author: Ray, Judge.

text:
    A14A1876.
    THE STATE v. NEW.
    (770 SE2d 239)
   Ray, Judge.

The State appeals from the grant of a motion to suppress filed by Kevin Charles New after he was indicted for his alleged possession of methamphetamine with intent to distribute, possession of methamphetamine, and possession of marijuana, all pursuant to OCGA § 16-13-30; theft by receiving, in violation of OCGA § 16-8-7; and possession of a drug-related object under OCGA § 16-13-32.2. The State contends that the trial court erred in granting the motion because law enforcement acted reasonably under the totality of the circumstances and OCGA § 17-5-30 only requires suppression of evidence seized during an unlawful search; law enforcement acted in good faith; and the purposes of the exclusionary rule are not served in this case by suppressing the evidence. For the reasons that follow, we are constrained to affirm.

[Tjhree fundamental principles . . . must be followed when conducting appellate review of a trial court’s ruling on a motion to suppress. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and [her] findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. These principles apply equally whether the trial court ruled in favor of the State or the defendant.

(Citations and punctuation omitted.) Brown v. State, 293 Ga. 787, 802-803 (3) (b) (2) (750 SE2d 148) (2013). To the extent that “the evidence at a suppression hearing is uncontroverted and the credibility of witnesses is not in question, we conduct a de novo review of the trial court’s application of the law to the undisputed facts.” (Citation omitted.) Jones v. State, 291 Ga. 35, 36-37 (1) (727 SE2d 456) (2012).

The undisputed evidence adduced at the motion to suppress hearing shows that on or about November 15, 2012, law enforcement officers with Hall County’s Multi-Agency Narcotics Squad (“MANS Unit”) learned from a Gwinnett County police officer that New possessed or was selling drugs. An officer with the MANS Unit at the time of the search testified that he did not know the source of the Gwinnett officer’s information, and that he could not have gotten a search warrant because “[w]e didn’t have any probable cause” and because “[t]here was no . . . evidence to back up that [New] was actually selling” drugs.

Prior to initiating the search, Agent Casey Ivey, who was working with the MANS Unit, contacted the Gainesville Probation Office to verify New’s probation status. He was given a copy of New’s sentence, which included a waiver of New’s Fourth Amendment rights against search and seizure. Officers then went to New’s address. He walked out from the area near his detached garage to meet them, but when the officers told him they were there to search him pursuant to his Fourth Amendment waiver, New told them his probation had been terminated early. Agent Ivey showed New the copy of his sentence, which said he had waived his Fourth Amendment rights through the remainder of his probation. According to those documents, his probation was not scheduled to end for another three years. New told officers at least three times that he was no longer on probation, so prior to initiating any search, two other officers each separately verified New’s probation status. One officer called Hall County Dispatch, which checked both the National Crime Information Center (“NCIC”) and the Georgia Crime Information Center (“GCIC”) databases and confirmed that New was on probation; the other officer contacted a representative from the probation office, who also confirmed that New was on probation and had a valid Fourth Amendment waiver.

The agents, without seeking or obtaining New’s consent, then searched his person, the curtilage of his home, and a detached garage and the apartment above it. They found a glass smoking device containing methamphetamine residue in New’s left front pocket. When agents retraced the path New walked from his garage to meet them, they discovered a butane lighter and a “hide-away can,” labeled as an energy drink, that contained methamphetamine and marijuana. Agents also found in an apartment above the garage a large sum of money and a GPS device that checked out as stolen.

However, New’s probation for the drug offenses to which he had pled guilty had indeed been terminated early and his Fourth Amendment waiver was no longer valid. Nicole Johnson, a Hall County probation officer, had completed and submitted New’s early termination papers, and on March 14, 2012 — eight months prior to the search in question — a judge issued an order approving the early termination of New’s probation without a court adjudication of guilt pursuant to the Probation of First Offenders Act, OCGA § 42-8-60 et seq.

After the search, New moved to suppress the evidence, and the trial court granted his motion. The State appeals.

1. The State first contends that the trial court erred in granting the motion to suppress because law enforcement acted reasonably under the “totality of the circumstances”; thus, it argues that the search was lawful and that OCGA § 17-5-30 requires suppression only during an unlawful search.

OCGA § 17-5-30 (a) provides, in pertinent part, that: “A defendant aggrieved by an unlawful search and seizure may move the court... to suppress as evidence anything so obtained on the grounds that: (1) The search and seizure without a warrant was illegalf.]”

It is undisputed that New was not on probation and that there was not a valid waiver of his Fourth Amendment rights at the time of the search. Thus, in the context of this enumeration, we must examine whether the warrantless searches of New’s property and of New himself, in his capacity as a former probationer with full Fourth Amendment rights, were reasonable and lawful.

“Ordinarily, a search by a police officer must be supported by a search warrant, consent, or exigent circumstances.” (Citation omitted.) Prince v. State, 299 Ga. App. 164, 170 (3) (b), n. 7 (682 SE2d 180) (2009). “It is well established that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” (Citations and punctuation omitted.) Davis v. State, 262 Ga. 578, 580 (1) (422 SE2d 546) (1992).

The State concedes that officers neither sought nor received New’s consent to search, and that there was no probable cause to justify a search warrant. The State does not argue that any exigent circumstances existed to justify the searches. See Brown v. State, 330 Ga.App. 488, 491 (1) (767 SE2d 299) (2014) (exigencies could include preventing imminent destruction of evidence, pursuing a fleeing suspect, or helping people who are injured or threatened with imminent injury). Also, New was not searched incident to a lawful arrest. See OCGA § 17-5-1. See generally Lindsey v. State, 282 Ga.App. 644, 649 (639 SE2d 584) (2006) (where no probable cause existed to believe defendant had committed a crime and where officer lacked any reason to believe a search was necessary for safety, a full search of defendant’s person was an unreasonable intrusion).

Given that New was not a probationer and had not waived his Fourth Amendment rights, the searches and seizures were not valid.

2. The State next argues that the trial court erred in granting the motion to suppress because law enforcement officers acted in good faith when conducting the searches given their reasonable belief that New was on probation and subject to a Fourth Amendment waiver of rights; thus, it contends, the search was reasonable and legal.

However, our Supreme Court has found that Georgia recognizes no good faith exception to the exclusionary rule. In Gary v. State, 262 Ga. 573, 575 (422 SE2d 426) (1992), our Supreme Court held that the good faith exception to the exclusionary rule of United States v. Leon, 468 U. S. 897 (104 SCt 3405, 82 LE2d 677) (1984), does not apply in Georgia. Gary involved the seizure of tangible evidence pursuant to a search warrant that was later found to lack probable cause. Gary, supra at 573-574, 577. The Gary court reasoned that the Leon good faith exception stemmed from the federal judiciary’s modification of a judicially-created exclusionary rule, but because Georgia’s legislature had codified a specific exclusionary rule in OCGA § 17-5-30, “infusion of the Leon good-faith exception into the statute would be tantamount to judicial legislation.” (Footnote omitted.) Gary, supra at 575.

The State argues that the Supreme Court’s later ruling in Harvey v. State, 266 Ga. 671 (469 SE2d 176) (1996), opens the door to a different result. Harvey involved a search incident to arrest where the officer reasonably believed he was exercising a valid arrest warrant when, in fact, the warrant had been recalled. Id. at 671-672. The Harvey court reasoned that because, at the moment the arrest was made, the officer “knew” there was a valid warrant, probable cause existed to support the arrest because “probable cause must be measured by current knowledge, i.e., at the moment the arrest was made and not hindsight.” (Citations and punctuation omitted.) Id. at 672-673. Having found that the arrest was supported by probable cause, the Harvey court determined that Harvey’s motion to suppress had been correctly denied. Most significantly for our purposes, the court found that “the applicability of the Leon ‘good faith’ exception is not implicated by this case.” (Emphasis supplied.) Id. at 674.

In the instant matter, however, no intermediary action exists — unlike the arrest in Harvey — that can be deemed valid or supported by probable cause thanks to officers’ reasonable belief, and which could be used to sidestep the direct application of the good faith exception to the search and seizure. The only possible justification for the search and seizure involving New is the officers’ good faith belief that he was on probation and subject to a valid Fourth Amendment waiver, and that option is foreclosed by Gary

We find two more recent Supreme Court of Georgia cases more closely aligned with the instant action in that they, too, lack an intermediate event such as an arrest that was ultimately found to be supported by probable cause and which could be used as a springboard to justify a later search and seizure. In Harper v. State, 283 Ga. 102, 106-107 (2) (657 SE2d 213) (2008), where an officer relied on a warrant that later was found to be unsupported by probable cause and a valid warrant was required to search the defendant’s desk, the evidence seized from the desk had to be suppressed because Georgia has no good faith exception to the exclusionary rule. Accord Beck v. State, 283 Ga. 352, 352-353 (1) (658 SE2d 577) (2008) (where officers relied on a search warrant issued by a person who lacked authority to do so, the warrant was invalid, the Court of Appeals erred in upholding its validity, and the trial court erred in denying the motion to suppress because Georgia recognizes no good faith exception to the exclusionary rule).

More directly on point in the context of warrantless searches is State v. Gallup, 236 Ga. App. 321 (512 SE2d 66) (1999), where, after more than 80 storage units were vandalized in a single night, police initially searched the units without a warrant. Id. at 321. However, during that search, one officer opened a refrigerator and saw what appeared to be marijuana. Another officer then obtained a search warrant and seized the marijuana. Id. at 322. Citing Gary, we affirmed the trial court’s grant of defendant’s motion to suppress, reasoning that the officer exceeded the lawful scope of his investigation of the burglary and vandalism. Id. at 324 (1) (c). We also found that no exigent circumstances existed to justify the warrantless opening of the refrigerator and that “[t]here is in Georgia no ‘good faith’ exception to our statutory exclusionary rule, OCGA § 17-5-30.” Id. at 325 (2).

The State also cites to several cases involving warrantless searches where a person other than the defendant consents to the search, arguing that an officer’s reasonable belief that an unauthorized person may consent renders the search valid. However, both cases cited by the State, Warner v. State, 299 Ga. App. 56, 59 (1) (681 SE2d 624) (2009) (parents consenting to search of adult son’s bedroom in their house) and Ford v. State, 214 Ga. App. 284, 285 (1) (447 SE2d 334) (1994) (adult sister consenting to search of her adult brother’s bedroom in her apartment), involved situations in which the appellate court ultimately determined that there was some evidence supporting the lower court’s factual finding that the person giving consent had authority to do so. Those appellate courts were bound by the standard of review: “[w]hen reviewing a trial court’s ruling on a motion to suppress, we apply the ‘any evidence’ standard, which means that we sustain all of the trial court’s findings of fact that are supported by any evidence.” (Citations and punctuation omitted.) Warner, supra at 58 (1). We, too, are bound by that standard. In the instant case, there is no evidence that New was actually on probation or had a valid Fourth Amendment waiver in place at the time of the search and seizure.

Citing Ford, supra at 286-287 (3), the Warner court posits in conditional language, that “[a] warrantless search based on unauthorized consent could nonetheless be upheld if the law enforcement officer conducting the search reasonably (albeit erroneously) believed the consent given was valid.” (Citation and punctuation omitted; emphasis supplied and in original). Warner, supra at 59 (1). However, this proposition arguably is dicta in both Ford and Warner as the issue was squarely before neither court. We cannot base a decision on dicta in the face of Gary’s mandate. See Walker v. State, 290 Ga. 696, 700 (2) (723 SE2d 894) (2012) (where obiter dicta was cited in cases that “either failed to mention or failed to analyze the relevant language” of a statute, the dicta was not binding on the court in a later case where the issue actually was presented for decision).

3. Finally, the State argues that because the primary purpose of the exclusionary rule is to deter police misconduct, its purposes would not be served in the instant case where the officers in the field acted in good faith and the trial court erred in suppressing the evidence.

This argument has some merit, although like many issues, there are two sides to the story and competing interests are at play.

Indeed, “[t]he primary reason for the exclusionary rule is to deter police misconduct, whether it be negligent or intentional.” State v. Stringer, 258 Ga. 605, 606 (372 SE2d 426) (1988). As the State contends, where police have acted in good faith, there would be no deterrent effect. However, as New points out, there may have been some negligence by officers checking and updating his probationary file. The record shows that a judge had terminated New’s probation eight months prior to the search in question; however, his probation records were not fully updated to show his status until seven months after the search at issue. If this is the result of negligence, logically, excluding the evidence at issue here could have the requisite deterrent effect on police misconduct.

Regardless, our decision herein is not dictated by policy, but by OCGA § 17-5-30 and by Gary. Georgia recognizes no good faith exception. However, our legislature might wish to consider the rationale in Leon. There, the United States Supreme Court found that a judicially created exception to the exclusionary rule was permitted given that the Fourth Amendment has no provision “expressly precluding the use of evidence obtained in violation of its commands, and an examination of its origin and purposes makes clear that the use of fruits of a past unlawful search or seizure works no new Fourth Amendment wrong.” (Citation and punctuation omitted.) Leon, supra at 906 (II) (A). Further, the Leon court recognized that if too strictly applied, the exclusionary rule exacts certain social costs, including an interference with the functions of judges and juries.

An objectionable collateral consequence of this interference with the criminal justice system’s truth-finding function is that some guilty defendants may go free or receive reduced sentences as a result of favorable plea bargains. Particularly when law enforcement officers have acted in objective good faith or their transgressions have been minor, the magnitude of the benefit conferred on such guilty defendants offends basic concepts of the criminal justice system. Indiscriminate application of the exclusionary rule, therefore, may well generate disrespect for the law and administration of justice.

Decided March 12, 2015

Lee Darragh, District Attorney, Zachary H. Smith, Assistant District Attorney, for appellant.

Summer & Summer, Daniel A. Summer, for appellee.

Id. at 907-908 (II) (A).

From a philosophical standpoint, this rationale is valid. The fact that it is not accepted in Georgia, because (as outlined in Gary) we have a legislatively created exclusionary rule rather than a judicially created exclusionary rule, makes it no less valid. Without a good faith exception in this context, we essentially demand perfection from police, yet do not require it of prosecutors, defense counsel, or even judges.

Judgment affirmed.

Andrews, P. J., and McFadden, J., concur in judgment only.

       In its reply brief, the State contends that officers had a “good-faith suspicion for the search based upon information from a law enforcement officer in Gwinnett County that [New] was in possession [of] and distributing drugs.” However, this standard applies to probationers in certain contexts, and New was not on probation at the time of the search. See Prince, supra at 169-170 (3) (b), n. 7.

       We note that the rationale the Harvey 4-3 majority employed in order to find probable cause engendered vehement dissents. See id. at 674-678.

       We are not unsympathetic to the State’s assertion that the facts herein are of sufficient similarity to those in Harvey such that it would be logical to extend the ruling in Harvey in this context. However, given the pronouncement in Gary against judicial creation of a good faith exception to the statutory exclusionary rule in Georgia and our Supreme Court’s apparent conflict in Harvey, we think any extension of the holding in Harvey is best left to our Supreme Court itself.

        Ford, supra at 287 (3), also cites Davis, supra. Davis was issued just days after the Gary decision declaring that Georgia recognizes no good faith exception to the exclusionary rule. Davis involved a ten-year-old child who consented to a search of his parents’ home. Id. at 578. The Davis decision was limited by its own terms to a single issue: “whether, under the particular facts of this case, the consent to search given by the child in this case was valid[,]” and the Davis court determined that it was not. Id. at 579, 581 (1). Davis cites Gary in a footnote without comment or context, hut this issue was not squarely before the Davis court, and it rendered no decision on the interplay of the good faith exclusion with the evidence gleaned from the illegal search. See id. at 580 (1), n. 1 and 583 (4). See also Ford, supra at 289 (3) (Blackburn, J., dissenting).


source: Caselaw Access Project

author: Phipps, Chief Judge.

license: Public Domain

text:
    A14A2028.
    ODLE v. THE STATE.
    (770 SE2d 256)
   Phipps, Chief Judge.

In connection with a bank robbery, Michael Odie was tried by a jury and found guilty of three counts of armed robbery, nine counts of aggravated assault, nine counts of false imprisonment, and two counts of possession of a firearm during the commission of a felony. Odie appeals the denial of his motion for new trial, challenging the sufficiency of the evidence and the court’s determination that he was not denied effective assistance of trial counsel. We affirm.

1. Odie contends that the evidence was insufficient to support his convictions. He asserts that “[w]ithout question, someone committed the offenses,” but argues that the state failed to prove that he was that person. According to Odie, the state’s case was based on the uncorroborated testimony of an alleged accomplice, in violation of OCGA § 24-14-8.

When a defendant challenges the sufficiency of the evidence supporting his criminal conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

So viewed, the evidence adduced at trial included the following. L. B. testified that on September 2, 2011, she was working as a teller at a bank branch when a masked man wearing a tan cap, white tee shirt, and jeans entered the bank. The man was brandishing a handgun, and went to each teller’s station. L. B. watched as the other tellers gave the man money. When the man pointed the gun at L. B., who “fear[ed] [for] her life,” L. B. placed money and a tracking device in a bag and gave it to the man.

A. S. testified that she was working as a teller at the bank on the date of the robbery when, at about 10:45 a.m., she noticed a masked man standing at another teller’s station. The masked man said, “hurry up or I am going to shoot,” and the other teller gave the man money. The man then went to A. S.’s station, pointed a gun at her, and demanded that she put money in the bag he provided. She complied, and gave him the money. The man ordered A. S. and her customer, J. S., to get on the floor, which they did. The man then walked to other teller stations and demanded money from two more tellers.

A third teller, M. N., testified that the masked man held a gun to his face and ordered him to put money in the bag; M. N. complied and gave him the bag. The man ordered M. N. to get on the ground, and he did so.

A fourth teller, S. M., testified that the man approached her, ordered her to give him money and warned, “hurry or I will shoot.” She put money in a bag that the man had provided, handed it to him, and got down on the floor as he had ordered “everybody” to do.

Five bank customers testified for the state. Customer L. B. testified that she was conducting business at the bank when a man ordered her to get down on her knees, which she did. The man had a gun and, as customer L. B. described, “I couldn’t leave with him in there.” G. R. testified that a masked gunman told her to get down on the ground, and that she did not feel that she was free to leave while he was in the bank. R. L. testified that he was conducting business in the bank when a masked gunman entered, demanded money from the tellers, and told him to get on the ground. He complied. R. L. did not feel free to leave while the gunman was in the bank. H. R. testified that she and her husband (M. R.) were conducting business in the bank when a masked man wielding a gun demanded money from the tellers and then ordered people standing in the lobby, including the couple, to get on the ground. They complied. H. R. testified that she did not feel she was free to leave when the gunman was in the bank, because she was afraid; when asked if her husband had felt free to leave, H. R. replied that he had “felt the same way.”

J. S. testified that he was in the bank when it became quiet and a teller gestured for him to sit down. He then noticed a man wearing a face covering and holding a gun. J. S. “got kind of scared. I kind of froze.”

Apolice officer testified that at about 10:44 a.m. on September 2, 2011 she was in her police vehicle when she was advised of an armed robbery at a bank. Based on information broadcast by police regarding the location of a tracking device, the officer turned her vehicle around and began to follow the only other vehicle in the area. She activated the police vehicle’s emergency lights and siren. The vehicle being pursued accelerated, entered an office park, and stopped abruptly. The officer stopped, too, then saw a man wearing a white tank top and blue jeans jump from the passenger side of the vehicle, throw something, and run behind a building toward a wooded area. The officer lost sight of the fleeing man. The driver of the pursued vehicle, D. H., exited the vehicle and, after being ordered to do so by the officer, got on the ground; the officer then handcuffed and detained him.

Additional officers arrived, and they searched the wooded area for the man who had fled. Minutes later, an officer spotted a man running “on the other side of the wooded area.” Officers pursued him on foot through the wooded area. They found a man lying in the woods, out of breath; his leg was caught in the brush, and he had to be extricated by an officer. That man, Odie, was wearing a white tank top and blue athletic shorts. Officers found in the wooded area a pair of blue jeans and a tan cap. They found two white tee shirts, one of which was tucked inside the other, on the asphalt near D. H.’s vehicle. Officers also found on the ground near the vehicle a bag containing cash and a tracking device. Odie was arrested. Bank surveillance video, which was shown to the jury at trial, showed that the robber had worn a white tee shirt, blue jeans and a tan hat.

Odie and D. H. were jointly indicted for the crimes. ****14Before trial, D. H. entered a plea of guilty to the indictment, and agreed to testify as a witness for the prosecution in Odle’s trial.

D. H. testified at trial that he drove Odie away from the bank after the robbery; that a police vehicle made a u-turn and began following them; that during that drive, Odie removed two white tee shirts he had been wearing over a white tank top, threw a bag of money onto D. H.’s lap and, wearing a white tank top and jeans, jumped out of the vehicle and ran; and D. H. threw the bag of money out the vehicle’s window. D. H. also testified that Odie had arrived at his (D. H.’s) home that morning wearing blue basketball shorts, but had changed into a pair of blue jeans during the ride to the bank; and that he and Odie had communicated by text message the morning of the robbery. The state introduced cell phone records showing that the following text message was sent from Odle’s cell phone to D. H.’s cell phone at 8:42 a.m. that morning: “[W]hat’s up? We still on. What?”

Citing OCGA § 24-14-8, Odie asserts that the evidence was insufficient to prove his participation in the crimes, because there was no credible evidence corroborating the testimony of the alleged accomplice. But the state did not rely solely on the testimony of the accomplice. Thus, the statute’s corroboration requirement is inapplicable in this case.

Notwithstanding, we point out that only slight evidence is required to corroborate an accomplice’s testimony. The independent corroborating evidence need only “justify an inference that [the defendant] is guilty.” D. H.’s testimony was corroborated in several respects, as set out above. Whether his testimony was credible and whether it was sufficiently corroborated (assuming arguendo that OCGA § 24-14-8 applied here) were issues for the jury to determine.

Thus, Odle’s contention is without merit. The evidence presented was sufficient to authorize a rational jury to find Odie guilty of the charged crimes beyond a reasonable doubt.

2. Odie contends that the court erred by determining that he was not denied effective assistance of trial counsel. Odie asserts that trial counsel rendered ineffective assistance because he failed to object when the prosecutor elicited “hearsay testimony and speculation” from one of the bank customers (H. R.) regarding the aggravated assault and false imprisonment counts involving her husband, who did not testify at trial.

In order to prevail on a claim of ineffective assistance of counsel, a convicted defendant must show that counsel performed deficiently and that the deficient performance prejudiced the defendant such that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different. Upon appellate review of that claim, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

Decided March 12, 2015.

Patricia M. Moon, for appellant.

Richard R. Read, District Attorney, Roberta A. Earnhardt, Assistant District Attorney, for appellee.

Odie complains about H. R.’s testimony that M. R. got on the ground when directed to do so, and that M. R. had “felt the same way” she had (i.e., not free to leave the bank when the robber was present). The testimony was not hearsay.

Under OCGA § 24-8-801 (c) (in effect at the time of the trial), “ ‘ [h] earsay’ means a statement, other than one made by the declarant while under oath testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” “ ‘Statement’means (1) [a]n oral or written assertion; or (2) [n]onverbal conduct of a person, if it is intended by the person as an assertion.” H. R. did not testify to any statement allegedly made by M. R. Thus, the trial court would have been correct to overrule a hearsay-based objection to the cited testimony.

To the extent Odle’s complaint is that counsel rendered ineffective assistance because he failed to object to testimony that was speculative, it is also without merit. Proof that a victim was placed in apprehension of immediately receiving a violent injury need not be by the victim’s testimony, as it may be inferred from the conduct of the victim, and the state of mind of the victim of assault may be established by circumstantial evidence. Consequently, Odie has failed to demonstrate prejudice in regard to the testimony at issue, and his ineffective assistance of counsel claim fails.

Judgment affirmed.

Ellington, P. J., and McMillian, J., concur.

       OCGA § 16-8-41.

       OCGA § 16-5-21.

       OCGA § 16-5-41.

       OCGA § 16-11-106.

       (Emphasis supplied.)

       OCGA § 24-14-8 provides:
      The testimony of a single witness is generally sufficient to establish a fact. However, in certain cases, including.. . felony cases where the only witness is an accomplice, the testimony of a single witness shall not be sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness, except in prosecutions for treason.
      See Ga. L. 2011, p. 99, § 101 (explaining that the provisions of Georgia’s new Evidence Code apply to trials commencing on or after January 1, 2013). The trial in this case commenced on February 25, 2013, so the new Evidence Code provision (OCGA § 24-14-8) applies.

        Stills v. State, 327 Ga. App. 767, 768 (761 SE2d 159) (2014) (citation, punctuation and emphasis omitted); see Styles v. State, 329 Ga. App. 143, 144 (1) (764 SE2d 166) (2014).

       We refer to this witness as “customer L. B.” so as to distinguish her from the teller L. B., discussed above.

       Counts 1-3 involved the armed robbery, aggravated assault and false imprisonment of teller L. B.; Counts 4-6 involved the armed robbery, aggravated assault and false imprisonment of A. S.; Counts 7-9 involved the armed robbery, aggravated assault, and false imprisonment of S. M.; Counts 10 and 11 involved the aggravated assault and false imprisonment of customer L. B.; Counts 12 and 13 involved the aggravated assault andfalseimprisonment of G. R.; Counts 14 and 15 involved the aggravated assault and false imprisonment of R. L.; Counts 16 and 17 involved the aggravated assault and false imprisonment of H. R.; Counts 18 and 19 involved the aggravated assault and false imprisonment of M. R.; Counts 20 and 21 involved the aggravated assault and false imprisonment of J. S.; Counts 22 and 23 involved the firearm possession charges. None of the counts involved teller M. N.

       See Ross v. State, 245 Ga. 173, 177 (5) (263 SE2d 913) (1980), citing Ga. Code Ann. § 38-121, later redesignated as OCGA § 24-4-8, then as OCGA § 24-14-8.

        Stills, supra at 769 (2).

        Lindsey v. State, 295 Ga. 343, 348 (760 SE2d 170) (2014) (citation and punctuation omitted).

       See Styles, supra at 149; Cartero v. State, 326 Ga. App. 144, 145 (1) (756 SE2d 232) (2014); Lindsey, supra at 347 (3).

       See Crawford v. State, 294 Ga. 898, 900 (757 SE2d 102) (2014) (decided under former OCGA § 24-4-8, the precursor to OCGA § 24-14-8); White v. State, 315 Ga. App. 54, 61-62 (6) (726 SE2d 548) (2012).

       See Carter, supra; Broyard v. State, 325 Ga. App. 794 (755 SE2d 36) (2014); Calhoun v. State, 318 Ga. App. 835, 839 (2) (b) (734 SE2d 809) (2012); see generally Nelson v. State, 242 Ga. App. 63, 64 (2) (528 SE2d 844) (2000) (defendant’s armed robberies of two individual bank tellers at the same site constituted two separate crimes).

       Regarding M. R., the indictment alleged that Odie committed the offense of aggravated assault by assaulting M. R. with a deadly weapon, a handgun, and the offense of false imprisonment by confining and detaining him without legal authority.

        Colzie v. State, 289 Ga. 120, 124 (3) (710 SE2d 115) (2011) (citations and punctuation omitted); see Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

        Smith v. State, 284 Ga. 304, 310 (5) (667 SE2d 65) (2008).

        Heard v. State, 204 Ga. App. 757, 759 (2) (420 SE2d 639) (1992).

        Lewis v. State, 215 Ga. App. 161, 163 (450 SE2d 448) (1994).

       See Smith, supra.


author: ELLINGTON, Presiding Judge.

text:
    A14A2029, A15A0433.
    GASLOWITZ et al. v. STABILIS FUND I, LP (two cases).
    (770 SE2d 245)
   ELLINGTON, Presiding Judge.

In Case No. A14A2029, Adam Gaslowitz, Adam R. Gaslowitz & Associates, LLC (“G&A, LLC”), and Gaslowitz and Associates, Inc. (“G&A, Inc.”) (collectively, the “appellants”), appeal from the trial court’s grant of Stabilis Fund I, LP’s (“Stabilis”) motion for partial summary judgment on Stabilis’s post-judgment petition for, among other relief, a charging order and an accounting. The appellants claim that the trial court erred in (i) issuing a charging order against Gaslowitz’s membership interest in G&A, LLC and (ii) ordering an accounting of the assets of G&A, LLC. For the reasons that follow, we affirm the order issuing the charging order, but we reverse the order for an accounting of the assets of G&A, LLC. In Case No. A15A0433, the appellants appeal the trial court’s order requiring that they, jointly and severally, post a supersedeas bond to preserve the supersedeas effect of their main appeal. For reasons set forth below, we affirm as to Gaslowitz but reverse as to G&A, Inc. and G&A, LLC.

Case No. A14A2029

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation omitted.) Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

So viewed, the record shows that on June 21, 2011, Stabilis obtained a judgment in the Superior Court of Fulton County against Gaslowitz, and two others, in the total amount of $1,621,132.78. Stabilis filed a verified petition against the appellants seeking, among other things, a charging order against Gaslowitz’s membership interest in G&A, LLC, and “an accounting of the proceeds of G&A, LLC ... to adequately monitor Stabilis’ rights.” Stabilis then moved for partial summary judgment on its claims for a charging order and for an accounting.

The evidence adduced in that proceeding shows that Gaslowitz is the sole member of G&A, LLC. In support of its motion for summary judgment, Stabilis’s representative averred that the $1,621,132.78 judgment against Gaslowitz remained unpaid. In opposition, the appellants adduced evidence that $848,000 of the judgment debt had been collected through foreclosure on two properties, and that Stabilis had garnished certain bank accounts in furtherance of its collection efforts, although the appellants maintained that they were unaware of the amount collected thereby. Stabilis did not come forward with evidence as to the amount of the judgment that remained outstanding. The trial court found that, “[t]o the extent that the remaining amount of the judgment is unknown, that is not a bar to the charging order.” Rather, the trial court held, because Stabilis was a judgment creditor of Gaslowitz, it was “entitled to a charging order against Mr. Gaslowitz’s membership interest in G&A, LLC, and to an accounting of the assets of that same company.” On this basis, the trial court granted Stabilis’s motion for summary judgment.

1. The appellants argue that Stabilis failed to adduce evidence of the amount of the judgment debt, if any, that remains due, and that the trial court therefore erred in granting summary judgment on Stabilis’s petition for a charging order. They also assert that it cannot be determined from the order what distributions are due Stabilis, nor when such distributions can again be paid to Gaslowitz, rendering the trial court’s order impermissibly vague and indefinite. We find no merit in these claims.

The Georgia Limited Liability Company Act, OCGA §§ 14-11-100 through 14-11-1109, provides a means by which a judgment creditor of a member may cause the diversion of monetary payments the member expects to receive from the limited liability company to the member’s judgment creditor. See generally Prodigy Centers/Atlanta v. T-C Assocs., 269 Ga. 522, 526 (4) (501 SE2d 209) (1998). Specifically,

[o]n application to a court of competent jurisdiction by any judgment creditor of a member or of any assignee of a member, the court may charge the limited liability company interest of the member or such assignee with payment of the unsatisfied amount of the judgment with interest.

OCGA § 14-11-504 (a). See Word v. Stidham, 271 Ga. App. 435, 437 (609 SE2d 651) (2004) (“An interest in a limited liability company is personal property that may be charged with payment of an unsatisfied judgment against a member of the company.”). A charge against the debtor’s interest does not give a direct remedy against the assets of the limited liability company, but grants “only the rights of an assignee of the limited liability company interest” to the extent so charged. OCGA § 14-11-504 (a). See OCGA § 14-11-101 (13) (defining “Limited liability company interest” as “a member’s share of the profits and losses of a limited liability company and a member’s right to receive distributions”). Thus, the charging order remedy entitles the creditor to receive the distributions of the limited liability company, which the member “would otherwise have been entitled to receive, up to the unsatisfied amount of the judgment debt.” Nigri v. Lotz, 216 Ga. App. 204, 205 (2) (453 SE2d 780) (1995) (applying OCGA § 14-9A-52). See OCGA § 14-11-502 (2) (providing that an assignee of an interest in a limited liability company is entitled to receive distributions to which an assignor was entitled, to the extent assigned).

As the appellants contend, Stabilis failed to come forward with evidence as to the exact amount of the judgment that remains unsatisfied. But this does not mean that there remain outstanding issues of material fact which preclude summary judgment on Stabilis’s petition for a charging order. In order to secure a charging order, OCGA § 14-11-504 (a) contemplates that the applying party show that it is a judgment creditor of a member of a limited liability company. The court may then charge the member’s limited liability company interest “with payment of the unsatisfied amount of the judgment with interest.” Id. Thus, the charging order gives the judgment creditor the right to receive distributions to which the member would otherwise be entitled on account of the member’s limited liability company interest until the judgment with interest is satisfied. But the amount of distributions subject to the charging order will not necessarily correspond to the specific amount of the judgment that remains unpaid on the date that the charging order is issued. The unsatisfied amount of the judgment could be reduced or even eliminated by funds received from other sources, especially where, as here, there are co-debtors on the judgment. Thus, we conclude, OCGA § 14-11-504 (a) does not reasonably require that, as a prerequisite to the issuance of a charging order, the judgment creditor establish the specific amount of the judgment that remains unpaid on the date the charging order is issued. It follows that the trial court did not err in granting Stabilis’s motion for summary judgment.

The appellants also contend that, because the order issued by the trial court gives no direction to the parties as to the extent of funds to be distributed thereunder, the order is unenforceably vague. A charging order, however, cannot extend past the satisfaction of the underlying judgment because, by definition, the charge can only be against the “unsatisfied amount” of the judgment. OCGA § 14-11-504 (a). Accordingly, the charging order at issue here does not continue indefinitely or contemplate an unlimited charge on Gaslowitz’s membership interest, but would remain until the $1,621,132.78 judgment, with interest, is satisfied. Nothing would preclude Gaslowitz from moving to extinguish the charge on the grounds that the judgment has been satisfied, and the trial court’s order does not allow Stabilis to collect or retain payments beyond those necessary to satisfy its judgment. We find no error.

2. The appellants also argue that the trial court erred in ordering that G&A, LLC provide an accounting of its assets to Stabilis. We agree with the appellants that Stabilis established no basis on which the trial court could order the accounting.

In its brief in support of its motion below, Stabilis contended that it was seeking “an accounting of Adam Gaslowitz’s membership interest in [G&A, LLC] to determine what assets can be used to satisfy [its] outstanding judgment,” and Stabilis claimed entitlement to this accounting “as a matter of a law.” Thus, Stabilis appears to have requested an accounting on the ground that the accounting would show assets that could be applied toward payment of its judgment. See Sampson v. Haywire Ventures, 293 Ga. App. 779, 781 (4) (668 SE2d 286) (2008) (party seeking corporate accounting would be entitled to an accounting if “the facts alleged showed that on an accounting the petitioner will likely be entitled to recover judgment for some amount.”) (punctuation and footnote omitted). A charging order, however, gives no direct remedy against company property, Nigri v. Lotz, 216 Ga. App. at 205 (2), and company assets shown in an accounting would not be subject to satisfaction of Gaslowitz’s debt. “A member has no interest in specific limited liability company property.” OCGA § 14-11-501 (a). See generally Acree v. McMahan, 276 Ga. 880, 881 (585 SE2d 873) (2003) (a third-party creditor may not disregard corporate form so as to reach corporate assets to satisfy claims against an individual corporate insider); Word v. Stidham, 271 Ga. App. at 437 (“[T]he holder of an interest in [a limited liability] company has no interest in specific property owned by the company.”) (footnote omitted). Thus, Stabilis does not show a likelihood that it would recover anything on an accounting of G&A, LLC’s assets.

Stabilis also argues that, because it is granted the rights of an assignee of Gaslowitz’s limited partnership interest by reason of the charging order, see OCGA § 14-11-504 (a), “that interest necessarily includes a right to an accounting.” The Limited Liability Company Act, however, does not expressly contemplate the remedy of an accounting. See St. James Entertainment v. Crofts, 837 FSupp.2d 1283, 1293 (II) (F) (N.D. Ga. 2011) (“While the Georgia Code specifically provides a right to accounting in regards to partnerships, OCGA § 14-8-22, it has no similar section in the chapter on limited liability companies.”) (punctuation omitted). Further, a judgment creditor does not become a member of a limited liability company by reason of a charging order, but only accedes to the “rights of an assignee” of a limited liability company interest, and the rights of an assignee of such interest are expressly limited and do not include a right to an accounting of company assets. See OCGA §§ 14-11-502 (3) (“An assignment of a limited liability company interest does not of itself. . . entitle the assignee to participate in the management and affairs of the limited liability company or to become or exercise any rights of a member[.]”); 14-11-504 (a) (“To the extent so charged, the judgment creditor has only the rights of an assignee of the limited liability company interest.”).

Stabilis further contends that an accounting of company assets would merely ensure that distributions are not being made in violation of the charging order, and that because Stabilis is a judgment creditor it is entitled to such relief. Stabilis does not show how an accounting of G&A, LLC’s assets would ensure that the charging order is honored, or why, as a judgment creditor of Gaslowitz, it is entitled to such relief against G&A, LLC. Although the Limited Liability Company Act does not preclude Stabilis from seeking additional remedies in furtherance of its efforts to collect on the judgment or to enforce the charging order, the availability of other remedies is not without limit. OCGA § 14-11-504 (b) expressly states that “a judgment creditor shall have no right under this chapter or any other state law... to seek an order of the court requiring a foreclosure sale of the limited liability company interest.” Compare Stewart v. Lanier Park Med. Office Bldg., 259 Ga. App. 898, 900 (2) (578 SE2d 572) (2003) (applying OCGA § 14-9A-52). The Georgia Limited Liability Company Act also provides that, “[ujnless displaced by particular provisions of this chapter, the principles of law and equity supplement this chapter.” OCGA § 14-11-1107 (c). However, Stabilis does not present any authority, under law or equity, which would entitle it to an accounting of the assets of G&A, LLC under the circumstances shown here. Accordingly, that portion of the trial court’s order requiring an accounting of G&A, LLC’s assets must be reversed.

Case No. A15A0433

3. In this case, the appellants appeal the order of the trial court requiring that they, jointly and severally, post a bond in the amount of $962,257.60 to preserve the supersedeas effect of their main appeal. We review a trial court’s order requiring a supersedeas bond for abuse of discretion. See Cloud v. Ga. Central Credit Union, 214 Ga. App. 594, 597 (5) (448 SE2d 913) (1994); Hyman v. Leathers, 168 Ga. App. 112, 115-116 (5) (308 SE2d 388) (1983).

The appellants contend that because they did not appeal from a money judgment, and because the supersedeas bond was issued to secure a judgment against different parties in another case, the trial court erred. OCGA § 5-6-46 (a), which governs supersedeas bonds in civil cases, “describes the amount the trial court should require when the appellant is appealing a judgment for the recovery of money not otherwise secured.” (Citation and punctuation omitted.) Duke Galish, LLC v. SouthCrest Bank, 314 Ga. App. 801, 805 (3) (726 SE2d 54) (2012). But a supersedeas bond may also be required only for such an amount “as will secure the amount recovered for the use and detention of the property, the costs of the action, costs on appeal, interest, and damages for delay.” OCGA § 5-6-46 (a). Judgments of this type include “trover[ ] and actions to foreclose mortgages and other security instruments.” Id.

The trial court’s charging order concerns Gaslowitz’s property, particularly his limited liability company interest in G&A, LLC, and, under OCGA § 14-11-504 (a), Stabilis is afforded “rights of an assignee” to the extent of the charge. Accordingly, we hold that the charging order falls within the disposition-of-property provision of OCGA § 5-6-46 (a), and that Stabilis was entitled to a supersedeas bond to secure its use of that property for purposes of the charging order. See Duke Galish, LLC v. South Crest Bank, 314 Ga. App. at 805 (3) (finding that the trial court could require a security bond for an order denying the confirmation of a foreclosure sale and allowing the resale of the property because the judgment on appeal determined the disposition of property); Cloud v. Ga. Central Credit Union, 214 Ga. App. at 597 (5) (accord). Although the underlying money judgment to which the charging order relates was not entered in this case, it was appropriate for the trial court to consider that judgment in determining the amount of the bond. See Cloud v. Ga. Central Credit Union, 214 Ga. App. at597-598 (7) (concluding that the trial court did not abuse its discretion in fixing the amount of the supersedeas bond considering, among other things, the amount of the debt secured by the property); Ga. Farm Bldgs, v. Willard, 165 Ga. App. 325, 327 (2) (299 SE2d 181) (1983) (trial court did not err in requiring a supersedeas bond as the intent of the appeal was to preclude the appellees from collecting the monetary value of a previous judgment).

In view of the foregoing, we conclude that the trial court did not abuse its discretion in requiring that Gaslowitz post the supersedeas bond. We cannot reach the same conclusion, however, as to G&A, Inc. or G&A, LLC. No relief was ordered against G&A, Inc. As to G&A, LLC, the charging order does not effect a disposition of its property, and, contrary to Stabilis’s assertions, G&A, LLC was not a necessary party to the charging order proceeding. See Mahalo Investments III v. First Citizens Bank & Trust Co., 330 Ga. App. 737 (769 SE2d 154) (2015) (holding that “it is only necessary for a court to have jurisdiction over the judgment debtor to have the authority to enter charging orders against the judgment debtor’s interest”). The trial court did require an accounting of G&A, LLC’s assets, but it is apparent from the trial court’s order requiring the supersedeas bond that the amount of the bond is premised on the charging order and the underlying money judgment, pursuant to which G&A, LLC is not a judgment debtor. Accordingly, we conclude that the trial court abused its discretion in ordering that G&A, Inc. and G&A, LLC, jointly and severally with Gaslowitz, post a supersedeas bond. The order requiring a supersedeas bond is affirmed as to Gaslowitz, but reversed as to G&A, Inc. and G&A, LLC.

Decided March 12, 2015.

Gaslowitz Frankel, Craig M. Frankel, LeAnne M. Gilbert, for appellants.

Thompson, O’Brien, Kemp & Nasuti, Ted W. Right III, Kevin S. Kovalchik, for appellee.

Judgment affirmed in part and reversed in part in Case No. A14A2029. Judgment affirmed in part and reversed in part in Case No. A15A0433.

Phipps, C. J., and McMillian, J., concur.

       The judgment is against Gaslowitz and two nonparties to this action, Gerie Gilbert and 685 Penn, LLC. See 685 Penn, LLC v. Stabilis Fund I, 316 Ga. App. 210, 211-212 (1) (728 SE2d 840) (2012). Neither G&A, LLC, nor G&A, Inc., is shown to be a judgment debtor of Stabilis.

       A charging order is a statutory provision “that enables the judgment creditor [of a member of a limited liability company] to realize the value of the judgment debtor-member’s distributional interest, while at the same time protecting both the [limited liability company’s] ability to continue to operate and the interests of the other members.” 51 AmJur2d Limited Liability Companies § 23.

       The rights of a judgment creditor against the interest of a member of a limited liability company under OCGA § 14-11-504 (a) are similar to the rights of judgment creditors against the interest of a partner in a partnership or a limited partnership. See OCGA §§ 14-8-28 (a); 14-9-703 (a); 14-9A-52 (a).

       The appellants did not, however, pierce the affidavit of Stabilis’s representative that the $1,621,132.78 judgment had not been collected and remained unpaid; rather, appellants pointed to evidence showing that approximately half of the debt had been collected. Accordingly, the undisputed evidence established that Stabilis was a judgment creditor of Gaslowitz when the trial court issued the charging order.

       See, e.g., Atlanta Independent School System v. Atlanta Neighborhood Charter School, 293 Ga. 629, 631 (748 SE2d 884) (2013) (“Where the plain language of a statute is clear and susceptible of only one reasonable construction, we must construe the statute according to its terms.”).

       See generally First Bank v. S&R Grandview, 755 SE2d 393, 396 (N.C. App. 2014) (“Inherent in the concept of a charging order is that once the judgment is paid, the debtor-member’s interest in the LLC is no longer charged.”).

       We note that although Stabilis defends the relief ordered by the trial court, a review of Stabilis’s underlying petition shows that the accounting sought therein was for the “proceeds of G&A, LLC” to monitor and protect Stabilis’s rights, and not for an accounting of G&A, LLC’s assets. “Proceeds” are generally defined as “[t]he value of land, goods, or investments when converted into money,” and as any collateral that has changed in form. Black’s Law Dictionary (9th ed. 2009). Thus, a distribution on account of a limited liability company interest would be proceeds of that interest. Whether or not a court might lawfully require a limited liability company to report its distributions and other proceeds where its member’s limited liability company interest has been charged with payment of a judgment debt, that is not what the trial court ordered here.

       See OCGA § 14-11-504 (b) (the charging order remedy “shall not be deemed exclusive of others which may exist”).

       “This issue is not moot, for if certiorari were pursued on Case No. [A14A2029] but not Case No. [A15A0433], then the requirement of a supersedeas bond would still be in effect pending the final resolution of Case No. [A14A2029].” Barge v. St. Paul Fire & Marine Ins. Co., 245 Ga. App. 112, 116, n. 10 (535 SE2d 837) (2000). See Barngrover v. Hins, 289 Ga. App. 410, 414 (3) (657 SE2d 14) (2008) (accord).

       Specifically, in such case, “the amount of the bond or other form of security shall be fixed at such sum as will cover the whole amount of the judgment remaining unsatisfied, costs on the appeal, interest, and damages for delay, unless the court after notice and hearing and for good cause shown fixes a lesser amount.” OCGA § 5-6-46 (a).

       After the trial court granted Stahilis’s motion for partial summary judgment and the appellants filed their notice of appeal, initiating Case No. A14A2029, Stabilis requested that the trial court require a supersedeas bond “in an amount not less than $1,650,000 to protect the prior judgment.” In granting Stabilis’s request, the trial court noted that the charging order was “based directly on” the judgment that Stabilis had obtained against Gaslowitz and others, see n. 1, supra, and determined that the amount of the bond sufficient to protect Stabilis’s interests was $962,257.60.


text:
    A14A2069.
    DOUBLE BRANCHES ASSOCIATION, INC. et al. v. JONES et al.
    (770 SE2d 252)
   Ray, Judge.

Double Branches Association, Inc., a homeowners association of the Double Branches subdivision in Greene County, along with several of the subdivision’s residents (collectively, the “Association”), sued Double Branches Water, LLC, a private water company, and its past owners (collectively, “Double Branches Water”) for alleged breaches of a 1991 Trust Indenture Water Services Agreement (the “Agreement”) entered into between the developer of the Double Branches subdivision and Double Branches Water. The Association claimed that these breaches occurred when Double Branches Water added certain fees and raised the rates for water service to the subdivision’s homes above the maximum amount allowed by the Agreement. Double Branches Water filed a motion for summary judgment and a petition for declaratory judgment. The trial court granted Double Branches Water’s motion for summary judgment without making findings of fact or conclusions of law. Finding that the Agreement constituted a “covenant running with the land,” the trial court granted the petition for declaratory judgment on the grounds that the terms of the Agreement were no longer enforceable under OCGA § 44-5-60. For the following reasons, we affirm.

Summary judgment is warranted 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.” (Punctuation and footnote omitted.) Calhoun, GA NG, LLC v. Century Bank, 320 Ga. App. 472, 472-473 (740 SE2d 210) (2013).

The record shows that in 1991, the developers of the Double Branches subdivision entered into a Trust Indenture/Water Services Agreement with Andrew Jones d/b/a Jones Water Systems, a private water supplier. The Agreement was for the purpose of providing water to the homes built in the Double Branches subdivision. The Agreement was then recorded in the deed book in the office of the Clerk of the Superior Court of Greene County.

Pertinently, the Agreement provides that “the benefits and obligations identified [in the Agreement] become an appurtenance to and run with the land described . . . and inure to the benefit of the successors in title [.]” The Agreement notes that Double Branches Water constructed two wells and infrastructure related to providing private water service to the subdivision and that it “covenants and agrees to furnish water” to the homes “until the operation of said system is otherwise made available to the property by a municipality, or other governmental agency... or public utility.” In exchange for the “privilege and right” to use the water, lot owners “will be responsible for the installation, maintenance, and expense of their own water lines” as well as pay applicable fees. Additionally, the Agreement bound each lot owner to pay for water consumed on its premises as follows: “[Double Branches Water] shall have the right to .. . charge a minimum rate for the first 3,000 gallons used per month based on the highest rate charged for such amounts by any municipality . . . within a fifty (50) mile radius.” It further provides that Double Branches Water has the right to adjust the minimum rate from “time to time,” but that such rate should not exceed the highest amount charged by a municipality within a 50-mile radius. Finally, the Agreement provides that “this agreement shall constitute a restriction against private well systems.”

The Complaint alleges that in 2012, Double Branches Water informed lot owners that the monthly minimum rates would increase to $45, that there would be an additional monthly testing fee of $2.50, and that the rates for setup fees, late fees, and reconnection fees would be increased. The Complaint alleges that these changes violated the Agreement.

In its motion for summary judgment and petition for declaratory judgment, Double Branches Water argued, inter alia, that the Agreement constituted a restrictive covenant, and thus, it expired after 20 years because the homeowners failed to renew the covenant pursuant to former OCGA § 44-5-60 (d). The trial court granted relief in favor of Double Branches Water on the grounds that the Agreement constituted a “covenant running with the land” and became unenforceable 20 years after its enactment pursuant to OCGA § 44-5-60.

1. We first note that the Association raises several arguments for the first time on appeal: namely, that the Agreement constitutes an “easement,” and that Double Branches Water is estopped from raising its rates under the theory of promissory estoppel. We will not consider such arguments. See Kahn v. Britt, 330 Ga. App. 377, 385 (3) (d) (765 SE2d 446) (2014). To the extent that the Association presents arguments on appeal that were considered by the trial court, however, we will consider its enumerations of error.

2. The Association contends that the trial court erred in concluding that OCGA § 44-5-60 (b) applied to the Agreement as it did not constitute a restrictive covenant. We disagree.

Our application of the rules of construction to the Agreement is de novo. Crabapple Lake Parc Community Assn. v. Circeo, 325 Ga. App. 101, 104 (1) (751 SE2d 866) (2013). In construing the Agreement,

we interpret its terms using their plain, ordinary, and popular sense. Additionally, with respect to this particular [Agreement] , we must bear in mind the general rule that the owner of land has the right to use it for any lawful purpose and that Georgia law does not favor restrictions on private property.

(Citations and punctuation omitted.) Davista Holdings v. Capital Plaza, 321 Ga. App. 131, 133 (741 SE2d 266) (2013).

OCGA § 44-5-60 (a) provides, generally, that covenants running with the land go to the purchaser of the land. OCGA § 44-5-60 (b) provides, in pertinent part:

Notwithstanding subsection (a) of this Code section, covenants restricting lands to certain uses shall not run for more than 20 years in municipalities which have adopted zoning laws nor in those areas in counties for which zoning laws have been adopted. . . .

(Emphasis supplied.)

The trial court, in its order, correctly concluded that the Agreement constitutes a covenant that runs with the land as access to water affects the use of and enjoyment of each lot owner’s parcel. See Tenstate Distribution Co. v. Averett, 397 FSupp. 1227, 1231 (N.D. Ga. 1975) (applying Georgia law) (“A covenant will run with the land if it affects the value of the property or the mode of enjoyment of the property”) (citation omitted). Further, the Agreement specifically provides that “the benefits and obligations identified [in the Agreement] become an appurtenance to and run with the land described... and inure to the benefit of the successors in title.” See Lincoln Land Co. v. Palfery, 130 Ga. App. 407, 413 (3) (a) (203 SE2d 597) (1973) (that subdivision developer entered into contracts with lot owners to pay monthly fees for provision of adequate, potable water through a private water company constituted a covenant running with the land because the contract contemplated that the rights set forth in the contract shall succeed to new purchaser).

However, OCGA § 44-5-60 (b)’s 20-year automatic termination period, by its express terms, does not apply to all covenants running with the land. Instead, OCGA § 44-5-60 (b)’s application is limited only to “covenants restricting lands to certain uses[,]” i.e., a restrictive covenant. See Restatement 3d Property (Servitudes) § 1.3 (3) (2000) (“A ‘restrictive covenant’ is a negative covenant that limits permissible uses of land”); see also comment (e). Accord Davista Holdings, supra at 134. “The scope of OCGA § 44-5-60 (b) is meant to apply to both ‘use restrictions’ and, further, to ‘building restrictions’ as these appear in restrictive covenants. . . .” (Citation omitted.) Matera Investors v. Sunset Lake Fishing and Hunting Club, 696 FSupp. 1510, 1515 (III) (M.D. Ga. 1988) (applying Georgia law).

Here, although the Agreement contains no specific language stating that the lot owners must utilize their land for a particular use, it does restrict the method by which they may obtain water, which is necessary for the use and enjoyment of the property. The Agreement acknowledges that water is not available to the subdivision through a municipality, other governmental agency or public utility. It further specifically provides that “this [AJgreement shall constitute a restriction against private well systems on the .. . lots of Double Branches Subdivision.” Because the Agreement’s restriction against wells effectively prohibits the subdivision’s lot owners from obtaining water from other sources until a public utility becomes available to the property and obligates lot owners to pay the established rates, it constitutes a restrictive covenant affecting the use of the lots within the subdivision. See Murawski v. Roland Well Drilling, 188 Ga. App. 760, 763 (2) (374 SE2d 207) (1988) (finding that a contract between a subdivision developer and a private water company preventing lot owners within a subdivision from digging a well, accessing public utility water, constructing an alternate private water system, or otherwise obtaining water from a source other than the private water company constituted a restrictive covenant). Compare Argyle Realty Co. v. Cobb County School Dist., 259 Ga. 654 (386 SE2d 161) (1989) (OCGA § 44-5-60 (b)’s time limitation did not apply to deed under which grantor specified that school building erected on property must be operated under certain name; restriction applied only to uses of land and name of school was not a use); Matera Investors, supra at 1515 (III) (20-year statutory limitation in OCGA § 44-5-60 (b) does not render any of grantor hunting club’s reserved rights or interest in parcel unenforceable, where deed contained no language which stated that fee owner had to use land for any particular purpose, but rather fee owner could put land to any use whatsoever so long as it did not violate club’s rights under the deed).

Decided March 12, 2015.

M. Joseph Reitman, Jr., for appellants.

David G. Kopp, for appellees.

The Association cited Davista Holdings, supra, for the proposition that to the extent the Agreement’s prohibition against private wells could be construed to be a restrictive covenant, it should be considered separately from the rest of the Agreement. We find this unavailing. In Davista Holdings, the easement agreement set forth easements for pedestrian and vehicular access and a restrictive covenant limiting the landowner from using a portion of its property for anything other than a driveway, thoroughfare, or parking lot. Id. at 132-133. However, unlike the easement agreement in Davista Holdings, the Agreement in the present case does not “consist[ ] of two distinct parts,” id. at 134, but instead all of the provisions relate to the method by which lot owners in the Double Branches subdivision can obtain water.

Based upon the above, we find that the Agreement constituted a restrictive covenant limiting each lot owner’s options for obtaining water necessary for the use and enjoyment of his or her property. Accordingly, we find that the terms of the Agreement ceased to be enforceable in 2011 pursuant to OCGA § 44-5-60 (b) when the homeowners failed to renew the covenant as required by OCGA § 44-5-60 (d). Accordingly, we affirm the trial court’s judgment.

Judgment affirmed.

Andrews, P. J., and McFadden, J., concur.

       Jones d/b/a Jones Water Systems subsequently assigned his interest in Double Branches Water to Double Branches Water, LLC. For the purposes of this opinion, we shall refer to both organizations as “Double Branches Water.”

       OCGA § 44-5-60 was amended in 1993 to revise subsection (d), to provide for an automatic 20-year renewal of a covenant (in subdivisions containing 15 or more individual plots) unless 51 percent of the record owners of plots affected by the covenant execute a document in proper form stating their wish that the covenant be terminated. This automatic renewal provision of the current version of “OCGA § 44-5-60 (d) cannot, however, be applied retroactively to covenants recorded before 1993, such as the ones here.” (Footnote omitted.) Britt v. Albright, 282 Ga. App. 206, 208 (1) (638 SE2d 372) (2006). Accord Bickford v. Yancey Dev. Co., 276 Ga. 814, 814-816 (l)-(2) (585 SE2d 78) (2003). The version of OCGA § 44-5-60 (d) in effect at the time the covenants at issue were recorded contains no such automatic renewal provision, and instead required lot owners to take certain affirmative steps to renew the restrictive covenant. See Ga. L. 1991, p. 334, § 1.


author: DOYLE, Presiding Judge.

text:
    A14A1992.
    PEREZ v. THE STATE.
    (770 SE2d 260)
   DOYLE, Presiding Judge.

Victor Perez appeals the denial of his motion for new trial following his conviction of burglary and misdemeanor obstruction of an officer. He contends that (1) evidence of a prior bad act was improperly admitted, (2) the trial court improperly excluded certain photographic evidence offered in his defense, and (3) he received ineffective assistance of counsel. For the reasons that follow, we affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict[,] and an appellant no longer enjoys the presumption of innocence.”

So viewed, the record shows that Perez lived in a mobile home park next door to the Mendoza family. One morning, the children went to school and the parents left for work, leaving eleven-year-old Dana with her four-year-old brother alone in the home. Dana had stayed home sick that day with the understanding that an older relative would come look after her and her brother. Soon after her parents left, Dana heard Perez walking on the front porch and observed him looking into the home’s windows. Alarmed, she used a phone left with her by her father, Manuel, to call her mother, who instructed her to take pictures of the man and then lock her brother and herself in the bathroom. Dana complied, and while the mother called the police and raced home, Perez broke a window, entered the home, and walked through each room. Perez broke the locked bedroom door and then the locked bathroom door where Dana was hiding with her brother. As Perez attempted to grab Dana, they both heard a car horn honking and tires screeching into the parking area as Dana’s mother arrived. Perez fled out the front door, where Dana’s mother saw him jump off the porch as she climbed the stairs to find Dana. She found Dana and her brother unhurt but terrified and observed the broken window and interior doors, blood throughout the home, and nothing missing.

A police officer arrived to find Dana’s father, who had just arrived, tussling with Perez outside his home, and, after a struggle between the officer and Perez, the officer was able to handcuff him on the ground. A second officer soon arrived and helped secure the scene. When asked by police, Dana identified Perez as the man she saw in the home.

Perez was charged with burglary for entering the home with the intent to commit cruelty to children and with felony obstruction for struggling with the arresting officer. A jury trial was held, and Perez was found guilty of burglary and, as to obstruction, the lesser included misdemeanor offense. He moved for a new trial, which motion was denied, giving rise to this appeal.

1. Perez contends that the trial court erroneously admitted evidence that he had, in the weeks leading up to the burglary, followed Dana’s 15-year-old sister as she walked home from the school bus. The girl described it as a scary event based on the way Perez looked at her and spoke to her and because he was much older. The State argues that the evidence was relevant to show Perez’s motive for breaking into the house, and Perez now argues that the prior difficulty was inadmissible under the applicable rule of evidence, OCGA § 24-4-404 (b), because it attacked his character as being a pedophile. OCGA § 24-4-404 (b), which was effective at the time of the July 2013 trial in this case, provides as follows:

Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The prosecution in a criminal proceeding shall provide reasonable notice to the defense in advance of trial, unless pretrial notice is excused by the court upon good cause shown, of the general nature of any such evidence it intends to introduce at trial. Notice shall not be required when the evidence of prior crimes, wrongs, or acts is offered to prove the circumstances immediately surrounding the charged crime, motive, or prior difficulties between the accused and the alleged victim.

Pretermitting whether admitting the evidence was error, we note that Perez did not voice any objection at trial to the description of him following the older sister. In light of this waiver, his enumeration is limited to review for plain error, as authorized by Georgia’s Evidence Code.

A plain error is one that is so clearly erroneous that it creates a likelihood of a grave miscarriage of justice or seriously affects the fairness, integrity, or public reputation of the judicial proceeding. To demonstrate plain error, an appellant must show that the error caused him harm, i.e., that the error likely affected the outcome at trial.

At trial, Perez’s defense was to deny that he was the perpetrator of the burglary and clarify that he remained outside of the Mendoza home looking for Manuel, with whom he had an ongoing dispute over a physical altercation. But there was evidence from Ms. Mendoza, Perez’s neighbor, that she personally saw him fleeing her home when she drove up in response to Dana’s fearful telephone call. Further, her husband identified Perez as the man in the photographs taken by Dana as he prowled around their house before breaking in. And Dana identified Perez to police and at trial as the man who broke into the home and attempted to grab her. Finally, there was blood strewn throughout the home, and Perez was observed by several witnesses to be bleeding from cuts on his arm consistent with those made by glass. In light of this ample and unrefuted evidence, Perez fails to show that the outcome of the trial was likely affected by any improper light shed on him by the description of him inappropriately heckling the older sister.

2. Perez next argues that the trial court erroneously excluded a photograph of a scar on his shoulder that he took after the close of the State’s evidence. He explained that he did not want to testify, but his mother, who did testify, could authenticate the photograph and explain that he resisted arrest because he was in pain from his recent shoulder surgery. The trial court excluded the photograph on the ground that admitting it would be tantamount to allowing Perez to testify without being cross-examined. Pretermitting the correctness of this ruling, Perez did call his mother to testify, and she explained that Perez had undergone shoulder surgery just prior to the arrest. Therefore, the excluded photograph was cumulative of this testimony, and its exclusion does not warrant reversal.

3. Perez also contends that he received ineffective assistance of counsel at trial. Under Strickland v. Washington, to succeed on an ineffective assistance claim, a criminal defendant must demonstrate both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. “There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case.” If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court need not examine the other prong. In reviewing the trial court’s decision, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”

(a) Perez first argues that his trial counsel failed to effectively communicate with his client due to a language barrier. But at the motion for new trial hearing, both Perez and his trial counsel testified otherwise. When asked, “Are you sure you understood everything [trial counsel] was saying to you,” Perez responded in the affirmative, also explaining, “I can speak a little bit of English.” Perez’s trial counsel likewise explained that throughout the trial and in all but one or two of his private meetings with Perez, he had a court-appointed interpreter with him, and Perez never gave him any indication that he did not understand their conversations. Based on this record, we discern no deficient performance with respect to trial counsel’s communications with Perez.

(b) Perez next argues that his trial counsel exerted undue influence over his choice not to testify at trial.

A criminal defendant has a constitutional right to testify in his or her defense, that right is personal to the defendant, and the decision whether to testify is made by the defendant after consultation with counsel. Defense counsel bears the primary responsibility for advising the defendant of his right to testify or not to testify, the strategic implications of each choice, and that it is ultimately for the defendant himself to decide. This advice is crucial because there can be no effective waiver of a fundamental constitutional right unless there is an intentional relinquishment or abandonment of a known right or privilege.

Trial counsel did not have a specific recollection of his advice to Perez, but counsel explained-that his standard practice was “to tell any client. . . that it’s their decision whether to take the stand and testify or not. I tell them of the advantages of taking the stand and the disadvantages of taking the stand, and beyond that, I’ll let them make the decision.” At the hearing, Perez stated that his counsel had told him that it would be “dangerous” and “counter productive” to testify despite his wish to do so. Finally, the trial transcript contains a colloquy between Perez and the trial court, during which the court advised Perez that the decision to testify was his and his alone, that no one could stop him from testifying or force him to testify, that if he decided not to testify the court would instruct the jury not to hold it against him, and if he did testify he would be examined by both the State’s counsel and his own. After the colloquy, Perez personally declined to testify.

“Assuming a discrepancy in the testimony between [Perez] and his counsel, it is the function of the trial court at the hearing on the motion for new trial to determine witness credibility and to resolve any conflicts in the testimony.” The record before us supports the trial court’s rejection of Perez’s ineffective assistance claim on this ground.

Decided March 13, 2015

Leon & Kim, Homero Leon, Jr., John S. LaRose, for appellant.

K. David Cooke, Jr., District Attorney, Myra H. Tisdale, Neil A. Halvorson, Assistant District Attorneys, for appellee.

(c) Perez also bases his claim on his trial counsel’s failure to object to the evidence of him following the 15-year-old sister, but for the reasons stated in Division 1, he cannot meet his burden to show harm under Strickland.

(d) Perez contends that his trial counsel failed to adequately investigate the case and call the appropriate witnesses to show that Perez previously had been attacked at the behest of Manuel prior to the scuffle after the burglary. This, Perez argues, would have allowed him to argue that he was looking for Manuel to confront him about the prior incident, not burglarize their home. Despite Perez’s argument on appeal, this alternative defense theory could also be used by the jury as demonstrating a motive to burglarize the Mendoza home. Further, trial counsel explained that he did investigate the crime, including visiting the scene and speaking to the witnesses in question. After interviewing them, he decided based on trial strategy that they would be more damaging than helpful.

Deciding which witnesses to call is a matter of trial strategy and tactics, and because appellant failed to show that the strategic decisions made by his counsel with respect to witnesses were so patently unrea sonable that no competent attorney would have chosen them, the trial court did not err in finding trial counsel’s performance in this regard was not constitutionally deficient.

(e) Finally, “[because Perez] has failed to demonstrate any prejudice resulting from counsel’s alleged errors, his reliance on Schofield v. Holsey for the proposition that [the cumulative effect of the alleged errors warrants reversal] is meritless.”

Judgment affirmed.

Miller and Dillard, JJ., concur.

       OCGA § 16-7-1 (b).

       OCGA § 16-10-24 (a).

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

       See OCGA § 16-5-70 (b) (“Any person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.”).

       We note that whether or not Perez had a sexual motive, the evidence that he pursued Dana through two locked doors and was grabbing her when he was interrupted by the arrival of Dana’s mother sufficed to show an intent to commit cruelty to children by causing Dana cruel or excessive physical or mental pain. See Ferrell v. State, 283 Ga. App. 471, 474-475 (2) (641 SE2d 658) (2007) (“For purposes of [cruelty to children], malice in the legal sense imports the absence of all elements of justification or excuse and the presence of an actual intent to cause the particular harm produced, or the wanton and wilful doing of an act with an awareness of a plain and strong likelihood that such harm may result. Whether a defendant intended his actions is a question of fact to be determined by the jury upon consideration of words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. We will affirm the jury’s finding of intent unless clearly erroneous.”) (punctuation and footnotes omitted).

       See Ga. L. 2011, p. 99, § 101 (providing that Georgia’s new Evidence Code applies “to any motion made or hearing or trial commenced on or after” January 1, 2013).

       See OCGA § 24-1-103 (a) (1) (“[ejrror shall not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected and ... a timely objection... appears of record, stating the specific ground of objection”) (emphasis supplied); (d) (“Nothing in this Code section shall preclude a court from taking notice of plain errors affecting substantial rights although such errors were not brought to the attention of the [trial] court.”); U. S. v. Dolomon, 569 Fed. Appx. 889, 893 (IV) (11th Cir. Fla. 2014) (reviewing admissibility of character evidence for plain error absent timely objection at trial). See generally Rembert v. State, 324 Ga. App. 146, 152 (2), n. 8 (749 SE2d 744) (2013) (noting availability of plain error review after the adoption of Georgia’s new Evidence Code).

       (Citation and punctuation omitted.) Crapps v. State, 329 Ga. App. 820, 825 (2) (766 SE2d 178) (2014).

       Perez’s mother, with whom he lived, testified at trial. She could not provide an alibi for Perez, only noting that he was “in and out” of their mobile home that morning.

       There was no evidence that Perez believed the older sister to be home at the time of the burglary.

       See Cannon v. State, 288 Ga. 225, 226 (2) (702 SE2d 845) (2010) (“Evidence wrongfully [excluded] is harmless where admissible evidence of the same fact is introduced.”) (punctuation omitted).

       466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

       See id. at 687-688, 694 (III) (A)-(B).

       (Citation and punctuation omitted.) Williams v. State, 277 Ga. 853, 857 (6) (596 SE2d 597) (2004).

       See Strickland, 466 U. S. at 697 (IV); Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004).

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

       (Citations and punctuation omitted.) Thornton v. State, 292 Ga. 796, 798 (2) (a) (741 SE2d 641) (2013).

        Mobley v. State, 264 Ga. 854, 856 (2) (452 SE2d 500) (1995).

       See Thornton, 292 Ga. at 798 (2) (a), n. 2 (noting the appellant’s affirmative response to the trial court’s inquiries about his understanding of his right to testify).

        Miller v. State, 295 Ga. 769, 772 (2) (a) (i) (764 SE2d 135) (2014).

       281 Ga. 809 (642 SE2d 56) (2007).

       (Punctuation omitted.) Mora v. State, 295 Ga. App. 641, 649 (3) (g) (673 SE2d 23) (2009).


text:
    A14A1942.
    DAVIS v. THE STATE.
    (769 SE2d 183)
   DOYLE, Presiding Judge.

Preston Davis was charged with possession of marijuana with the intent to distribute, obstruction of a police officer, driving without proof of insurance, and improper use of the center lane. He appeals the denial of his motion to suppress, arguing that the impoundment of his vehicle and subsequent inventory search were unlawful. For the reasons that follow, we affirm.

When reviewing a trial court’s ruling on a motion to suppress,

this Court must be guided by three fundamental precepts: first, when a motion to suppress is heard by the trial judge sitting as the trier of fact, the judge hears the evidence and the judge’s findings on conflicting evidence are analogous to a jury verdict, and consequently, should not be disturbed by the appellate court if there is any evidence to support them; second, the trial court’s decisions on questions of fact and credibility are to be accepted unless they are clearly erroneous; and third, the appellate court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. Such precepts are equally applicable whether the trial court rules in favor of the State or the defendant.

So viewed, the record shows that on September 18, 2013, at approximately 10:00 p.m., an Athens-Clarke County police officer observed a 2002 Audi, which Davis was driving, turn out of an apartment complex and travel more than 300 feet in the center turn lane. While following Davis, the officer ran the Audi’s license plate through the computer and determined that the car was not insured. After confirming with dispatch that the vehicle did not have valid insurance, the officer activated his blue lights, and Davis pulled over to the side of the road near an overpass.

When the officer informed Davis that his computer reflected that Davis’s vehicle was not covered by insurance, Davis produced a binder from his insurance agent showing that insurance on the vehicle took effect on August 14, 2013. According to the officer, the paperwork showed that the policy provided coverage for 30 days, and the 30 days had already expired. Davis then produced an insurance card with a policy for a separate vehicle and advised that it reflected “the policy number under which the Audi should be covered.” In an effort to verify coverage, the officer called an after-hours number for the insurance company and was told by the operator that the policy for that particular vehicle could not be located.

The officer then called for a wrecker to tow the vehicle and began an inventory search at the front of Davis’s car. When the officer leaned down to activate the trunk latch, Davis fled on foot. After pursuing him, the officer returned to the vehicle and discovered in the trunk “in plain view” a plastic grocery bag containing marijuana, $2,275 in small denomination bills, bags, and rolling paper.

Following his arrest, Davis moved to suppress the evidence, arguing that the traffic stop, impoundment, and inventory search of his car were unlawful. At the suppression hearing, Davis’s insurance agent testified that Davis had valid insurance at the time of the stop and that the after-hours operator, who was not local, would not necessarily have access to this information. The agent conceded, however, that

for whatever reason,... the database that shows in the tag office that someone has insurance and [State Farm] [inputting in that policy did not sync up. So after that 30-day binder expired, it appeared as though there was no insurance in the database even though there was.

The State Farm agent also testified that the insurance binder Davis showed the officer “would not indicate valid insurance after the 30 days.”

Davis elicited testimony from the officer that his sole training with respect to conducting an inventory search was to fill out a form listing items to be noted. The officer also testified, however, that police department policy required that before having vehicles towed, officers conduct an inventory search to look for “the spare tire, the jack, stereo and audio player, any special equipment, [and] the glove compartment, and any damaged parts need to be noted, and anything other — special or anything remarks that need to be made.”

The trial court denied the motion to suppress, finding that “[t]he police officer had a reasonable and articulable suspicion to stop the vehicle and was authorized to conduct an inventory search of the vehicle.” Davis obtained a certificate of immediate review, and this Court granted his application for an interlocutory appeal. On appeal, Davis argues that the impoundment of his vehicle and subsequent inventory search were unlawful. We disagree.

Davis does not challenge the officer’s decision to initiate a traffic stop. Instead, he argues that there was no lawful reason for the impoundment because although the database the officer checked indicated that Davis’s vehicle was not insured, the printed materials Davis provided demonstrated proof of coverage. This argument overlooks his insurance agent’s testimony that the binder had expired and would not show valid proof of coverage 30 days after issuance. Under these circumstances, the officer’s decision to prohibit Davis from driving his car was not improper. The next question, therefore, is whether the impoundment of the vehicle was proper.

It is well settled that “[c]ases supporting the State’s right to impound a vehicle . . . are founded on a doctrine of necessity.”

Under that doctrine, while the police may not impound a car to search for contraband, they may impound a vehicle if they must take charge of it for some reason. And ultimately, the test for the validity of the police’s conduct is whether, under the circumstances then confronting the police, their conduct was reasonable within the meaning of the Fourth Amendment. More specifically, the test is whether the impoundment was reasonably necessary under the circumstances, not whether it was absolutely necessary. Furthermore, subsequent to a reasonable impoundment, the contents of an impounded vehicle are routinely inventoried to protect the property of the owner, protect the officers against claims for lost or stolen property, and protect the police from potential danger. Finally, inventories conducted by the police pursuant to standard police procedures are deemed to be reasonable under the Fourth Amendment.

Here, Davis’s car was parked on the side of a major road late at night, and because there was no proof that the vehicle was insured, towing it was the only viable option for removing it from the roadway. And there is no evidence that Davis expressed a preference for a towing company. Under these circumstances, the trial court did not err by finding that impoundment was reasonably necessary.

Davis also argues that the inventory search was invalid because there was no evidence that it was conducted pursuant to an established police department policy. He relies upon Capellán v. State, in which this Court held that a police inventory search was unreasonable because, given the lack of evidence of police department policy on inventory searches or a reasonable inventory procedure, “it is difficult, if not impossible, to conclude that the inventory was conducted pursuant to such policy and not simply a ‘rummaging’ to discover incriminating evidence.”

Decided February 27, 2015

Reconsideration denied March 16, 2015

Benjamin A. Pearlman, for appellant.

Kenneth W. Mauldin, District Attorney, Emily K. Norris, Brian V. Patterson, Assistant District Attorneys, for appellee.

Here, there was evidence that Athens-Clarke County Police Department policy required an inventory search of all vehicles prior to towing in order to provide a list of valuables, damage to the vehicle, or other notable issues or items, and that the officer was trained in how to complete the inventory form. Thus, the trial court did not err by concluding that the officer’s decision to search Davis’s car was proper.

Judgment affirmed.

Miller and Dillard, JJ., concur.

       OCGA § 16-13-30 (j) (1).

       OCGA§ 16-10-24 (a).

       OCGA § 40-6-10 (a) (1.2).

       OCGA § 40-6-126.

       (Citations omitted.) State v. Colvard, 296 Ga. 381, 382 (1) (768 SE2d 473) (2015).

       The insurance paperwork was left in Davis’s vehicle, and it was not introduced at the suppression hearing.

       The representative was able to locate Davis’s name associated with another vehicle for which Davis did have insurance.

       The officer testified the he smelled the odor of marijuana immediately after opening the trunk.

       See Grizzle v. State, 310 Ga. App. 577, 579-580 (1), n. 18 (713 SE2d 701) (2011) (absent proof that motorcycle was insured, it “could not be lawfully driven by anyone”); Dover v. State, 307 Ga. App. 126, 128 (1) (a) (704 SE2d 235) (2010) (“the vehicle was not insured, so it could not be driven”). We note that the State does not argue that police searched the car incident to Davis’s arrest, and there was no evidence that Officer Choudhery placed Davis under arrest before he fled the scene. See OCGA § 40-6-10 (a) (6) (“If a law enforcement officer of this [S]tate determines that the owner or operator of a motor vehicle subject to the provisions of this Code section does not have proof or evidence of required minimum insurance coverage, the arresting officer shall issue a uniform traffic citation for operating a motor vehicle without proof of insurance. If the court or arresting officer determines that the operator is not the owner, then a uniform traffic citation may be issued to the owner for authorizing the operation of a motor vehicle without proof of insurance.”) (emphasis supplied). But see OCGA § 17-4-23 (a) (arrest by issuance of citation).

       We note that impoundment was not proper under OCGA § 40-6-206 (d), which provides that “[bjecause uninsured vehicles pose a threat to the public safety and health,” law enforcement officers may impound a vehicle when a person is charged with OCGA § 40-6-10 (a) or (b) “if such person admits to the law enforcement officer that there is no insurance in effect on the vehicle or if the law enforcement officer verifies that the proof of insurance provided by such person is fraudulent.” “Neither of these conditions was present, so [the officer] lacked authority to impound the vehicle under OCGA § 40-6-206 (d).” State v. Lamb, 202 Ga. App. 69, 71 (1) (413 SE2d 511) (1991) (physical precedent only).

       (Punctuation omitted.) Dover, 307 Ga. App. at 128 (1) (a) (discussing necessity of impoundment in light of driver’s arrest).

       (Punctuation and footnotes omitted.) Grizzle, 310 Ga. App. at 579 (1).

       See Beville v. State, 322 Ga. App. 673, 677 (3) (b) (745 SE2d 858) (2013); Staley v. State, 224 Ga. App. 806, 807 (1) (482 SE2d 459) (1997) (“Given the lack of proof that the truck was insured, [the defendant’s] inability to drive the truck due to his suspended license, the fact that the truck was sitting in the lane of travel on the roadway, and [the defendant’s] failure to make any request regarding a wrecker service, it was not unreasonable under the Fourth Amendment and the circumstances facing [the officer] at the time for him to call a wrecker and have the truck impounded.”). But see State v. Darabaris, 159 Ga. App. 121, 123 (282 SE2d 744) (1981) (impoundment not reasonably necessary because the police did not ask the owner, who although under arrest, was present, if he had a preference regarding which towing service to use). Here, Davis does not argue that the officer had an obligation to permit Davis to select his own towing service, nor does he otherwise challenge the officer’s summoning of a tow truck once he made the decision to have the car towed; instead, Davis limits his argument to the allegedly conflicting evidence regarding whether there was proof that the vehicle was insured.

       316 Ga. App. 467 (729 SE2d 602) (2012).

       Id. at 470.

       See Askew v. State, 326 Ga. App. 859, 863 (755 SE2d 283) (2014); Grizzle, 310 Ga. App. at 580-581 (2); Staley, 224 Ga. App. at 808 (1). Compare Capellan, 316 Ga. App. at 470. And having concluded that the inventory search of the trunk was proper, we reject Davis’s argument that the trial court erred by denying the motion to suppress the items found in the plastic grocery bag because there was no evidence of a specific policy regarding opening closed containers during an inventory search. Based upon the officer’s testimony that he smelled marijuana as soon as the trunk was opened, the police were authorized to open the bag. See Jones v. State, 319 Ga. App. 678, 678-679 (1) (738 SE2d 130) (2013).