author: BARNES, Presiding Judge.

text:
    A17A0530.
    In the Interest of T. F. N., a child.
    (799 SE2d 591)
   BARNES, Presiding Judge.

After his delinquency prosecution had concluded, T. F. N. filed a motion with the juvenile court seeking the return of three cell phones that had been seized from him by the City of Clarkston Police Department. Following a hearing, the juvenile court denied the motion, concluding, among other things, that T. F. N. had failed to comply with certain statutory requirements for seeking the return of personal property from a law enforcement agency, including those set forth in OCGA § 17-5-54 (c) (3). For the reasons discussed below, we conclude that the trial court committed no error and therefore affirm.

The record reflects that on January 13, 2016, 16-year-old T. F. N. was arrested and detained at the DeKalb County Regional Youth Detention Center on several delinquency charges, and a police officer with the City of Clarkston Police Department filed a complaint against T. F. N. in the juvenile court the next day The State subsequently filed a delinquency petition, alleging that T. F. N. had committed multiple delinquent acts, including theft by taking a motor vehicle and theft by receiving stolen property based on T. F N. having received and retained stolen boots.

In connection with T. F. N.’s delinquency prosecution, the police department applied for and obtained a search warrant to seize the boots and three cell phones that T. F N. had on his person when he was booked at the detention center. Following execution of the warrant, the alleged victim of the theft by receiving stolen property count of the delinquency petition visually inspected the boots at the police department and identified them as her own. The police department released the boots to the victim, and T. F. N. did not challenge that decision.

T. F. N. thereafter entered an admission of delinquency to the charge of theft by taking a motor vehicle, and the juvenile court adjudicated him delinquent of that offense. The State dismissed the other charges in the delinquency petition, including the theft by receiving charge based on the boots. The juvenile court entered an order of disposition on March 2, 2016, placing T. F. N. in restrictive custody for ten months for his delinquent act of theft by taking a motor vehicle, with credit for time served since his detention in January 2016.

On June 8, 2016, T. F N., who remained in restrictive custody, filed a motion with the juvenile court seeking the return of the three seized cell phones that remained in the custody of the police department. T. F. N. requested that the cell phones be released to the Department of Family and Children Services so that the phones could be returned to him after he completed his sentence.

The juvenile court conducted a hearing on T. F. N.’s motion for return of the cell phones. At the hearing, the State argued that T. F. N.’s motion should be denied because T. F N. had failed to comply with the requirements found in OCGA § 17-5-54 (c) (3) (2016), which provides in part that “[a]ny person claiming to be a rightful owner of property shall make an application to the entity holding his or her property and shall furnish satisfactory proof of ownership of such property and present personal identification.” T. F. N.’s counsel conceded that T. F. N. had not complied with OCGA § 17-5-54 (c) (3), but argued that the juvenile court could order the return of the phones to him under OCGA § 17-5-54 (c) (2) now that his delinquency prosecution had concluded.

The sole witness at the hearing was a police detective, who testified about the police department’s decision to retain possession of the cell phones after T. F. N.’s delinquency prosecution had concluded. According to the detective, the police department was conducting several ongoing criminal investigations in which T. F. N. was a suspect and in which the department anticipated that charges would be filed against him. The detective testified that the police department was retaining the cell phones because of those ongoing investigations.

Following the hearing, the juvenile court entered an order denying T. F. N.’s motion for return of the cell phones on two alternative grounds. First, the juvenile court concluded that T. F. N. had failed to follow the requirements found in OCGA § 17-5-54 (c) (3) for seeking return of the cell phones from the police department, and thus could not show that the department had improperly refused to release the phones to him. Second, the juvenile court concluded that, based on the testimony of the police detective at the hearing, the cell phones could be retained by the department due to the ongoing criminal investigations linked to T. F N. T. F N. now appeals the juvenile court’s order.

1. T. F. N. contends that the juvenile court erred in concluding that he was required to follow the requirements set out in OCGA § 17-5-54 (c) (3) for seeking the return of seized personal property from a law enforcement agency and in denying his motion for return of the cell phones for failing to follow those requirements. According to T. F N., OCGA § 17-5-54 (c) (2) required the juvenile court to return the cell phones to him upon the conclusion of his delinquency prosecution, and the procedures found in OCGA § 17-5-54 (c) (3) only apply to third party civilians such as witnesses and victims who are seeking the return of their personal property. Alternatively, T. F N. argues that even if OCGA § 17-5-54 (c) (3) applies to him, he complied with its requirements. We are unpersuaded.

Chapter 5 of Title 17 of the Georgia Code addresses searches and seizures by the government, and Article 3 of that chapter addresses the disposition of various categories of property after they have been seized. See OCGA §§ 17-5-50 - 17-5-56. Among the provisions found in Article 3, OCGA § 17-5-54 addresses the disposition of personal property in the custody of a “law enforcement agency” to its “rightful owner.” Subsection (c) of that statute provides in part:

(1) Except as provided in Chapter 16 of Title 9 [addressing civil forfeiture proceedings], Code Sections 17-5-55 [addressing the disposition of evidence designated as dangerous or contraband by state or federal law] and 17-5-56 [addressing the maintenance of evidence containing biological material], and subsection (b) of this Code section, [] when a law enforcement agency assumes custody of any personal property which is the subject of a crime or has been abandoned, a disposition of such property shall be made in accordance with the provisions of this Code section.
(2) When a final verdict and judgment is entered finding a defendant guilty of the commission of a crime, any personal property used as evidence in the trial shall be returned to the rightful owner of the property within 30 days following the final judgment; provided, however, that if the judgment is appealed or if the defendant files a motion for a new trial and if photographs, videotapes, or other identification or analysis of the personal property will not be sufficient evidence for the appeal of the case or new trial of the case, such personal property shall be returned to the rightful owner within 30 days of the conclusion of the appeal or new trial, whichever occurs last.
(3) Any person claiming to be a rightful owner of property shall make an application to the entity holding his or her property and shall furnish satisfactory proof of ownership of such property and present personal identification . The person in charge of such property may return such property to the applicant. The person to whom property is delivered shall sign, under penalty of false swearing, a declaration of ownership, which shall be retained by the person in charge of the property Such declaration, absent any other proof of ownership, shall be deemed satisfactory proof of ownership for the purposes of this Code section; provided, however, that with respect to motor vehicles, paragraph (3) of subsection (b) and subsection (f) of this Code section shall govern the return of motor vehicles.

(Emphasis supplied.) OCGA § 17-5-54 (c) (l)-(3).

Relying upon language in the prior version of OCGA § 17-5-54 substantially similar to the language in current subsections (c) (1) and (c) (2), we recently held in Norman v. Yeager, 335 Ga. App. 470, 472 (781 SE2d 580) (2016): “Following the conclusion of a criminal prosecution, personal property seized for use as evidence at trial must be returned to its rightful owner, unless the property constitutes contraband or is subject to forfeiture.” See also Baez v. State, 231 Ga. App. 375, 376 (500 SE2d 339) (1998); Chappell v. Stapleton, 58 Ga. App. 138 (198 SE 109) (1938); Padgett v. Sturgis, 6 Ga. App. 544 (65 SE 352) (1909). In Norman, we applied this rule in the circumstance where personal property had been seized for use as evidence in a criminal prosecution and the prosecution had concluded with the criminal defendant pleading guilty to one of the charges. Id. at 471-472.

Notably, however, the requirements included by the General Assembly in current OCGA § 17-5-54 (c) (3) were not present in the prior version of the statute addressed in Norman. “All statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it.” (Citation and punctuation omitted.) Botts v. Southeastern Pipe-Line Co., 190 Ga. 689, 700-701 (10 SE2d 375) (1940). Thus, “when a statute is amended, from the addition of words it may be presumed that the legislature intended some change in the existing law.” (Citation and punctuation omitted.) Bd. of Assessors of Jefferson County v. McCoy Grain Exchange, 234 Ga. App. 98, 100 (505 SE2d 832) (1998). Otherwise, the inclusion of the new language would be treated as mere surplusage, a construction of the statute that clearly should be avoided. Inland Paperboard & Packaging v. Ga. Dept. of Revenue, 274 Ga. App. 101, 104 (616 SE2d 873) (2005). Given these interpretive principles, we must construe the newly added language of subsection (c) (3) with the other subsections of OCGA § 17-5-54 (c) in a manner that harmonizes the various provisions and does not render any of the provisions meaningless or unnecessary. See City of Buchanan v. Pope, 222 Ga. App. 716, 717 (1) (476 SE2d 53) (1996) (“[I]t is a basic rule of construction that a statute . . . should be construed to make all its parts harmonize and to give a sensible and intelligent effect to each part, as it is not presumed that the legislature intended that any part would be without meaning.”) (citation and punctuation omitted).

Construed in such a manner, under the current version of OCGA § 17-5-54, after the conclusion of a criminal prosecution, any person claiming to be the rightful owner of personal property seized for use as evidence in that prosecution must comply with the requirements set forth in subsection (c) (3). Accordingly, any party claiming to be the rightful owner of the property must make an application to the law enforcement entity holding the property, furnish satisfactory proof of ownership, and present evidence of his or her identity in compliance with subsection (c) (3) before the party can claim that the entity has improperly refused to return the property to him or her in violation of OCGA § 17-5-54 (c) (2).

T. F. N. argues, however, that OCGA § 17-5-54 (c) (3) applies only to third party civilians (such as witnesses and victims) seeking to have their personal property returned to them, not to defendants whose property was seized by the police in connection with his or her criminal prosecution. But in determining whether the requirements found in OCGA § 17-5-54 (c) (3) apply to defendants seeking the return of their alleged personal property, “we must presume that the General Assembly meant what it said and said what it meant. To that end, we afford the statutory text its plain and ordinary meaning[.]” (Citations and punctuation omitted.) Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013). And, here, OCGA § 17-5-54 (c) (3) broadly and unequivocally states that it applies to “any person” who claims to be the rightful owner of the personal property at issue and does not carve out an exception for criminal defendants. T. F. N.’s argument for limiting the scope of subsection (c) (3) therefore is unpersuasive, as this Court cannot amend a statute “by interpreting its language so as to change the otherwise plain and unambiguous provisions.” (Citations and punctuation omitted.) In re Whittle, 339 Ga. App. 83, 89 (1) (793 SE2d 123) (2016).

Alternatively, T. F. N. argues that even if OCGA § 17-5-54 (c) (3) applies to defendants like himself, he complied with its requirements. According to T. F. N., he satisfied the requirements of subsection (c) (3) by filing a motion in juvenile court seeking the return of the cell phones from the police department and pointing to the undisputed evidence that the phones were taken from his person when he was booked at the detention center. T. F. N.’s argument is misplaced. As an initial matter, T. F. N. never argued in the juvenile court that he had complied with OCGA § 17-5-54 (c) (3); in fact, as previously noted, his trial counsel conceded the opposite at the hearing on his motion for return of the cell phones. Consequently, T. F. N. has waived any argument on appeal that he satisfied the requirements of OCGA § 17-5-54 (c) (3). See In the Interest of J. T., 297 Ga. App. 636, 639 (2) (678 SE2d 111) (2009).

In any event, OCGA § 17-5-54 (c) (3) requires that a party claiming to be the rightful owner “shall make” the application for return of the seized personal property “to the entity holding his or her property,” after which “[t]he person in charge of such property may return such property” to the claimant. If the person in charge decides to return the property to the claimant as the rightful owner, the property is then “delivered” to the claimant, who executes a “declaration of ownership, which shall be retained by the person in charge of the property” Id.

Through its plain language and structure, OCGA § 17-5-54 (c) (3) reflects that the initial application for return of seized property must be made directly to the law enforcement agency with custody of the property, after which the agency’s property custodian will make the initial decision as to whether a particular claimant is the rightful owner to whom the property should be delivered. Nothing in subsection (c) (3) indicates that this procedural step can be sidestepped by filing an application for return of the property initially with a court.

Indeed, another subsection of the statute, OCGA § 17-5-54 (e), provides: “For any unclaimed personal property that is not a firearm, the sheriff, chief of police, or other executive officer of a law enforcement agency shall make application to the superior court for an order to retain, sell, or discard such property.” (Emphasis supplied.) As we have explained, “where the legislature uses certain language in one part of the statute and different language in another, the Court assumes different meanings were intended.” (Citation and punctuation omitted.) Robinson v. State, 312 Ga. App. 736, 750 (4) (d) (719 SE2d 601) (2011). The language in OCGA § 17-5-54 (e) shows that when the General Assembly intended for an application to be made directly to a court, it said so in express terms in the statute, and we must presume that the absence of similar language in subsection (c) (3) “was a matter of considered choice.” (Citation and punctuation omitted.) Deutsche Bank Nat. Trust Co. v. JP Morgan Chase Bank, 307 Ga. App. 307, 311 (1) (b) (704 SE2d 823) (2010).

Accordingly, OCGA § 17-5-54 (c) (3) requires that a party claiming to be the rightful owner file his or her application directly to the law enforcement agency with custody of the personal property rather than to a court in the first instance. In the present case, the uncon-troverted evidence showed that T. F. N. did not file an application directly with the police department for return of the cell phones, and thus never afforded the department an opportunity to evaluate and make a decision regarding his claim before seeking court intervention. The evidence of record therefore undisputedly showed that T F. N. failed to comply with the requirements imposed by OCGA § 17-5-54 (c) (3) for obtaining return of the cell phones, and thus he could not successfully claim that the police department had wrongfully refused to return the phones to him in violation of OCGA § 17-5-54 (c) (2).

For these combined reasons, the juvenile court committed no error in concluding that T. F. N. was required to and had failed to follow the requirements found in OCGA § 17-5-54 (c) (3) for seeking the return of the cell phones from the police department before seeking court intervention for an alleged violation by the department of OCGA § 17-5-54 (c) (2). The juvenile court therefore properly denied T. F. N.’s motion for return of the phones.

2. T. F. N. also contends that the juvenile court should have granted his motion for return of the cell phones because the police department’s continued retention of the phones without obtaining a new search warrant constituted an illegal seizure under the Fourth Amendment to the United States Constitution. T. F. N. failed to raise this constitutional argument in the court below, and the juvenile court did not rule on it. “Because this [Cjourt is a court for the correction of errors, we will not consider matters, even of constitutional magnitude, that were not raised and ruled upon in the trial court.” Walker v. State, 314 Ga. App. 714, 716, n. 3 (725 SE2d 771) (2012). See Morris v. Johnson, 262 Ga. App. 182, 185 (585 SE2d 375) (2003) (appellant waived argument that Fourth Amendment rights were violated, where argument was neither raised nor ruled upon by the trial court).

Decided April 14, 2017.

Randee J. Waldman, for appellant.

Robert D. James, Jr., District Attorney, Gerald Mason, Assistan t District Attorney, for appellee.

Judgment affirmed.

McMillian and Mercier, JJ., concur.

       The petition was later amended to add language to one of the counts, but the amendment is not relevant to the present appeal.

       The warrant application and affidavit, as well as the search warrant, were not included in the appellate record. To the extent that the appellate record is incomplete, T. F. N., as the appellant, “bore the burden of ensuring an accurate and complete record on appeal.” (Citation and punctuation omitted.) Griffin Builders v. Synovus Bank, 320 Ga. App. 307, 309 (739 SE2d 760) (2013).

       OCGA § 17-5-54 was revised by the General Assembly, effective July 1, 2015, and the revised statute applies in this case. See Ga. L.2015, p. 693, § 4-1/HB233 (“This Act shall become effective on July 1, 2015, and shall apply to seizures of property for forfeiture that occur on or after that date.”).

       “Law enforcement agency” is defined by the statute as “a law enforcement agency of this state or a political subdivision of this state, including the Department of Natural Resources.” OCGA § 17-5-54 (a) (3). “Rightful owner” is defined as “a person claiming ownership of property which is the subject of a crime or has been abandoned.” OCGA § 17-5-54 (a) (4).

       OCGA § 17-5-54 (b) provides:
      This Code section shall not apply to:
      (1) Personal property which is the subject of any civil forfeiture proceeding;
      (2) Any property which is the subject of a disposition pursuant to Code Sections 17-5-50 through 17-5-53; and
      (3) Any abandoned motor vehicle for which the provisions of Chapter 11 of Title 40 are applicable.
      T. F. N. does not contend that any of these provisions, including OCGA § 17-5-50, apply under the circumstances of this case.

        Norman cited to OCGA § 17-5-54 (a), which provided in 2013:
      (a) (1) Except as provided in Code Sections 17-5-55 and 17-5-56 and subsections (d), (e), and (f) of this Code section, when a law enforcement agency assumes custody of any personal property which is the subject of a crime or has been abandoned or is otherwise seized, a disposition of such property shall be made in accordance with the provisions of this Code section. When a final verdict and judgment is entered finding a defendant guilty of the commission of a crime, any personal property used as evidence in the trial shall be returned to the rightful owner of the property within 30 days following the final judgment; provided, however, that if the judgment is appealed or if the defendant files a motion for a new trial and if photographs, videotapes, or other identification or analysis of the personal property will not be sufficient evidence for the appeal of the case or new trial of the case, such personal property shall be returned to the rightful owner within 30 days of the conclusion of the appeal or new trial, whichever occurs last_
      (d) The provisions of this Code section shall not apply to personal property which is the subject of forfeiture proceedings as otherwise provided by law.

       Because the juvenile court properly denied T. F. N.’s motion for failing to comply with the requirements of OCGA § 17-5-54 (c) (3), we need not address whether the court properly denied T. F. N.’s motion on the alternative basis that there were ongoing criminal investigations justifying the continued retention of the phones. See Little v. City of Lawrenceville, 272 Ga. 340, 342 (2) (528 SE2d 515) (2000) (a trial court order will be affirmed if right for any reason).

       Because T. F. N. did not argue in the court below that the police department’s continued retention of the cell phones was an illegal warrantless seizure, we do not address whether T. F. N. could have sought return of the cell phones under OCGA § 17-5-30 rather than OCGA § 17-5-54. See OCGA § 17-5-30 (a) (“A defendant aggrieved by an unlawful search and seizure may move the court for the return of property, the possession of which is not otherwise unlawful, and to suppress as evidence anything so obtained on the grounds that: (1) The search and seizure without a warrant was illegal; or (2) The search and seizure with a warrant was illegal because the warrant is insufficient on its face, there was not probable cause for the issuance of the warrant, or the warrant was illegally executed.”).


source: Caselaw Access Project

author: Self, Judge.

license: Public Domain

text:
    A17A0233.
    DIXON v. THE STATE.
    (800 SE2d 11)
   Self, Judge.

Eric Dixon appeals from his convictions of one count of aggravated child molestation and four counts of child molestation. He argues that the trial court erred in (1) admitting evidence qualifying as “another offense of sexual assault” under OCGA § 24-4-413 or “another offense of child molestation” under OCGA § 24-4-414; and (2) declining to exercise its discretion to grant a new trial because the verdict was contrary to the weight of the evidence under OCGA § 5-5-21. For the reasons explained below, we affirm.

On appeal from a criminal conviction, the standard for reviewing the sufficiency of the evidence

is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. This Court does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury’s assessment of the weight and credibility of the evidence.

(Citations and punctuation omitted.) Hayes v. State, 292 Ga. 506 (739 SE2d 313) (2013). So viewed, the record shows that the female victim, who was 15 years old at the time of the trial, testified that Dixon dated her mother. When the victim was around nine to ten years old, Dixon touched her breasts, but she never told her mother.

Another incident occurred when the victim was lying on the floor and her mother was asleep on the couch. Dixon placed a blanket over the victim, lay down beside her, and touched her vaginal area with his hand underneath her clothing. Her mother did not awaken, and the victim did not tell her what Dixon had done.

On a different, occasion, Dixon instructed the victim to “suck his penis” in the kitchen after her mother went to the store. She explained that she did not want to do it, but “every time he would pull me forward, I jerked away and he kept on doing it and I had did it and he wanted me to do it more and I kept on jerking away and pulling my head away and I didn’t do it anymore.” On this same occasion, Dixon made her touch his penis. The victim explained that Dixon told her “he would hurt [her] or [her] family” if she told or did not do what he wanted.

When the victim later told her aunt about Dixon’s conduct, the aunt took her to the police, where the victim spoke with a detective. She subsequently gave a video-recorded forensic interview at the Children’s Advocacy Center, and the State played the video for the jury during the trial. At the beginning of the interview, in response to a question about why she was being interviewed, the victim stated it was “about me being raped or sexual touch.” She described the incident in the kitchen as happening while her mother “was passed out on the couch.” At trial, the victim admitted that this last statement was inconsistent with her testimony that her mother was at the store when the incident in the kitchen occurred.

At one point during the interview, the victim stated that her mother was doing “really bad right now” and would leave her at home alone when she would go out. She explained that this was why she wanted to go live with her father. She also described a meeting with both of her parents a few days before the interview in which her mother said she did not know about Dixon’s behavior. According to the victim, her mother “tried to lie about it,” because the mother also stated that the victim’s grandparents knew about it. According to the victim, her mother finally admitted that she did know about Dixon’s behavior, but the victim did not know how her mother knew about it.

At trial, the victim conceded that her version of events in the forensic interview made it appear like Dixon’s abuse occurred “every time her mom left” over a two-year period and that this was not true. She also acknowledged that her aunt no longer allowed her to live in her home because of a dispute relating to lying and that she was currently living with her mother again after a stint in foster care. Finally, she denied telling another adult that Dixon had penetrated her vagina with his penis.

The victim’s grandmother testified that it was her personal opinion that the victim’s character was one of untruthfulness. According to the grandmother, the victim confessed to her that she had lied about Dixon saying “something out of the way to her.” It is unclear from the grandmother’s testimony what is meant by saying “something out of the way.” According to the victim, Dixon was good friends with her grandparents.

The State also introduced evidence of another offense of child molestation or sexual assault. W. T., who was 23 years old at the time of the trial, testified that when he was between the ages of six and eleven years old, Dixon, who was married to his mother, began touching his genitals. Over time, Dixon began having anal sex with W. T., and W. T. performed oral sex upon Dixon. W. T. testified that Dixon threatened to take him into the woods and shoot him if he told anyone what they did.

When W. T. told his mother what was happening in the fourth or fifth grade, Dixon was waiting for him when he came home from school and yelled at him and accused him of lying. Dixon then took W. T. and his mother to W. T.’s school “and then started yelling at all the counselors and people in the front office” about the allegations. At that point in time, W. T. had only told his mother about Dixon’s sexual abuse. After this incident at the school, “nothing ever happened and no investigation was launched[.]” W. T. explained that “[i]t was just a whole ordeal and then [Dixon] left for a while and then came back.” When W. T. turned 11 years old, the abuse started slowing down and it ultimately stopped after his mother ended the relationship.

The investigating police officer testified that school counselors are mandatory reporters who are required to notify law enforcement of allegations of child molestation. He acknowledged, however, that “[t]here are times when it doesn’t get reported by [a] mandated reporter. . . He explained that he did not do any investigation of W. T.’s allegations of molestation because they took place in a different county and that he therefore referred W. T. to the sheriff’s office in that county

1. Dixon maintains that the “trial court erred by allowing uncorroborated and unduly probative testimony [by W. T.] which was substantially prejudicial to . . . Dixon’s defense.” We disagree.

As this case was tried after July 1, 2013, the effective date of Georgia’s new Evidence Code, Ga. L. 2011, p. 99, § 101, the State sought to introduce W. T.’s testimony pursuant to OCGA §§ 24-4-404 (b), 24-4-413 (b), and 24-4-414 (b).

OCGA § 24-4-413 (a) provides: “In a criminal proceeding in which the accused is accused of an offense of sexual assault, evidence of the accused’s commission of another offense of sexual assault shall be admissible and may be considered for its bearing on any matter to which it is relevant.” An offense of sexual assault includes sodomy See OCGA §§ 24-4-413 (d) (1); 16-6-2 (a) (1).

OCGA § 24-4-414 (a) provides: “In a criminal proceeding in which the accused is accused of an offense of child molestation, evidence of the accused’s commission of another offense of child molestation shall be admissible and may be considered for its bearing on any matter to which it is relevant.” An “offense of child molestation” is defined as “any conduct or attempt or conspiracy to engage in . . . [a]ny crime that involves contact between any part of the accused’s body... and the genitals or anus of achild[.]”OCGA § 24-4-414 (d) (2).

These provisions supersede the provisions of OCGA § 24-4-404 (b) in sexual assault and child molestation cases. See Steele v. State, 337 Ga. App. 562, 566 (3), n. 5 (788 SE2d 145) (2016); Dority v. State, 335 Ga. App. 83, 95 (3) (780 SE2d 129) (2015), and “create a ‘rule of inclusion,’ with a strong presumption in favor of admissibility as [each] provides that such evidence ‘shall be admissible.’ ” (Citations omitted.) Steele, supra, 337 Ga. App. at 566 (3). Thus, the State can seek to admit evidence under these provisions for any relevant purpose, including propensity Id.; Dority, supra.

(a) Dixon contends that W. T.’s testimony should not have been admitted because it was uncorroborated and the State did not “produce any evidence [that W. T.’s] allegations were ever reported or investigated.” As Georgia’s new evidence rules mirror their federal counterparts, our appellate courts “look for guidance to the decisions of the federal appellate courts, particularly the United States Supreme Court and the Eleventh Circuit, interpreting the federal rules in question.” Davis v. State, 299 Ga. 180, 185 (2) (a) (2) (787 SE2d 221) (2016). An examination of this guidance shows that corroboration, criminal charges, or a conviction is not required for the admission of other acts evidence under the Federal Rules of Evidence. See United States v. Bush, Case No. 15-15401, 2016 U. S. App. LEXIS 22878 at *3-4 (11th Cir. 2016) (“[a] single witness’s uncorroborated testimony can provide an adequate basis for a jury to find that the prior act occurred”); United States v. Guidry, 456 F3d 493, 501-502 (III) (A) (1) (5th Cir. 2006) (terms “offense” and “crime” in Federal Rule of Evidence 413 do not limit the evidence to that which is proven by conviction); Johnson v. Elk Lake School Dist., 283 F3d 138, 151 (III) (D) (3rd Cir. 2002) (uncharged conduct admissible under Federal Rules of Evidence 413-415). Indeed, a prior acquittal of a criminal charge will not necessarily preclude admission of other act evidence under the Federal Rules of Evidence. See United States v. Smith, 148 Fed. Appx. 867, 870 (11th Cir. 2005). Finally, a trial court “need not make a preliminary finding that the alleged prior similar conduct in fact occurred before admitting it into evidence.” United States v. Rodriguez, 917 F2d 1286, 1290, n. 7 (11th Cir. 1990), vacated in part on other grounds, 935 F2d 194, 196 (11th Cir. 1991). Instead, a trial court’s decision to admit other act evidence will be affirmed “if a jury could find by a preponderance of the evidence that the defendant committed the act.” Bush, supra at *3.

Because a jury could have concluded by a preponderance of the evidence in this case that Dixon committed the acts described by W. T., we find no merit in this portion of Dixon’s argument on appeal. See Smart v. State, 299 Ga. 414, 419 (2) (c) (788 SE2d 442) (2016) (noting eyewitness testimony sufficient proof for jury to conclude that defendant committed acts admitted under OCGA § 24-4-404 (b)).

(b) Dixon also argues that the trial court erred by failing to conclude that the probative value of W. T.’s testimony was “substantially outweighed by its danger of unfair prejudice.” We disagree.

Our analysis of this argument is governed by OCGA § 24-4-403, which provides: “Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Georgia courts have already established that

[t]his determination lies within the discretion of the trial court and calls for a common sense assessment of all the circumstances surrounding the extrinsic offense, including prosecutorial need, overall similarity between the extrinsic act and the charged offense, as well as temporal remoteness.

(Punctuation omitted.) Eubanks v. State, 332 Ga. App. 568, 570 (1) (774 SE2d 146) (2015). See also Bradshaw v. State, 296 Ga. 650, 657-658 (3) (769 SE2d 892) (2015).

The application of the [OCGA § 24-4-403] test is a matter committed principally to the discretion of the trial courts, but as we have explained before, the exclusion of evidence under [OCGA § 24-4-403] is an extraordinary remedy which should be used only sparingly. The major function of [OCGA § 24-4-403] is to exclude matter of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect.

(Citations and punctuation omitted.) Smart, supra, 299 Ga. at 418 (2) (b). “In close cases, the balance should be struck in favor of admissibility . . ." Gerbert v. State, 339 Ga. App. 164, 177 (3) (b) (793 SE2d 131) (2016).

While it is clear that OCGA § 24-4-403 applies to evidence admitted under OCGA §§ 24-4-413 and 24-4-414, and their corresponding federal counterparts, neither Georgia courts nor the Eleventh Circuit has expressly decided whether evidence admitted under these Code provisions “should be evaluated under a different, type of Rule 403 balance that weighs in favor of admission.” United States v. Brimm, 608 Fed. Appx. 795, 799 (I) (D), n. 6 (11th Cir. 2015) (declining to address issue based upon its finding that trial court did not abuse its discretion under test applied to other acts evidence admitted pursuant to Rule 404 (b) that is more favorable to the defendant); Eubanks, supra, 332 Ga.App. at 570(1) (analyzing application of OCGA § 24-4-403 under standard applied to evidence admitted under OCGA § 24-4-404 (b) and Federal Rule of Evidence 404 (b)). “Over time, the [federal] circuit courts have developed distinct approaches to the application of the Rule 403 balancing test in determining the admissibility of prior sexual misconduct evidence under Rules 413-415.” Jeffery A. Palumbo, “Ensuring Fairness and Justice Through Consistency: Application of the Rule 403 Balancing Test to Determine Admissibility of Evidence of a Criminal Defendant’s Prior Sexual Misconduct under the Federal Rules,” 9 Seton Hall Cir. Rev. 1, 12 (2013). See also Fang Bu, “Searching for a Better Constitutional Guarantee for the FRE 413-415: The Conflict Among Circuits in Applying the FRE 403 Balancing Test and a New Solution,” 16 U. Ill. L. Rev. 1905, 1915-1916 (2016).

Like the Eleventh Circuit in Brimm, supra, however, we need not address this question as the trial court did not abuse its discretion under the typical balancing test applied to evidence admitted under OCGA § 24-4-404 (b). When reviewing whether a trial court has abused its discretion in its application of the balancing test in OCGA § 24-4-403, it is important to bear in mind the distinction between relevance and probative value.

Relevance and probative value are related, but distinct, concepts. Relevance is a binary concept — evidence is relevant or it is not — but probative value is relative. Evidence is relevant if it has “any tendency” to prove or disprove a fact, whereas the probative value of evidence derives in large part from the extent to which the evidence tends to make the existence of a fact more or less probable. Generally speaking, the greater the tendency to make the existence of a fact more or less probable, the greater the probative value. And the extent to which evidence tends to make the existence of a fact more or less probable depends significantly on the quality of the evidence and the strength of its logical connection to the fact for which it is offered. See Milich, Georgia Rules of Evidence § [6:1] (2015) (“Probative value refers to the strength of the connection between the evidence and what it is offered to prove.”). Probative value also depends on the marginal worth of the evidence — how much it adds, in other words, to the other proof available to establish the fact for which it is offered. The stronger the other proof, the less the marginal value of the evidence in question. See 2 Weinstein’s Fed. Evid. § 404.21 [3] [a] (“[T]he availability of other, less prejudicial, evidence on the same point ordinarily reduces the probative value of a given item of extrinsic evidence.”). And probative value depends as well upon the need for the evidence. When the fact for which the evidence is offered is undisputed or not reasonably susceptible of dispute, the less the probative value of the evidence. See Mueller & Kirkpatrick, [Evidence] § 4.21 [(1995)] (“The more strongly an issue is contested, the greater the justification for admitting other act evidence bearing on the point.”).

(Citations and footnotes omitted; emphasis in original.) Olds v. State, 299 Ga. 65, 75-76 (2) (786 SE2d 633) (2016).

In this case, the State’s need for the evidence was great based upon Dixon’s attacks on the victim’s credibility, the lack of any physical evidence, and the victim’s delayed outcry. See Eubanks, supra, 332 Ga. App. at 570 (1). With regard to the overall similarity of Dixon’s acts, each involved inappropriate sexual contact between Dixon and a child of similar age to whom Dixon gained access through a relationship with the child’s mother. While the victims were of a different gender, this Court previously recognized in a case involving the application of our former Evidence Code that “[t]he sexual abuse of young children, regardless of the sex of the victims or the nomenclature or type of acts or other conduct perpetrated upon them, is of sufficient similarity to make the evidence admissible. This is because sex crimes against children require a unique bent of mind.” (Citations and punctuation omitted.) Gunn v. State, 300 Ga. App. 229, 232 (3) (684 SE2d 380) (2009). As in Brimm, supra, W. T.’s “testimony was highly probative of [Dixonj’s motive.” 608 Fed. Appx. at 799 (I) (D). See also Eubanks, supra, 332 Ga. App. at 570 (1). The passing of seven to thirteen years between Dixon’s molestation of W T. and the victim in this case does not mandate the conclusion that the trial court abused its discretion in its application of the OCGA § 24-4-403 balancing test, particularly where Dixon’s access to the children was based upon a relationship with their mother. Id. And finally, the trial court’s limiting instruction to the jury in this case mitigated the risk of undue prejudice. Brimm, supra, 608 Fed. Appx. at 800 (I) (D); Eubanks, supra, 332 Ga. App. at 570 (1). Under these circumstances, we find no abuse of the trial court’s discretion in admitting the evidence of Dixon’s prior molestation of a minor victim.

2. Dixon argues that the trial court erred by failing to exercise its discretion under OCGA § 5-5-21 to grant a new trial because the verdict was “decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding.” Id.

Even when the evidence is legally sufficient to sustain a conviction, a trial judge may grant a new trial if the verdict of the jury is “contrary to . . . the principles of justice and equity,” OCGA § 5-5-20, or if the verdict is “decidedly and strongly against the weight ofthe evidence.” OCGA § 5-5-21. When properly raised in a timely motion, these grounds for a new trial — commonly known as the “general grounds” — require the trial judge to exercise a “broad discretion to sit as a ‘thirteenth juror.’ ”

(Citation and punctuation omitted.) Allen v. State, 296 Ga. 738, 740 (2) (770 SE2d 625) (2015).

In this case, the record shows that Dixon filed a motion for new trial in which he alleged that the verdict was “contrary to law,” “contrary to the evidence,” “strongly against the weight of the evidence,” and “not supported by the weight of the evidence.” In the hearing on the motion for new trial, Dixon argued that “neither one of these victims were credible” and asked “the Court to find that [the verdict] was against the weight of the evidence and grant a new trial.”

At the conclusion of the hearing, the trial court stated:

[Y] ou know, the way I look at it there is a jury instruction that says they’re to take these conflicts and do it themselves which one is believable and not believable. While there were inconsistencies, I’m just going to stick by what the jury did. They are the ones that weighed the evidence. I’ll deny your motion.

It then entered the following one-sentence written order on the same day: “The above case having come on to be heard by this Court on the Defendant’s Motion for New Trial on July, 13, 2016 and, after hearing the argument of counsel, the Defendant’s motion is hereby DENIED.”

(a) Contrary to Dixon’s argument on appeal, neither the trial court’s order nor its statement during the hearing demonstrates that it failed to exercise the discretion afforded to it under OCGA § 5-5-21. The Supreme Court of Georgia has approved the use of summary orders denying motions for new trial, stating:

Although the order did not explicitly state that the court was exercising its broad discretion as the thirteenth juror in deciding the motion, it is well established that [appellate courts] must presume that the trial judge knew the rule as to the necessity of exercising his discretion, and that he did exercise it. We can not assume, in the absence of positive evidence to the contrary, that the judge knowingly declined to exercise his discretion.

(Citation and punctuation omitted.) Butts v. State, 297 Ga. 766, 771-772 (3) (778 SE2d 205) (2015). This presumption applies “unless the language of the order indicates to the contrary and that the trial judge agreed to the verdict . . . against the dictates of his own conscience, merely because he did not feel that he had the duty or authority to override the findings of the jury upon disputed issues of fact.” (Citations and punctuation omitted.) Jones v. State, 339 Ga. App. 95, 105 (4) (791 SE2d 625) (2016).

Decided April 19, 2017.

Richard K. Murray, for appellant.

Herbert E. Franklin, Jr., District Attorney, for appellee.

Here, the trial court’s oral statement that it was “just going to stick by what the jury did,” despite the inconsistencies it recognized in the testimony, falls short of the positive evidence necessary to demonstrate that the trial court failed to exercise its discretion. Instead, it was merely the trial court’s manner of expressing that it was exercising its discretion against setting aside the jury’s verdict. Additionally, “[wjhile a judge’s oral statements on the record may provide insight into the intent of [his] subsequent written judgment, any discrepancies between the two must be resolved in favor of the written judgment.” (Citation and punctuation omitted.) In the Interest of R. W., 315 Ga. App. 227, 231 (3) (b) (726 SE2d 708) (2012).

(b) To the extent Dixon argues that the trial court erred by reaching the wrong conclusion in the exercise of its discretion, we cannot consider it. A motion for new trial on this ground “is not properly addressed to this Court as such a decision is one that is solely within the discretion of the trial court.” Smith v. State, 300 Ga. 532, 534 (1) (796 SE2d 671) (2017).

Judgment affirmed.

Dillard, P J., and Ray, J., concur.

       According to the investigating police officer, this adult, who did not testify at trial, told him that the victim revealed to her that Dixon had done so on more than one occasion.

       OCGA § 24-4-404 (b) provides the general rule for the admission of evidence of “other crimes, wrongs, or acts. . . .”

       As this issue is not currently before us, we express no opinion on whether uncorroborated accomplice testimony may be used to prove other acts under Georgia’s new Evidence Code. See Bradshaw v. State, 296 Ga. 650, 653 (2) (769 SE2d 892) (2015) (corroboration of accomplice testimony required under new Evidence Code in order for it to be sufficient to sustain a conviction); Dean v. State, 292 Ga. App. 695, 700 (3) (665 SE2d 406) (2008) (under Georgia’s former Evidence Code “a prior similar transaction may not be proved solely by the uncorroborated testimony of an accomplice”) (punctuation omitted).


author: Bethel, Judge.

text:
    A17A0459.
    SANCHEZ-VILLA v. THE STATE.
    (799 SE2d 364)
   Bethel, Judge.

Felipe Sanchez-Villa appeals from his conviction of one count of trafficking in cocaine pursuant to OCGA § 16-13-31 (a) (1) (C), for which he was sentenced to 25 years imprisonment and ordered to pay a $1,000,000 fine. On appeal, he contends that the trial court erredby permitting the State to introduce evidence from a United States Drug Enforcement Administration (DEA) investigation of him. The evidence included testimony from a DEA agent regarding the agency’s surveillance of Sanchez-Villa for over a year prior to his arrest and a recording of a conversation involving Sanchez-Villa that occurred almost a month prior to his arrest on the cocaine trafficking charge. Sanchez-Villa also contends that the trial court erred by not instructing the jury on an “equal access” defense and that it erred in instructing the jury as to conspiracy While we affirm the trial court’s rulings in regard to jury instructions for equal access and conspiracy, we find that the trial court abused its discretion in admitting the evidence of the DEA investigation as “intrinsic” evidence of the charged trafficking offense. Because we further find this error was harmful, we vacate Sanchez-Villa’s conviction and remand this matter for a new trial consistent with this opinion.

On appeal, the defendant “is no longer presumed innocent and all of the evidence is to be viewed in the light most favorable to the jury verdict.” Batten v. State, 295 Ga. 442, 443 (1) (761 SE2d 70) (2014) (citations omitted).

So viewed, on April 8, 2014, the DeKalb County High Intensity Drug Trafficking Area Task Force (the “Task Force”) received a tip from a confidential informant (Cl) indicating that a drug transaction would take place that evening at a particular gas station around 10:00. The Cl indicated that a suspect (whom he identified as “Cuarenta”) would arrive in a gray Honda Accord and that he would meet someone driving a black Lincoln.

A Honda matching that description arrived after Task Force officers began monitoring the area, and it was joined minutes later by a black Lincoln. The driver of the Lincoln then exited the vehicle, approached the Honda, and began speaking through its driver’s side window.

The man returned soon after to the Lincoln, and the Lincoln drove off. The Honda followed the Lincoln, and Task Force officers followed both vehicles until they parked in front of a restaurant close by. An officer observed the driver of the Lincoln remove a “weighted down” duffel bag from the Lincoln’s trunk and place it in the back seat of the Honda. The man then returned to the Lincoln and drove off.

Several minutes later, the Honda drove away. The Task Force officers began following the Honda. They then instructed an officer from the DeKalb County Police Department (who was not part of the Task Force) to look for the Honda, giving a description. Soon after, the DeKalb police officer encountered the Honda speeding and pulled it over.

After backup arrived, the officer approached the driver, later identified as Sanchez-Villa. He saw that the Honda was equipped with special hand controls and noted that Sanchez-Villa appeared to be disabled.

During the stop, the officers noted that Sanchez-Villa had nothing in his hands, but when one of the officers looked into the back seat, he saw a large duct-taped block on the floor between the passenger’s feet. The officer instructed the passenger and Sanchez-Villa to exit the vehicle. The officer picked up the block and asked Sanchez-Villa and the passenger whether it belonged to them. The passenger shook his head “no,” and Sanchez-Villa stated, “No, I don’t know what that is.” The officer opened the block, and its contents field-tested positive for cocaine. Sanchez-Villa and the passenger were then arrested.

Incident to the arrest, Task Force officers searched the vehicle and located hidden compartments adjacent to the back seats. They located roughly eight additional kilograms of cocaine in that space; no cocaine was located in the front seat area of the vehicle. Officers also recovered an empty black duffel bag from the back seat, as well as two wallets containing cash. They later determined that the Honda was not registered to Sanchez-Villa.

Sanchez-Villa was indicted for trafficking in cocaine, and the indictment alleged that Sanchez-Villa and the passenger, individually and as parties concerned in the commission of a crime, were guilty of possessing the requisite amounts of cocaine. Sanchez-Villa entered a not guilty plea.

Prior to trial, the State indicated to Sanchez-Villa, through supplemental discovery, that it had evidence of a DEA investigation of Sanchez-Villa that had been ongoing for over a year preceding his arrest. That evidence included a secret DEA recording from March 11, 2014, in which an individual the State claimed to be Sanchez-Villa discussed the sale of significant quantities of cocaine and marijuana with a Cl who was cooperating with the DEA.

The State also brought forth testimony through a DEA agent detailing the agency’s investigation of Sanchez-Villa, including the agent’s knowledge that Sanchez-Villa was a cocaine supplier and his characterization of Sanchez-Villa as a “heavy distributor” of drugs in the metro Atlanta area. The DEA agent also discussed various forms of lingo for cocaine used by Sanchez-Villa in the recorded conversation, which the agent indicated were in common use in conversations regarding cocaine trafficking. The DEA agent stated that, at various times, Sanchez-Villa had been observed driving the same Honda that he was driving at the time of the arrest. The DEA agent also testified that he was aware the Honda had secret compartments. According to his testimony, the agent knew from his investigation that Sanchez-Villa was disabled and that he went by the alias “Carnal.”

The Task Force did not know Sanchez-Villa was under DEA investigation at the time of arrest. Likewise, the DEA was not aware of the Task Force’s investigation of Sanchez-Villa until after he was arrested and charged.

At trial, Sanchez-Villa conceded that cocaine was found in the vehicle, but he argued that he had no knowledge of the cocaine or the hidden compartments in the vehicle and was merely present as a driver. In light of this defense, the State initially argued in pre-trial proceedings that evidence from the DEA investigation was admissible to establish Sanchez-Villa’s knowledge of drugs and drug trafficking. The State later clarified that it sought to admit the recording and the agent’s testimony because such evidence was “intrinsic” to the events surrounding the trafficking charge. As discussed more fully in Division 1, infra, the trial court admitted the testimony and the recordings on this basis over various objections by Sanchez-Villa, noting that the cocaine discussed in the secret recording “could very well be the same cocaine” seized from the Honda.

Upon the State’s request, the jury was instructed regarding the principles of joint, actual, and constructive possession of narcotics, but the State did not request an instruction as to the presumption of possession. However, because the State presented evidence and emphasized in its opening and closing statements that Sanchez-Villa was, as the driver of the Honda, in control of the cocaine, Sanchez-Villa argued that the jury should be instructed as to the “equal access” defense even though the jury had not been instructed as to the presumption of possession that such defense would rebut. The trial court denied this request. The State also requested that the jury be instructed as to conspiracy, arguing that the evidence presented at trial supported this charge even though it was not part of the indictment. This request was granted over Sanchez-Villa’s objection. Following his conviction, Sanchez-Villa brought this direct appeal.

1. Sanchez-Villa first argues that the trial court’s decision to admit evidence from the DEA investigation, including the recorded conversation, violated OCGA § 24-4-404 (b) (“Rule 404 (b)”), as it was admitted without pre-trial notice from the State.

Rule 404 (b) provides, in pertinent part:

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, . . . knowledge .... 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.

OCGA § 24-4-404 (b). We review decisions to admit evidence for abuse of discretion. Reeves v. State, 294 Ga. 673, 676 (2) (755 SE2d 695) (2014).

Before trial, the State initially argued to the trial court that evidence from the DEAinvestigation was necessary to show Sanchez-Villa’s knowledge of drugs and drug trafficking. However, at a later pre-trial hearing and an evidentiary hearing held outside the presence of the jury, the State clarified that such evidence was not being offered pursuant to Rule 404 (b) but rather was admissible as intrinsic evidence of the trafficking charge.

This case thus turns on whether the evidence at issue was “intrinsic” to the charged offense. Sanchez-Villa argues that the State failed to sufficiently link the DEA evidence to the events immediately surrounding Sanchez-Villa’s arrest, and therefore such evidence cannot be intrinsic to the charged trafficking offense. For the reasons set forth below, we agree with that contention.

(a) Despite longstanding prohibitions on the use of character evidence, the traditional concept of res gestae provided that all the acts and circumstances surrounding the charged offense were admissible even if they reflected upon the defendant’s character. Baughns v. State, 335 Ga. App. 600, 602 (1) (782 SE2d 494) (2016). This rule of admissibility has been carried forward to the new rules of evidence “under the concept of ‘intrinsic’ evidence, as opposed to ‘extrinsic’ evidence, i.e., evidence of‘other crimes, wrongs, or acts,’which is subject to the admissibility requirements of OCGA § 24-4-404 (b).” Satterfield v. State, 339 Ga. App. 15, 19 (1) (a) (792 SE2d 451) (2016) (footnote omitted). “Evidence is intrinsic ‘if it is (1) an uncharged offense which arose out of the same transaction or series of transactions as the charged offense, (2) necessary to complete the story of the crime, or (3) inextricably intertwined with the evidence regarding the charged offense.’ ” Brooks v. State, 298 Ga. 722, 726 (2), n. 11 (783 SE2d 895) (2016) (quoting United States v. Utter, 97 F3d 509, 513 (II) (B) (11th Cir. 1996)).

In its brief, the State relies heavily upon this Court’s recent decisions in Satterfield and Baughns as well as the Eleventh Circuit’s decisions in United States v. Gay, United States v. Williams-Hill, United States v. Lewis, and United States v. Foster to argue that the recording and the evidence of the DEA investigation were intrinsic to the charged offense. The State suggests that, as in those cases, the evidence at issue was both part of the same series of transactions as the cocaine trafficking offense and that it was inextricably intertwined with the offense. Because we find each case cited by the State to be distinguishable from this case and further fail to find the suggested bond between the evidence introduced and the charged offense, we disagree.

As an initial matter, we note that the timeline established by the DEA agent’s testimony essentially ends on the date on which Sanchez-Villa was secretly recorded by the DEA (just under a month before his arrest for trafficking). While this temporal attenuation is not disposi-tive in this case, it does distinguish this case from Satterfield, where the evidence at issue was based on an act (possessing a gun) that occurred while law enforcement believed the defendant was in the process of carrying out the charged offense. The evidence at issue in this case is considerably more attenuated in time and space from the events leading up to the charged offense, so Satterfield offers little help to the State.

The remaining cases relied upon by the State are best viewed as “modus operan di” and “ongoing criminal concern” cases. Each of those decisions upheld the admission of evidence showing that behavior, actions, or other characteristics of the transaction for which the defendant was charged were virtually identical to the defendant’s pattern of criminal behavior at some prior time or were part of a continuous illicit business operation. See Baughns, 335 Ga. App. at 600; Gay, 423 Fed. Appx. at 873-875; Williams-Hill, 592 Fed.Appx. at 889-890; Lewis, 373 Fed. Appx. at 931-932; Foster, 889 F2d at 1053 (III) (A) (1).

Here, however, the contested evidence fails to show a clear modus operandi on the part of Sanchez-Villa. The evidence — specifically, the recording — showed Sanchez-Villa to be a potential seller of cocaine, whereas he was charged in this case following a purchase of cocaine. This inconsistency alone argues against finding that the DEA evidence showed a well-defined pattern of activity that was virtually identical to Sanchez-Villa’s behavior at the time of his arrest. Cf. Williams-Hill, 592 Fed. Appx. at 890.

Likewise, Sanchez-Villa is identified in the recording and by the DEA agent by the alias “Carnal,” but no other evidence presented at trial shows him going by that name at the time of the trafficking arrest. In contrast, the Cl’s tip to the Task Force involved the alias “Cuarenta.” The State makes no effort to show that “Carnal” and “Cuarenta” are the same person, and, in any event, the DEA agent’s testimony regarding Sanchez-Villa’s use of the “Carnal” alias does not fit into any other clear pattern of behavior shown by other evidence presented by the State.

At most, the DEA agent’s testimony confirms that Sanchez-Villa was driving the same Honda at the time of the recording that he was driving at the time of the arrest. While the DEA agent’s testimony at trial confirms that the agent was aware that the Honda “had a trap in the back portion of the back seat,” neither this testimony nor any other evidence offered by the State connects Sanchez-Villa’s use of that vehicle at the time of the recording (driving to discuss a potential drug sale) with his use of the vehicle at the time of the arrest (driving to make a drug purchase). Without more, the DEA agent’s testimony that he was aware that the Honda contained a secret compartment does not establish a modus operandi on the part of Sanchez-Villa. Cf. Foster, 889 F2d at 1053 (III) (A) (1).

Baughns and Gay can also be characterized as “crime spree” cases. In both cases, the evidence found to be intrinsic was in regard to a series of similar crimes involving the defendant that all had similar characteristics. However, unlike the evidence in those cases, the contested evidence here is more general in nature and does not specifically show Sanchez-Villa participating in a series of similar drug buys leading up to the charged offense, cf. Baughns, 335 Ga. App. at 600 (1); nor does it show him acting with the same participants or playing a role similar to that which he was performing in the transaction for which he was arrested. Cf. Gay, 423 Fed. Appx. at 873; Baughns, 335 Ga. App. at 603 (1). In addition, the State did not establish before the jury that the discussion captured by the recording was the predicate sale transaction for which Sanchez-Villa was seeking supply when he was arrested. While the trial court speculated that the cocaine discussed in the recording may well have been the same cocaine that was seized in the arrest, the State did not present any evidence or make any argument to the jury to that effect.

Therefore, we hold that under Brooks, the DEA agent’s testimony and the recording were not part of the same series of transactions or occurrences as the charged offense, and similarly, that such evidence was not inextricably intertwined with the charged offense.

The State also asserted at oral argument that admission of evidence from the DEA investigation satisfies the final Brooks factor in that it was necessary to complete the story of this crime. We disagree.

Sanchez-Villa was arrested by a DeKalb County police officer following a call from a Task Force agent who was also employed by DeKalb County. The DEA was not involved in the surveillance or the apprehension of Sanchez-Villa that night, and the State concedes that neither the Task Force agents nor the DeKalb officer knew that a DEA investigation involving Sanchez-Villa had been ongoing. The testimony from the DEA agent and the recording thus shed no light on why the DeKalb police began surveilling Sanchez-Villa that night or what they later found in his vehicle. Cf. Gay, 423 Fed. Appx. at 875-876 (II) (A) (evidence of defendant’s status as parolee helped jury understand why parole officer participated in search of his home and vehicle and knew of his financial situation).

Likewise, despite the trial court’s theory that Sanchez-Villa may have planned to use the cocaine seized in the arrest to fill the order discussed in the recording, neither the DEA agent’s testimony nor the recording is necessary to give context to the essential facts of this case. Because Sanchez-Villa is charged with a possession-based offense (albeit possession of a large quantity of contraband), the essential story of the case begins with the tip received by the Task Force and concludes with the traffic stop where Sanchez-Villa was arrested and the drugs were seized. Thus, rather than completing the story of this crime in any meaningful way, evidence from the DEA investigation expands it considerably.

Accordingly, as the evidence lacks any demonstrated connection to the events on the night of Sanchez-Villa’s arrest, we hold that evidence from the DEA investigation was not intrinsic to the charged trafficking offense. The testimony was thus in regard to “other acts” by Sanchez-Villa, and as it was ostensibly offered by the State to prove knowledge, the trial court abused its discretion by admitting this evidence without requiring the State to provide Sanchez-Villa with notice pursuant to Rule 404 (b).

(b) Finding error, we must also determine whether this error was harmful. “The test for determining nonconstitutional harmless error is whether it is highly probable that the error did not contribute to the verdict.” Rivera v. State, 295 Ga. 380, 382 (2) (761 SE2d 30) (2014) (citation omitted). Under the “highly probable” test, “a reversal is not required if the evidence of guilt is overwhelming in that there is no reasonable probability that the verdict of the jury would have been different in the absence of [the] error.” Lowther v. State, 263 Ga. App. 282, 283 (1) (587 SE2d 335) (2003) (citations and punctuation omitted). Admission of evidence does not constitute reversible error where, viewing the posture of the entire record, it is highly probable that its admission did not contribute to the verdict. Id.

Here, we find that the trial court’s decision to admit the contested evidence was harmful. The DEA agent was one of only four witnesses called in the trial, and his testimony was not cumulative, as each of the other witnesses spoke only to events that transpired the night of the arrest. See Doyal v. State, 287 Ga. App. 667, 669-670 (2) (653 SE2d 52) (2007) (cumulative nature of erroneously admitted evidence is relevant to harmful error analysis). In addition, the DEA agent’s testimony and the recording were referred to multiple times in the State’s closing argument, and the State invited the jury to disregard Sanchez-Villa’s mere presence defense based on this evidence. Importantly, the DEA agent’s testimony and the recording, offered without any limitation as to how they should be used by the jury, encouraged the jury to see Sanchez-Villa as a “heavy distributor” of narcotics and place its entire consideration of the case in that context. See Britton v. State, 257 Ga. App. 441, 443 (1) (571 SE2d 451) (2002) (harmful error where erroneously admitted evidence placed defendant’s character at issue “by implicating him in criminal activity and by revealing that the police had been interested in him for a period of time”) (citation omitted).

While Sanchez-Villa concedes that the other evidence in the record was sufficient to support the trafficking charge, the State’s broad use of the DEA agent’s testimony and the recording in this case illustrates precisely the type of risk that Rule 404 (b) is designed to mitigate. Because it is highly probable that the jury’s verdict was affected by the decision to admit the contested evidence, we therefore find that the trial court’s decision to admit this evidence constituted reversible error.

In so ruling, we acknowledge that, at retrial, the trial court may well have discretion to admit some or all of the DEA agent’s testimony and the recording pursuant to Rule 404 (b). However, in exercising such discretion, the trial court must consider the factors set forth in Bradshaw v. State, 296 Ga. 650, 656 (3) (769 SE2d 892) (2015), and apply the other procedural safeguards in Rule 404 (b), including granting the defendant an opportunity to request that the jury be instructed as to the limited purposes for which it may consider the evidence.

Finding that the admission of this evidence constitutes reversible error, we therefore vacate Sanchez-Villa’s conviction and remand this matter for a new trial consistent with this opinion.

2. Because they implicate issues that are likely to arise on retrial, we will also consider Sanchez-Villa’s other enumerations of error. Sanchez-Villa argues that the trial court erred by not instructing the jury as to the “equal access” defense. He claims that the evidence presented at trial supported the defense — namely that the controlled substances seized from the vehicle were not in Sanchez-Villa’s immediate possession at the time and that he and the other occupants of the vehicle had equal access to it leading up to the arrest and seizure. Sanchez-Villa also argues that the State opened the door to this defense by arguing that a presumption of possession of the controlled substances should attach to Sanchez-Villa. We disagree.

The State did not request, and the trial court did not include, an instruction to the jury regarding the presumption of possession. As this Court has held, a charge on the equal access defense is appropriate only to counter a jury instruction on the presumption of possession, and when no instruction is given on the presumption, an equal access instruction is not required. See Kan v. State, 199 Ga. App. 170, 171 (3) (404 SE2d 281) (1991).

Sanchez-Villa argues that, even though an instruction on the presumption of possession was not requested by the State, an equal access defense was triggered when the State introduced evidence of Sanchez-Villa’s control of the car and noted repeatedly that Sanchez-Villa was the driver of the seized vehicle. Again, we disagree. As the Supreme Court held in State v. Johnson, 280 Ga. 511, 513 (630 SE2d 377) (2006), even if evidence presented by the State gives rise to the presumption, the trial court must instruct the jury as to the presumption of possession arising from the defendant’s control of the vehicle before it can properly instruct the jury as to the equal access defense. As the trial court did not instruct the jury on presumption of possession, an equal access instruction was unnecessary Id. We therefore affirm the trial court’s decision to deny Sanchez-Villa’s request for an instruction regarding the equal access defense.

3. Finally, Sanchez-Villa argues that the trial court erred by instructing the jury as to a conspiracy charge, over Sanchez-Villa’s objection. He claims no evidence supported the State’s request for that instruction. We disagree.

While no conspiracy was alleged in the indictment, the trial judge can instruct the jury on a conspiracy charge so long as evidence is presented to support the charge. See Myers v. State, 299 Ga. 409, 412-413 (2) (788 SE2d 451) (2016). “To authorize a requested jury instruction, there need only be slight evidence supporting the theory of the charge.” Hamm v. State, 294 Ga. 791, 794 (2) (756 SE2d 507) (2014) (citation and punctuation omitted; emphasis supplied). Thus, in this case, the State had to present at least some evidence of each element of a conspiracy charge: that Sanchez-Villa, together with one or more persons, conspired to commit a crime and that any one of them did an overt act to effect the object of the conspiracy See OCGA § 16-4-8.

Here, the trial record contains sufficient circumstantial evidence of a conspiracy Both Sanchez-Villa and the passenger were present in the vehicle during the discussion at the gas station, in the restaurant parking lot where the duffel bag was placed into the Honda, and at the traffic stop. From this, a jury could reasonably infer that the two had at least a tacit agreement to work together. See Turner v. State, 275 Ga. 343, 345 (2) (566 SE2d 676) (2002) (proof of an express agreement is not required, and presence, companionship, and conduct both before and after the alleged offense are circumstances which may give rise to the existence of a conspiracy). The jury could also find that the receipt of the duffel bag and subsequent possession of the cocaine were overt acts in furtherance of the conspiracy See Van Morgan v. State, 269 Ga. App. 715, 719 (2) (605 SE2d 120) (2004) (possession of contraband by member of conspiracy constitutes overt act in furtherance of conspiracy to possess contraband). The State has carried its minimal prima facie burden here, and we find no error in the trial court’s decision to instruct the jury regarding conspiracy.

Decided April 19, 2017

Ash S. Joshi, Matthew K. Winchester, for appellant.

Robert D. James, Jr., District Attorney, Helen V. Peters, Jennifer L. Brooks, Lenny I. Krick, Assistant District Attorneys, for appellee.

Judgment vacated and case remanded.

McFadden, P. J., and Branch, J., concur.

       During the pendency of the case, the passenger, who had also been charged, either fled the country or was deported. He was not present for trial.

       We note that the agent who presented this testimony was employed as a police officer in DeKalb County but, at the time of the investigation, was assigned to the DEA as a task force officer. As the officer explained, though he was employed by DeKalb County, he reported directly to the DEA and worked exclusively on federal investigations.

       At oral argument, both parties agreed that the notice required by Rule 404 (b) was not provided by the State. Counsel for the State indicated to the Court that the State would not argue that the DEA agent’s testimony and the recording were or could have been properly admitted as evidence of knowledge pursuant to Rule 404 (b). Therefore, we will not address any issues relating to admission of such evidence to prove knowledge pursuant to Rule 404 (b), including any argument that Sanchez-Villa received constructive notice of the State’s intention to introduce the evidence pursuant to Rule 404 (b).

       In Satterfield v. State, the defendant wrote a letter to the wife of the judge who had presided over his divorce. 339 Ga. App. at 16. The letter contained threats against the judge’s family and warned that others might be disgruntled by his rulings. Id. The defendant was arrested the same day the judge received the letter, and police officers found a gun while searching the home where he was arrested and his vehicle that day. Id. at 16-17. The defendant was charged with making terroristic threats and making threats with intent to retaliate against a judge, and at trial the prosecution introduced the gun into evidence. Id. at 17-18. This Court upheld the admission of the gun, finding that it was inextricably intertwined with the offense and noting that “at the time [the defendant] was arrested, the evidence of the gun . . . strongly suggests that [the defendant] was in the process” of acting on the threats contained in the letter. Id. at 19-20 (1) (a) (emphasis supplied).

       In Baughns v. State, the defendant was convicted of aggravated assault and burglary. 335 Ga. App. 600. Over a ten-day period, the defendant and two others committed a string of burglaries in the same area. Id. Each was accomplished with a similar tool that was used to pry into the building, and in each burglary, the defendant was the driver and later sold the stolen items to a local pawn shop. Id. At trial, the court admitted evidence from the burglaries, noting that “[a]ll of the offenses were committed in a similar way, within a two-week period and in the same area . . . and included overlapping participants.” Id. at 603 (1).

       423 Fed. Appx. 873 (11th Cir. 2011) (per curiam). In Gay, the defendant was charged in federal court with a robbery that was accomplished by grabbing a bag from a woman and running off. Id. at 874-875 (I). The trial court admitted witness testimony stating that the defendant had been part of twenty robberies over a three-year period with a robbery crew and that a recent robbery he committed prior to the charged offense involved grabbing a bag from a woman and knocking her down as he ran off. Id. at 876 (II) (A). The Eleventh Circuit held that such testimony was “inextricably intertwined with evidence concerning the charged offense.” Id.

       592 Fed. Appx. 889 (11th Cir. 2015) (per curiam). In Williams-Hill, the defendant was charged under federal law with possessing cocaine with intent to distribute. Id. at 889. The prosecution introduced evidence from two years prior showing that the defendant had been a co-conspirator with the same two participants in a drug operation. Id. at 890. In both the prior acts and in the charged offense, the defendant had performed the same role in the conspiracy, namely, intercepting and re-routing drug packages via her employment with the United States Postal Service. Id. The Eleventh Circuit found that the testimony was “necessary for the jury to understand” a witness’s identification of the defendant as the same mail carrier who participated in both schemes and that the “prior acts formed an integral and natural part of the witness’s accounts.” Id. (citation and punctuation omitted).

       373 Fed.Appx. 930 (11th Cir. 2010) (per curiam). In Lewis, the federal trial court admitted evidence of the defendant’s prior drug-related activities with his co-defendant and a cooperating witness. Id. at 931. The defendant and co-defendant were charged with cocaine conspiracy and attempted possession. Id. at 932. In addition to testifying about his involvement in the charged offenses, the witness testified about an ongoing narcotics distribution organization that he, the defendant, and the co-defendant began operating the prior year. Id. As part of that organization, the defendant routinely transported narcotics from Atlanta to Birmingham, where the three members of the conspiracy would divide up the drugs for sale. Id. The Eleventh Circuit concluded that this evidence of “prior uncharged narcotics dealings between a defendant and a cooperating witness are admissible as intrinsic evidence where the evidence about the prior crime inextricably is intertwined with the evidence of the charged drug offense.” Id. (citations omitted). The Eleventh Circuit noted that the testimony “established context and showed why [the other participants] contacted him about participating in the current cocaine deal. The prior dealings were linked closely in time as well as circumstance to the instant offenses as the three planned to split the cocaine for sale in Birmingham and Atlanta.” Id.

       889 F2d 1049 (11th Cir. 1989). In Foster, the defendant was convicted in federal court of possession of narcotics with intent to distribute and related offenses. Id. at 1050-1051 (I) (A). The defendant objected to the introduction of evidence that showed that prior to the arrest, he had been involved in a drug transaction that involved the “same mode of transportation . . . between the same cities ... to smuggle the same amount... of the same drug ... in the same manner of hiding it ... on the same person . . . only 17 days prior to his arrest for a virtually identical transaction.” Id. at 1053 (III) (A) (1) (emphasis omitted). The Eleventh Circuit upheld admission of this testimony, finding that evidence of the prior trip was inextricably intertwined with the charged offense. Id.

       As we discuss further in Division 1 (b), infra, our holding does not preclude the State from seeking to admit specific pieces of evidence at any new trial of Sanchez-Villa, provided a proper evidentiary foundation is set forth by the State and the evidence is otherwise admissible .

       In its brief, the State also suggests that admission of evidence from the DEA investigation was necessary for the jury to understand the DEA agent’s identification of Sanchez-Villa. However, the only apparent need for the DEA agent to identify Sanchez-Villa was for purposes of bringing the recording into evidence. Sanchez-Villa had already been identified in the courtroom by the DeKalb police officer who performed the traffic stop, and other than for purposes of laying foundation for the recording, Sanchez-Villa’s identity was not an issue in the case.

       The jury heard testimony from an officer from the Task Force, the DeKalb police officer who initiated the traffic stop, a GBI drug lab analyst, and the DEA agent. Sanchez-Villa called no witnesses, and his counsel offered only minimal opening and closing statements.

       At one point in the State’s closing argument, counsel for the State says of Sanchez-Villa, “That’s what those recordings told you. He knows about cocaine. He’s been doing this.”


author: DILLARD, Presiding Judge.

text:
    A17A0495.
    PONDER v. THE STATE.
    (800 SE2d 19)
   DILLARD, Presiding Judge.

In this discretionary appeal, Elliott Ponder challenges the revocation of his probation, contending that the trial court erred in revoking his probation on a basis that was not alleged in the State’s revocation petition and in ordering him to serve the revoked part of his sentence in the State Penal System. For the reasons set forth infra, we agree that the trial court erred, and thus, we reverse its order revoking Ponder’s probation and remand the case for further proceedings.

The record shows that on July 8, 2015, Ponder pleaded guilty to the offense of directing terroristic threats toward a woman with whom he formerly had a relationship, and the trial court imposed a five-year sentence to be served on probation. In early March 2016, the State obtained a warrant for Ponder’s arrest on a charge of misdemeanor stalking. Then, on March 24, 2016, the State filed a petition to revoke Ponder’s probation on the ground that he had committed a new offense of misdemeanor stalking.

On May 26, 2016, the trial court conducted a hearing on the matter, during which Ponder indicated that he would stipulate to the facts supporting the offense of misdemeanor stalking but that, under these facts, the court was not authorized to order any part of his revoked sentence to be served in a State penitentiary In response, the State informed the court that after it filed the revocation petition, it had also charged Ponder, via indictment, with aggravated stalking. Upon being so informed, the court noted that the revocation petition did not allege aggravated stalking. Nevertheless, the trial court issued an order revoking Ponder’s probation on the ground that he committed a new felony offense and requiring him to serve two years in the State Penal System.

Subsequently, Ponder filed an application for discretionary appeal with this Court, arguing that the trial court erred in revoking his probation on grounds not alleged in the revocation petition. One week later, the State filed a motion in the trial court, requesting that the court correct its error of revoking Ponder’s probation based on a new felony offense. Ponder filed a reply, arguing that his previously filed application acted as a supersedeas and, thus, deprived the trial court of jurisdiction. Thereafter, we granted Ponder’s application for discretionary appeal.

At the outset, we note that under OCGA § 42-8-34.1 (b), “[a] court may not revoke any part of any probated or suspended sentence unless the defendant admits the violation as alleged or unless the evidence produced at the revocation hearing establishes by a preponderance of the evidence the violation or violations alleged.” And generally, this Court will not interfere with a revocation “unless there has been a manifest abuse of discretion on the part of the trial court.” Nevertheless, we review questions of law de novo. With these guiding principles in mind, we turn now to Ponder’s specific claims of error.

1. Ponder first contends that the trial court erred in revoking his probation on the ground that he committed the felony of aggravated stalking when the State’s petition sought revocation solely on the ground that he committed the offense of misdemeanor stalking. We agree, and therefore, reverse the trial court’s order revoking Ponder’s probation.

This Court has previously held that “[d]ue process requires that a defendant be given written notice of the claimed violation of his probation prior to a probation revocation hearing.” Consequently, in order to revoke the probationary features of a sentence the defendant “must have notice and opportunity to be heard, the notice being sufficient to inform him not only of the time and place of the hearing and the fact that revocation is sought, but the grounds upon which it is based.” In addition, a defendant’s probation may not be revoked when “there is no evidence that the defendant violated its terms in the manner charged in the notice, even though there be evidence at the hearing that the defendant violated the terms of probation in some other manner as to which there was no notice given.” Thus, if a judgment is “based upon an offense not charged in the petition for revocation, it must be reversed.”

In this matter, as previously noted, the State’s petition to revoke Ponder’s probation sought to do so on the ground that he committed a new offense of misdemeanor stalking. But the trial court’s order provided that it was revoking Ponder’s probation on the ground that he committed a new felony offense—presumably the offense of aggravated stalking mentioned by the State during the revocation hearing. Given these particular circumstances, the trial court revoked Ponder’s probation on a basis that was not alleged in the State’s petition, and in doing so, it erred. Accordingly, we reverse the trial court’s order.

2. Ponder also contends that the trial court erred in ordering him to serve the revoked part of his sentence in the State Penal System, arguingthat, in doing so, the court violated OCGA § 17-10-1 (a) (3) (A), which provides:

Decided April 19, 2017.

Allen R. Knox, for appellant.

Richard G. Milam, District Attorney, Paul E. Hemmann, Assistant District Attorney, for appellee.

Any part of a sentence of probation revoked for a violation other than a subsequent commission of any felony, a violation of a special condition, or a misdemeanor offense involving physical violence resulting in bodily injury to an innocent victim which in the opinion of the trial court constitutes a danger to the community or a serious infraction occurring while the defendant is assigned to an alternative probation confinement facility shall be served in a probation detention center, probation boot camp, weekend lock up, or confinement in a local jail or detention facility, or other community correctional alternatives available to the court or provided by the Department of Corrections.

And here, the State presented no evidence during the probation revocation hearing that Ponder committed a new felony or a misdemeanor involving physical violence. But regardless, because we have held that the trial court committed reversible error in revoking the probation on a ground not alleged in the State’s petition, any sentence based on such error is also necessarily reversed.

For these reasons, we reverse the trial court’s order revoking Ponder’s probation and remand this case to the trial court for further proceedings consistent with this opinion.

Judgment reversed and case remanded.

Ray and Self, JJ., concur.

        See Bryson v. State, 228 Ga. App. 84, 85 (1) (491 SE2d 184) (1997) (holding that under OCGA § 5-6-35 (h), “the filing of that application acted as a supersedeas to the same extent as a notice of appeal,” and thus, “the trial court was divested of jurisdiction to enter an order altering or amending the original revocation order which defendant sought to appeal”).

        Dillard v. State, 319 Ga. App. 299, 299 (735 SE2d 297) (2012) (punctuation omitted); accord Gray v. State, 313 Ga. App. 470, 471 (722 SE2d 98) (2011); Scott v. State, 305 Ga. App. 596, 596 (699 SE2d 894) (2010).

        See Dillard, 319 Ga. App. at 299; accord White v. State, 274 Ga. App. 805, 805 (619 SE2d 333) (2005).

        Jones v. State, 314 Ga.App. 442, 443 (724 SE2d 454) (2012) (punctuation omitted); accord Dillard, 319 Ga.App. at 300; Kitchens v. State, 234 Ga.App. 785, 787 (2) (508 SE2d 176) (1998).

        Jones, 314 Ga. App. at 443 (punctuation omitted); accord Kitchens, 234 Ga.App. at 787 (2).

        Jones, 314 Ga.App. at 443 (punctuation omitted); accord Kitchens, 234 Ga.App. at 787-88 (2).

        Jones, 314 Ga.App. at 443 (punctuation omitted); accord Kitchens, 234 Ga.App. at 788 (2).

        See Jones, 314 Ga.App. at 443 (holding that defendant’s probation could not be revoked based on violation of probation condition that he register as sex offender, when revocation petition was based solely on violation of condition that he report to probation officer and permit officer to visit him elsewhere); Kitchens, 234 Ga. App. at 788 (2) (holding that the State’s petition, which alleged only the misdemeanor offense of battery, did not constitute sufficient notice to defendant so as to permit the trial court to revoke his probation on the ground of attempted rape).


author: MILLER, Presiding Judge.

text:
    A17A0590.
    WHITESELL et al. v. GEORGIA POWER COMPANY.
    (800 SE2d 370)
   MILLER, Presiding Judge.

This appeal arises from the death of Leroy Vernon Jones after he was struck by vehicles while walking along a road at night in Valdosta. The administrator of Jones’s estate and his daughter (collectively “Whitesell”) timely sued Georgia Power Company (“Georgia Power”), alleging that inadequate lighting on the road caused Jones’s death. After Whitesell voluntarily dismissed that suit, he filed an attempted renewal suit. Whitesell now appeals from the trial court’s dismissal of his attempted renewal suit. For the following reasons, we affirm.

We review a trial court’s grant of a motion to dismiss de novo. Brown v. J. H. Harvey Co., 268 Ga.App. 322 (1) (601 SE2d808) (2004).

So viewed, the parties agree that Jones died on November 14, 2011, that Whitesell filed a wrongful death lawsuit against several parties, including Georgia Power, on November 13, 2013 (the “2013 Suit”), and that Whitesell voluntarily dismissed the 2013 Suit on March 5, 2014. Whitesell did not include the pleadings related to the 2013 Suit in the record for this Court to review. Whitesell subsequently filed the instant lawsuit solely against Georgia Power on August 27, 2014 (the “2014 Suit”). The complaint filed in the 2014 Suit, however, made no reference to the 2013 Suit.

Georgia Power timely answered the 2014 Suit and moved to dismiss it. Whitesell opposed the motion to dismiss and, in response to it, amended the 2014 Suit to state: “This is a renewal action against the Defendant Georgia Power pursuant to OCGA § 9-2-61. This lawsuit was originally filed in Lowndes County, Georgia, under Civil Action #2013CV2462.” In a brief order, the trial court granted Georgia Power’s motion to dismiss.

1. In his sole enumeration of error, Whitesell contends that the trial court erred in dismissing the 2014 Suit. We find no error.

Whitesell had two years to file suit, and it is undisputed that the statute of limitation on the claim expired on November 14, 2013, the day after suit was filed. OCGA § 9-3-33. Although suit generally must be filed prior to expiration of the statute of limitation, Georgia law provides an exception for filing a renewal suit after the expiration of the statute of limitation in certain circumstances. Specifically, Whitesell’s right to take advantage of this exception and file a renewal suit is governed by OCGA § 9-2-61 and the cases interpreting it. Belcher v. Folsom, 258 Ga. App. 191 (573 SE2d 447) (2002). That statute provides:

When any case has been commenced . . . within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later . . . ; provided, however, if the dismissal or discontinuance occurs after the expiration of the applicable period of limitation, this privilege of renewal shall be exercised only once.

OCGA § 9-2-61 (a).

The 2014 Suit was filed after the expiration of the statute of limitation; consequently, for the suit to survive a motion to dismiss, Whitesell needed to show entitlement to file a renewal suit and that he followed the proper procedure to file a renewal suit.

It is well settled that,

in order to show the right to renew the suit within six months after the dismissal of a prior suit on the same cause of action, when such right is relied upon to relieve the plaintiff of the bar of the statute of limitation, it is necessary for the renewal petition to show affirmatively that the former petition was not a void suit, that it is such a valid suit as may be renewed under OCGA § 9-2-61, that it is based upon substantially the same cause of action, and that it is not a renewal of a previous action which was dismissed on its merits so that the dismissal would act as a bar to the rebringing of the petition.

(Citation and punctuation omitted; emphasis supplied.) Belcher, supra, 258 Ga.App. at 192; see also Morrison v. Bowen, 106 Ga.App. 464 (2) (127 SE2d 194) (1962) (citing Talley v. Commercial Credit Co. of Ga., 173 Ga. 828 (2) (161 SE 832) (1931)). Our Supreme Court has ruled that when a renewal action has been filed in the same court as the original action, the trial court may take judicial notice of the physical record from the original action in determining if the renewed action met the tests for renewal. Petkas v. Grizzard, 252 Ga. 104, 108 (312 SE2d 107) (1984). The trial court, however, is not required to take this judicial notice. Id.

Here, when Georgia Power moved to dismiss the complaint based, in part, on Whitesell’s failure to plead that the 2014 Suit was properly filed as a renewal action, Whitesell amended his 2014 complaint. The amended language, however, failed to cure the defect in a manner which complies with the requirements set out by case law. Instead, the amended complaint simply stated: “This is a renewal action against the Defendant Georgia Power pursuant to OCGA § 9-2-61. This lawsuit was originally filed in Lowndes County, Georgia, under Civil Action #2013CV2462.”

Pretermitting whether the amendment to the 2014 Suit related back, the amended language of the 2014 Suit does not affirmatively show that the 2013 Suit was not void, pleadings from the 2013 Suit are not in the record on appeal for this Court to review, and the record does not show that the trial court exercised its discretion to take judicial notice of the 2013 Suit. Moreover, the 2014 Suit, as amended, does not state that it is based upon substantially the same cause of action as the 2013 Suit, or that the 2013 Suit was not dismissed on its merits. Indeed, we have found language more descriptive than the amended language in the 2014 Suit to be insufficient to affirmatively show that a renewal suit is properly filed. See Morrison, supra, 106 Ga. App. at 464-465 (3) (renewal complaint was insufficient, even though it identified date original suit filed and its case number, stated that both suits were against the same defendants, and stated the date of the order dismissing the original case).

Decided April 20, 2017.

Jody D. Peterman, for appellants.

Batch & Bingham, Hugh B. McNatt, M. Anne Kaufold-Wiggins, Tyler P. Bishop, Hugh Peter son III; Melanie S. Jablonski, for appellee.

Here, Whitesell failed to affirmatively show in his pleading that the 2014 Suit was a properly filed renewal suit as required by this Court’s prior case law. Consequently, the trial court properly dismissed the 2014 Suit. To allow Whitesell’s suit to proceed would be to disregard this Court’s prior precedent interpreting OCGA § 9-2-61 (a), and that we cannot do. We acknowledge that the result of our holding is that Whitesell is permanently barred from asserting these claims against Georgia Power, and we do not take that result lightly Nonetheless, our case law is clear about what a plaintiff seeking to avoid a statute of limitation bar must plead in a renewal lawsuit. See, e.g., Belcher, supra, 258 Ga. App. at 192. If the trial court has not taken judicial notice of a prior lawsuit, then the plaintiff must affirmatively show in the complaint that the renewal lawsuit is properly filed. Id.; Petkas, supra, 252 Ga. at 108. This was not shown conclusively in this case. Belcher and similar cases provide parties with the advantageous benefit of clarity with regard to pleading requirements for filing for a renewal suit; however, when a party disregards the requirements clearly stated by this Court, the harsh result of dismissal can result. Accordingly, the trial court did not err.

2. In light of this holding, we need not address the timeliness of service of process on Georgia Power.

Judgment affirmed.

Doyle, C. J., and Reese, J., concur.