held that the State’s proof only of an affirmative answer to the question posed by the implied consent language, standing alone and regardless of what other facts may exist, is not sufficient to prove actual and voluntary consent because it fails to consider the totality of the circumstances. Williams, 296 Ga. at 822-23. But we do not read Williams’ rejection of a per se rule of consent under the implied consent statute as authorizing us to replace it with its opposite — that is, a per se rule that the State must always show more than consent under the implied consent statute. Rather, we take the Supreme Court at its word when it instructed trial courts to review the totality of the circumstances in determining consent.

An affirmative response to the question posed by the implied consent language may be sufficient for a trial court to find actual consent, absent reason to believe the response was involuntary. Here, Kendrick gave an affirmative answer to the question posed by the implied consent language, which is necessarily part of the circumstances to be considered by the trial court. She did not attempt to change that answer during the time that elapsed before testing. See Ware v. State, 309 Ga. App. 426, 428 (710 SE2d 627) (2011) (“once ... voluntary consent is legally obtained, it continues until it either is revoked or withdrawn”). She did not appear so impaired that she was unable to understand what she was being asked, she did not express any objection to the test, and the officer did not force her to take the test. Compare Cuaresma, 292 Ga. App. at 44, 47 (2); Fulghum, 261 Ga. App. at 595-96 (2). During the hearing on her motion to suppress, although Kendrick testified that she thought the breath test was mandatory, she also said that her decision to submit to testing was motivated, at least in part, by a desire to keep her license, a recognition of the actual choice she had. See, e.g., State v. Modlin, 291 Neb. 660, 674-75 (867 NW2d 609) (2015) (noting that although the legal consequences of an administrative license revocation make refusal of a chemical test a difficult choice to make, “the difficulty of such choice does not render consent involuntary”). On this record, and considering all of the facts before us, and affording appropriate deference to the trial court that heard the testimony first-hand, we affirm.

Decided February 23, 2016.

Law Office of Gregory Hicks, Amanda G. Speights; Burns & Speights, Archie L. Speights, for appellant.

Jessica K. Moss, Solicitor-General, Jeffrey G. Huong, Assistant Solicitor-General, for appellee.

Judgment affirmed.

Dillard and McFadden, JJ., concur.

       Video evidence from the traffic stop shows that Kendrick appears to have also blown a positive preliminary alcohol screen, though this fact was not mentioned by either of the parties below or on appeal. Although the video in which it appears is part of the record on appeal, we decline to afford it weight in the absence of argument from the parties as to its significance. Our analysis would be no different, however, if we did consider it.

       The specific language of this notice appears verbatim in OCGA § 40-5-67.1(b)(2).

       Kendrick’s brief on appeal could be construed as also challenging the implied consent statute as unconstitutional in that the language the statute requires officers to read is inherently coercive. If this appeal presented such a question, we would lack jurisdiction and would be required to transfer the case to the Supreme Court. It does not, however, because Kendrick did not directly challenge the constitutionality of the statute below and the trial court did not rule on it. Therefore, we can neither transfer the matter nor rule on constitutionality of the statute. City of Decatur v. DeKalb County, 284 Ga. 434, 436-38 (1), (2) (668 SE2d 247) (2008). We also observe that our Supreme Court has previously upheld the implied consent statute against a challenge much like Kendrick’s. See Klink v. State, 272 Ga. 605, 606 (1) (533 SE2d 92) (2000). Although subsequent development of the law may have substantially eroded Klink’s analytical foundation, compare Klink, 272 Ga. at 606 (1) (holding based in part on observation that “[t]he right to refuse to submit to state administered testing is not a constitutional right, but one created by the legislature”) with Williams, 296 Ga. at 819-20 (holding Fourth Amendment requires actual consent in absence of warrant or other exceptions to warrant requirement), it remains binding on us until overturned by the Supreme Court.

        Williams is not a case about the facts, but rather is about the standard that the trial court is to apply. In Williams, the trial court concluded that the implied consent statute, “in and of itself,” constituted an exception to the Fourth Amendment; accordingly, the trial court did not look beyond compliance with the statute in denying Williams’ motion to suppress. Williams, 296 Ga. at 819. The Supreme Court disagreed and held that the trial court’s error was its “fail[ure] to address whether Williams gave actual consent to the procuring and testing of his blood, which would require the determination of the voluntariness of the consent under the totality of the circumstances.” Id. at 823. The Court did not discuss the facts or any possible result of the trial court’s future application of the correct test, leaving that for the trial court to do upon remand.

       We express no opinion as to what significance greater impairment might have had for this question.

       We do not approve the trial court’s language in granting the order based in any part on finding a license to be a “privilege” rather than a “right.” “[RJelevant constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated a ‘right’ or a ‘privilege.’ ” State v. Callaway, 236 Ga. 613, 614 (1) (225 SE2d 230) (1976).