author: DOYLE, Presiding Judge. McFadden, Judge,

text:
    A13A1282.
    SMITH v. THE STATE.
    (750 SE2d 758)
   DOYLE, Presiding Judge.

Following a bench trial, Jason Smith appeals from his conviction for driving under the influence of alcohol with an unlawful blood alcohol concentration (“DUI per se”) in violation of OCGA § 40-6-391 (a) (5). Smith contends that (1) the evidence was insufficient to support the finding of guilt; (2) the printed Intoxilyzer 5000 test results were inadmissible under OCGA § 40-6-392 (a) (1) (B); (3) the State unlawfully failed to disclose the computer “source code” of the Intoxilyzer 5000; (4) the trial court erroneously denied his motion for a continuance pending the outcome of a Kentucky appeal pertaining to the source code; and (5) the trial court ruled on his motion for discharge and acquittal without making required findings. For the reasons that follow, we affirm the finding of guilt and remand for proper findings under Barker v. Wingo and Doggett v. United States.

Construed in favor of the verdict, the evidence shows that an officer was dispatched to the scene of an automobile wreck, where he encountered Smith being treated by paramedics near his wrecked car. The paramedics told the officer that they believed Smith was under the influence of alcohol, and the officer smelled an odor of alcohol about Smith when he spoke to him. The officer called the DUI unit to investigate, and a trained DUI investigator, Sergeant Eric Teague, was dispatched to the scene. Teague smelled an odor of alcohol as he spoke to Smith, who admitted that he had “several drinks,” and Teague conducted field sobriety tests and administered an alco-sensor test which returned a positive result. Teague concluded that Smith was under the influence of alcohol to the extent that he was a less safe driver and arrested him.

Teague read Smith the implied consent warning, and Smith agreed to take a breath test. Teague then transported him to a pretrial detention center where the breath test was administered on an Intoxilyzer 5000. The test registered a 0.126 result on the first sample, and the second sample of the test did not return a result.

Based on the investigation and the breath test, Smith was charged with DUI per se and driving under the influence to the extent it was less safe to do so (“DUI less safe”). During a bench trial, the State dropped the DUI less safe charge, and the trial court found Smith guilty on the DUI per se count. Smith’s motion for new trial was denied, giving rise to this appeal.

1. Smith first contends that there was insufficient evidence showing that he had a blood alcohol concentration of 0.08 grams or more at any time within three hours after driving or being in actual physical control of the car, as required by the DUI statute. We disagree.

When an appellate court reviews the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

Viewed under this standard, Smith’s argument fails.

“Driving a vehicle while intoxicated may be shown by circumstantial evidence, which must exclude every other reasonable hypothesis in order to support a conviction.” Whether a competing hypothesis is reasonable is for the factfinder because it “is the best ‘doctor of doubt.’ ” “[W]here the [factfinder] is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb that finding, unless the verdict of guilty is unsupportable as a matter of law.”

Smith first argues that the evidence failed to show that he was the driver. But the first responding officer testified that “[paramedics came out. They checked out the driver,” and the officer smelled an odor of alcohol on “the driver,” whom he identified as Smith at trial. The record does not disclose whether this description was hearsay from the paramedics or from Smith himself, nor did Smith object on that ground, so Smith has not demonstrated that this characterization of him as the driver was inadmissible. Furthermore, Teague testified that Smith volunteered to him that he was not at fault for the traffic accident because someone else had hit or sideswiped him. Smith also discussed with the officer the fact that even if he was not at fault he could be considered an impaired driver. Based on the record before us, we conclude that evidence authorized the trial court to find that no reasonable hypothesis existed other than he was the driver of the car.

Next, with respect to whether Smith was shown to have an unlawful blood alcohol concentration within three hours of driving, Teague testified on direct that the test was done within three hours of Smith’s driving. He further explained that this was based on the interval between the computer-recorded time that he was dispatched to the scene (10:45 p.m.) upon request by the initial investigating officer and the time recorded on the Intoxilyzer test (11:44 p.m.). Further, there was evidence that paramedic first responders were still treating Smith while the initial responding officer was on the scene, and that the initial officer smelled alcohol on Smith at that time, so this supports a finding that the accident scene was still “fresh” at the time Teague was dispatched, which preceded the Intoxilyzer test by only one hour. Finally, there was no evidence that Smith consumed alcohol after driving, so Smith’s test result, 0.126, following these events suggests that his blood alcohol concentration would have been even higher closer in time to his driving. Accordingly, the evidence authorized the trial court to find that the only reasonable hypothesis was that Smith’s blood alcohol concentration was above the statutory 0.08 threshold within three hours after he drove.

2. Smith next contends that the breath test results were inadmissible because they did not comply with OCGA § 40-6-392 (a) (1) (B). That Code section provides as follows:

In all cases where the arrest is made on or after January 1, 1995, and the [S]tate selects breath testing, two sequential breath samples shall be requested for the testing of alcohol concentration. For either or both of these sequential samples to be admissible in the [S]tate’s or plaintiff’s casein-chief, the readings shall not differ from each other by an alcohol concentration of greater than 0.020 grams and the lower of the two results shall be determinative for accusation and indictment purposes and administrative license suspension purposes. No more than two sequential series of a total of two adequate breath samples each shall be requested by the [S]tate; provided, however, that after an initial test in which the instrument indicates an adequate breath sample was given for analysis, any subsequent refusal to give additional breath samples shall not be construed as a refusal for purposes of suspension of a driver’s license under Code Sections 40-5-55 and 40-5-67.1. Notwithstanding the above, a refusal to give an adequate sample or samples on any subsequent breath, blood, urine, or other bodily substance test shall not affect the admissibility of the results of any prior samples. An adequate breath sample shall mean a breath sample sufficient to cause the breath-testing instrument to produce a printed alcohol concentration analysis.

Here, Smith’s first sample was adequate, and the Intoxilyzer registered a 0.126 blood alcohol concentration. Smith blew a second time but did not provide a sufficient sample, and the machine “timed out” before Smith provided an adequate sample. No further breath test was administered. Smith argues that the result of the initial sample was not admissible because the State could not show that two samples were taken and did not differ by greater than 0.020 grams alcohol concentration.

This Court has addressed a similar situation in Thrasher v. State, where the defendant’s first sample was sufficient, but his second sample was not because “Thrasher failed to blow enough air into the machine during the second attempt.” Thrasher claimed that he was unable to blow a second sample due to asthma, so his failure to provide a second sample should not have been considered a “refusal” under OCGA § 40-6-392 (a) (1) (B). This Court rejected the argument, ruling that determining the reason for the failed second sample was for the trial court, which sat as the trier of fact when determining the admissibility of evidence.

In the instant case, the officer administering the test stated that Smith “blew the first time with no problem [,] and I’m not sure if he saw the results and decided not to, but he tried it the second time. For whatever reason the machine expired.” It was for the trial court to evaluate the credibility of the witness, resolve disputed facts, and determine the reason for the failed second sample. Based on the record before us, we discern no clear error in its finding that the first sample was admissible.

3. Smith argues that the State has constructive possession of the computer source code for the Intoxilyzer 5000, and the trial court erred by admitting the test results despite the State’s failure to disclose it under OCGA § 40-6-392 (a) (4). That Code section provides that “[u]pon the request of the person who shall submit to a chemical test or tests at the request of a law enforcement officer, full information concerning the test or tests shall be made available to him or his attorney.” We disagree.

Leading up to trial, Smith sought disclosure of the computer source code by seeking witnesses from CMI, Inc., which manufactures the Intoxilyzer 5000 and which is located in Kentucky. Smith obtained a certificate of materiality in the trial court and sought a ruling in a Kentucky court allowing him to compel out-of-state witnesses to testify about the source code during his Georgia DUI prosecution. The Kentucky court issued an order denying the request.

Smith argues that the State nevertheless should have disclosed it to him because “[t]he State of Georgia has always had the power to negotiate a contract with CMI that would give it access to the source code ... [or] to switch to a different machine for which the source code is available.” Neither of these arguments addresses the case here, which is that the State, so far, has not. It is undisputed that the State lacks actual access to the source code.

Nevertheless, Smith continues to argue that CMI is essentially a state actor because it is the exclusive provider of the Intoxilyzer 5000 used for breath testing in Georgia. As support he cites federal law applicable to civil claims under 42 USC § 1983. That argument is misplaced here because the issue is the admissibility of a breath test under OCGA § 40-6-392. That Code section outlines in detail the criteria for admissibility and disclosure of scientific testing in DUI cases. Smith cites no Georgia precedent requiring disclosure of the source code in this case, and in light of this clear legislative directive on the issue, we decline to depart from the legislative scheme in this case.

4. Smith next argues that the trial court violated his rights to compulsory process, due process, fair trial, and confrontation by proceeding to trial without waiting for resolution of his appeal of the Kentucky court’s adverse order. These challenges fail for the reasons stated in Phillips v. State

5. Finally, Smith points out that the trial court failed to make explicit findings when denying his pretrial motion for discharge and acquittal for an alleged constitutional speedy trial violation. “It is imperative ... that in cases implicating a defendant’s constitutional right to speedy trial, the trial court enter findings of fact and conclusions of law consistent with Barker. [] Absent such findings, there is no exercise of discretion for this Court to review.” Accordingly, we affirm the finding of guilt in light of our rulings above, and we remand for entry of a proper order addressing the speedy trial motion pursuant to Barker v. Wingo.

Judgment affirmed in part and case remanded with direction.

Boggs, J., concurs. McFadden, J., concurs in Divisions 1, 2, 4, and 5 and in the judgment.

McFadden, Judge,

concurring in Divisions 1, 2, 4, and 5 and concurring in judgment only as to Division 3.

I concur in Divisions 1,2,4 and 5.1 concur in the judgment only as to Division 3.1 write separately to explain that this opinion does not foreclose the argument that the state may be required to disclose the source code under OCGA § 40-6-392 (a) (4), should a proper evidentiary foundation be made. As the majority observes in footnote 22, Smith has not supported his factual assertions of collusion between the state and CMI with citations to evidence in the record. But should a defendant show by the admission of evidence that CMI is a state actor, whether the state can be compelled to disclose the source code under OCGA § 40-6-392 (a) (4) is an issue for another day. Because I do not agree with all that is said in Division 3, that division is physical precedent only. See Court of Appeals Rule 33 (a) (“[A]n opinion is physical precedent only with respect to any Division of the opinion for which there is a concurrence in the judgment only or a special concurrence without a statement of agreement with all that is said.”).

Decided November 15, 2013

Reconsideration denied December 11, 2013

Head, Thomas, Webb & Willis, Gregory A. Willis, for appellant.

Carmen D. Smith, Solicitor-General, R. Leon Benham, Assistant Solicitor-General, for appellee.

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

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

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       See OCGA § 40-6-391 (a) (2).

       See OCGA § 40-6-391 (a) (5) (unlawful to drive “while . . . [t]he person’s alcohol concentration is 0.08 grams or more at any time within three hours after such driving... from alcohol consumed before such driving . . . ended”).

       (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

        State v. Hill, 178 Ga. App. 669, 670 (344 SE2d 491) (1986).

       Id. See Blevins v. State, 291 Ga. 814, 816 (733 SE2d 744) (2012) (“Whether an alternative hypothesis is reasonable is a question committed principally to the jury that heard the evidence... .”); Silvers v. State, 297 Ga. App. 362, 363 (677 SE2d 410) (2009) (“It is within the province of the trier of fact to determine whether or not a defendant’s explanation advanced at trial is reasonable or satisfactory.”) (punctuation omitted).

       (Punctuation omitted.) Blevins, 291 Ga. at 816.

       There was at least one passenger at the scene.

       Smith was not ticketed or found to have committed an infraction related to the accident itself.

       Cf. Lawson v. State, 313 Ga. App. 751, 753 (1) (722 SE2d 446) (2012); Jones v. State, 219 Ga. App. 780, 781 (2) (466 SE2d 667) (1996); Frye v. State, 189 Ga. App. 181, 181-182 (375 SE2d 101) (1988).

       Compare Norton v. State, 280 Ga. App. 303, 304 (640 SE2d 48) (2006).

       See, e.g., Stadnisky v. State, 285 Ga. App. 33, 35 (1) (645 SE2d 545) (2007).

       (Emphasis supplied.)

       292 Ga. App. 566 (666 SE2d 28) (2008).

       Id. at 567.

       See id. at 568 (1).

       See id.

       See id. See also Davis v. State, 286 Ga. App. 443, 446 (649 SE2d 568) (2007) (“[T]he fact that a defendant failed or refused to provide a second sample, as requested by the State, did not affect the admissibility of the results of the first sample.”), quoting Chamberlain v. State, 246 Ga. App. 423, 425 (541 SE2d 64) (2000).

       We reach the issues in Divisions 3 and 4 because Smith, in pretrial briefing and at argument during a pretrial hearing, specifically argued those issues in support of his motion to exclude the evidence and for a continuance. Upon hearing the argument, the trial court denied the motions and could not have done so on some alternative ground without ruling on those issues. Therefore, the issues are properly before this Court. See, e.g., Rouse v. Dept. of Natural Resources, 271 Ga. 726, 728 (1) (524 SE2d 455) (1999) (“[B]ecause [the appellant] raised numerous issues, each of which would have entitled him to prevail [in the trial court], the trial court must necessarily have rejected each of those issues to [reach its] decision. We thus conclude that the superior court’s ruling is effectively a distinct ruling on the constitutional issues and is a sufficient ruling to permit [the appellant] to raise his constitutional challenges on appeal.”) (emphasis supplied).

       Smith makes a variety of factual assertions in his appellate brief to support his argument that the State has colluded with CMI to prevent defendants from challenging the protocols and methods of the Intoxilyzer 5000. “[F]actual assertions in briefs that are unsupported by the record cannot be considered in the appellate process.” (Citation and punctuation omitted.) Parker v. State, 283 Ga. App. 714, 717 (2) (d) (642 SE2d 111) (2007).

       See, e.g., Willis v. Univ. Heath Svcs., 993 F2d 837 (11th Cir. 1993).

       Smith does cite one Georgia case, State v. Smiley, 301 Ga. App. 778 (689 SE2d 94) (2009), but that case is physical precedent only. See Court of Appeals Rule 33 (a). Furthermore, that case explicitly avoided addressing the question of whether the source code is required by law to be produced, and instead, in the absence of a transcript of the proceedings below, affirmed the trial court’s exercise of discretion by suppressing evidence in light of a bad faith discovery violation on the part of the State. See also Cronkite v. State, 293 Ga. 476, 478 (745 SE2d 591) (2013) (affirming the denial of a certificate of materiality for a source code witness in the absence of any “evidence of facts supporting the existence of a possible error in [the defendant’s] specific breath test results such as discrepancies in the operation of the Intoxilyzer 5000 machine itself”).

       324 Ga. App. 728 (751 SE2d 526) (2013). To the extent that Smith argues that the materials he sought from CMI constituted Brady material, see Brady v. Maryland, 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963), and that his failure to obtain them violated his due process rights, he has failed to demonstrate that the State possessed evidence favorable to the defense; that the prosecution suppressed the favorable evidence; and that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different. See id.; Zant v. Moon, 264 Ga. 93, 100 (3) (440 SE2d 657) (1994) (establishing factors defense must show). Therefore, that argument fails.

       The Barker test requires the court to consider: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the right [to speedy trial], and (4) the prejudice to the defendant. The fourth factor requires the court to consider three interests: (i) preventing oppressive pretrial incarceration, (ii) minimizing anxiety and concern of the defendant, and (iii) limiting the possibility that the defense will be impaired.

        Higgenbottom v. State, 288 Ga. 429, 430 (704 SE2d 786) (2011).

       Id. at 430-431.

       See id.


source: Caselaw Access Project

author: Phipps, Chief Judge.

license: Public Domain

text:
    A13A1370.
    KENERLY v. THE STATE.
    (750 SE2d 822)
   Phipps, Chief Judge.

We granted Kevin Kenerly’s application for interlocutory review of the trial court’s order denying his motion to quash a second indictment issued against him on the same charges asserted in an earlier indictment. Kenerly asserts that a pending appeal of the first indictment deprived the trial court of jurisdiction to accept return of the second indictment. He also contests the trial court’s denial of his plea in bar based on the expiration of the statutes of limitation. For the reasons that follow, we affirm.

Kenerly, a former member of the Gwinnett County Board of Commissioners (“BOC”), was first indicted on October 11, 2010. On October 22, 2010, the trial court denied Kenerly’s objection challenging the jurisdiction and authority of a Gwinnett County special purpose grand jury to return an indictment against him. On November 19, 2010, Kenerly filed a Notice of Appeal from the trial court’s October 22, 2010 order. On July 6, 2011, this court reversed the trial court’s October 22, 2010 order, and held that a special purpose grand jury is not authorized to return a criminal indictment. The state filed a motion for reconsideration, which this court denied on July 27, 2011. On August 1,2011, the state filed in this court a Notice of Intent to Apply for Certiorari (“NOI”). On August 11, 2011, the state filed in the Supreme Court of Georgia a Petition for Writ of Certiorari; the Supreme Court on March 5, 2012 denied the petition and issued its remittitur. This court issued its remittitur on March 21, 2012.

On August 4, 2011, three days after the state had filed its NOI, the state obtained from a regularly-impaneled grand jury a second indictment against Kenerly. The second indictment contained the same three charges as the charges contained in the first indictment. Both indictments alleged that Kenerly had committed bribery (Count 1) and two counts of (failure to make) disclosure of financial interest (Counts 2 and 3).

1. Kenerly’s assertion that the pending appeal of the first indictment deprived the trial court of jurisdiction to accept return of the second indictment is without merit. In the trial court, Kenerly moved to quash the second indictment, arguing that

when [he] filed his Notice of Appeal [regarding the first indictment], this [trial court] was divested or deprived of any and all jurisdiction. As such, the Second Indictment, which incidentally charged [him] with the same offenses as the first quashed indictment, against [him] is invalid as it was returned by this [trial court] at a time when it lacked jurisdiction.

“Because the issue before us is a question of law, we do not owe deference to the trial court’s ruling, and we apply the ‘plain legal error’ standard of review.”

The trial court, in its order denying Kenerly’s motion, quoted this court’s prior decisions in Porter v. State and Roberts v. State:

Not every action by a trial court is barred during the pendency of an appeal. Rather the trial court cannot execute a sentence or entertain proceedings which either require a ruling on the matters on appeal or which directly or indirectly affect such matters. [] The loss of jurisdiction is limited only to those proceedings which either require a ruling on the matters on appeal or directly or indirectly affect such matter.

The trial court found that the cases Kenerly cited in support of his motion involved post-judgment trial court actions that were “within the bounds of the issues being appealed.” The court found that that was not the case here, “as the appeal that led to the ruling [regarding the first indictment] was concerned solely with the statutory authority of a special purpose grand jury,” and the trial court’s actions in regard to the second indictment were “accepting an indictment from the regularly convened grand jury and causing the same to [be] filed by the Clerk of Court.” The trial court noted that “[h]ad the State waited for the remittitur to return from the Supreme Court, the statute of limitations would have run on Counts 2 and 3.” The trial court concluded that the return of the second indictment “was not a matter which required ruling on the matters on appeal, nor did it directly or indirectly affect such matters.”

On appeal, Kenerly continues to assert that the pending appeal of the first indictment deprived the trial court of jurisdiction to accept return of the second indictment. Recently, this court, in Brown v. State, addressed the same jurisdictional argument Kenerly raises. In Brown, this court relied on Roberts and recognized that the filing of a notice of appeal divests the trial court of jurisdiction in some matters, and held: “The real issue ... is whether the return of the [s]econd [ijndictment required the trial court to issue a ruling on the exact matter being considered in the [fjirst [ajppeal, or whether it directly or indirectly affected such matters.” In Brown, the court held that it did not, as the first appeal concerned the validity of the first indictment (whether the first indictment was read in open court as required under Georgia law), whereas the second indictment initiated a completely separate prosecution on the same charges and no contention was raised that the second indictment “suffered from the same infirmity as the [fjirst [i]ndictment.”

Indeed, in Roberts, this court rejected a defendant’s argument that a second indictment for the same offenses could not be brought against him when an appeal on the first indictment was pending on the issue of the trial court’s denial of his motion for acquittal on statutory speedy trial grounds. The state had informed the trial court that it re-indicted the defendant because the statute of limitation was not tolled while the defendant’s appeal concerning the first indictment was pending. And, as in this case, the state did not intend to try the defendant on the second indictment while the appeal concerning the first indictment was pending. We agree with the trial court that it did not lose jurisdiction to accept the return of the second indictment. The first appeal concerned the issue of whether the first indictment was returned by an authorized body (a special purpose grand jury). The second indictment initiated a completely separate prosecution on the same charges, but no contention was raised that the second indictment “suffered from the same infirmity as the [f]irst [ijndictment.” Thus, the trial court’s acceptance of the second indictment did not require a ruling on the matter on appeal or directly or indirectly affect such matter.

2. Kenerly contends that the trial court erred in denying his plea in bar because Counts 1 and 2 of the second indictment were barred by the applicable statutes of limitation, and said applicable statutes of limitation had not been tolled pursuant to OCGA § 17-3-2. We disagree.

The appellate standard of review for a plea in bar asserting a statute of limitation defense is a de novo review of the issue of laws. As this ruling involves a mixed question of fact and law, we accept the trial court’s findings on disputed facts and witness credibility unless they are clearly erroneous, but independently apply the law to the facts.

The second indictment was filed on August 4, 2011. Count 1 pertinently alleged that Kenerly committed bribery (a felony), in that he:

beginning on 6th day of March, 2007 and having twenty (20) periodic payments ending on the 3rd day of October, 2008, however the payments were unknown to the State until on or about February 4, 2010, did being an elected public official, to wit: a Gwinnett County Commissioner, directly or indirectly receive, accept or agree to receive a thing of value, to wit twenty (20) payments of fifty thousand ($50,000.00) by inducing the reasonable belief that the giving of the thing would influence his performance of an official action, to wit: the payment was suggested and accepted to induce the belief that said Kevin Kenerly would arrange for the purchase of real property by the Gwinnett County Board of Commissioners to the benefit of David Jenkins. . . .

Count 2 of the second indictment alleged that Kenerly committed the offense of (failure to make) disclosure of financial interest (a misdemeanor), in that he

on the 3rd day of May, 2005, however the financial interest was unknown to the State until on or about February 4, 2010, didbeing a local government official to wit: a Gwinnett County Commissioner, who knew or reasonably should have known he had a financial interest in a business entity, to wit: a partnership with D. G. Jenkins Development Corporation which had a property interest in real property to wit: that property described in Gwinnett County zoning case number RZC-05-019, affected by a rezoning action which that official’s local government would have a duty to consider, fail to disclose the nature and extent of such interest, in writing, to the local governing authority of the local government in which the local official is a member.

On May 14, 2012, Kenerly filed a plea in bar, asserting that the applicable statutes of limitation barred prosecution, and were not tolled by OCGA § 17-3-2 (2), because “[a]fter [Kenerly] receives supplemental and complete discovery, he will demonstrate at the evidentiary hearing that a multitude of alleged victims, persons of interest, and/or the prosecution were aware of both the alleged offense [s] and of the alleged offender no later than May 24, 2007.” At the hearing on Kenerly’s plea in bar, the parties submitted to the trial court stipulations of facts, which the trial court considered, together with argument of counsel, in entering its judgment.

(a) Stipulated facts. The parties stipulated as follows. On or prior to August 3, 2007, the state had actual knowledge of the following. Kenerly was a member of the Gwinnett County BOC, from January 1, 1995 through August 3, 2007. His primary income was earned in real estate acquisition and development. David G. Jenkins was primarily a residential land developer and homebuilder in Gwinnett County, Georgia. Van Stephens was a senior assistant county attorney for Gwinnett County from 1993 through 2007, and was promoted to chief assistant county attorney in 2007. The office of the county attorney reports directly to the BOC and is the legal advisor and representative of the county; the county attorney provides administrative legal counsel to county officers including the BOC. The office of the county attorney reviews all BOC agenda items and represents the county in litigation matters including zoning, contracts and condemnation litigation. The office of the county attorney is also responsible for representing the county in the purchase or sale of real property, including negotiation and approval of contracts. BOC meetings are public meetings, with published agendas, and meetings are broadcast live on local television and also archived for later viewing.

On or prior to August 3, 2007, the state had actual knowledge of the following. Kenerly and Jenkins had a business relationship; they were involved in real estate transactions in Gwinnett County; and those transactions came before the BOC. As a county commissioner, if Kenerly had a financial interest in a piece of property that was brought before the BOC for rezoning, he was required by law to immediately disclose the nature and extent of his interest, in writing, and disqualify himself from voting on the rezoning action. During the course of Kenerly’s 2006 election campaign, a DVD was distributed to voters in Kenerly’s district, showing Kenerly gambling in Las Vegas with developers, including Jenkins. The DVD was delivered to a number of local news outlets, which broadcast Kenerly’s gambling trip with developers; one news outlet additionally reported that Kenerly had voted favorably toward Jenkins in rezoning matters that Jenkins had brought before the BOC. At a press conference held by the state to announce an unrelated indictment, the state said that it would not, at that time, investigate Kenerly, Jenkins, and the developers. Kenerly was re-elected to his seat on the BOC in 2006, for a fourth four-year term.

(i) Grayson Highway /Silver Oaks property. On or prior to August 3, 2007, the following was a matter of public record. In August 2003, Kenerly filed a letter in Zoning Application RZR-03-036, in which D. G. Jenkins Development Corporation was the applicant; in the letter, Kenerly stated that he had a contractual, financial, and potential property interest in the real property, referred to as the “Grayson Highway” or “Silver Oaks” property, affected by that rezoning action. D. G. Jenkins Development Corporation was an entity to which Jenkins was related.

(ii) Beaver Ruin/Kingston property. On or prior to August 3,2007, the following was a matter of public record. In December 2003, Kenerly filed a letter in Zoning Application RZM-03-058, in which D. G. Jenkins Development Corporation was the applicant; in the letter, Kenerly stated that he had a contractual, financial, and potential property interest in the real property, referred to as the “Beaver Ruin” or “Kingston” property, affected by that rezoning action. That action sought to rezone portions of four tax parcels of land to single family homes. In 2005, ZoningApplicationRZC-05-019, in which D. G. Jenkins Development Corporation was the applicant, rezoned portions of four of the same tax parcels included in the 2003 rezoning application (RZM-03-058), to commercial use.

All of the property subject to both zoning applications (RZM-03-058 and RZC-05-019) was conveyed to Sydney Investments, LLC; the deeds were recorded on April 15, 2004. Deed records showed that David G. Jenkins was the manager of Sydney Investments, LLC. Kenerly did not file a letter indicating that he had a financial interest in Zoning Application RZC-05-019, which had come before the BOC for a vote.

(iii) Rabbit Hill property. On November 2, 2005, Jenkins purchased property, referred to as the “Rabbit Hill” property, from a third party for $8,922,130; a warranty deed conveying the property from the third party to D. G. Jenkins Corporation was recorded in the Gwinnett County real estate records. On April 30,2007, D. G. Jenkins Development Corporation sold the Rabbit Hill property to Sydney Investments, LLC, for $10,390,554. On May 22, 2007, at a public hearing before the BOC, Kenerly made a motion that the BOC purchase the Rabbit Hill property from Jenkins for $16,260,000. Kenerly did not recuse himself or file a letter indicating that he had a potential financial interest in the Rabbit Hill property. Stephens (then the chief assistant county attorney) confirmed that he had met with the seller to approve the price. The BOC passed the motion to purchase the Rabbit Hill property.

On or prior to August 3, 2007, Stephens had actual knowledge that the prior sale value of the Rabbit Hill property was about $8,200,000; Stephens had selected an appraiser who, in April 2007, appraised the estimated fair market value of the property at $16.4 million, and Stephens negotiated the sale of the Rabbit Hill property with Jenkins’s attorney.

(iv) Special purpose grand jury. In September 2009, the district attorney filed a petition to impanel a special purpose grand jury to investigate the acquisition of real property by the Gwinnett County BOC; the trial court granted the petition. On or before February 4, 2010, Jenkins executed an immunity agreement with the state whereby he was granted use and transactional immunity in return for his cooperation and testimony regarding his business dealings with Kenerly; the trial court granted both transactional and use immunity to Jenkins. On February 4, 2010, the state interviewed Jenkins and reviewed documents Jenkins produced during the interview.

Following the February 4, 2010 interview, the state learned the following. Kenerly and Jenkins were involved in a number of real estate transactions in Gwinnett County. Generally, Kenerly would find property, pay earnest money, and place the property under a contract. Kenerly would offer Jenkins the opportunity to develop and build on the property. Per their agreement, Jenkins would develop the property (i.e., grade, curb, pave, etc.), and the two would split the profits (50/50) from the sale of the developed property. Jenkins would then build homes on the developed lots, and keep 100 percent of the profits from the home sales.

Following the February 4, 2010 interview, the state learned the following. With regard to the Beaver Ruin/Kingston property, Kenerly had located the property, paid earnest money, and placed the property under contract contingent on rezoning. Kenerly offered Jenkins 50 percent of the profits from the sale of the residential property if he developed the residential lots. Jenkins would then receive 100 percent of profits from the sale of any homes he built. Kenerly was to receive his portion of the profits upon the sale of the lots and a final calculation. The parties memorialized this agreement in profit participation agreements executed on April 1, 2004. Later, the parties verbally agreed to amend the participation agreements to allow Kenerly to cash out his portion of the profits before the sale of lots and a final calculation. The parties agreed that Kenerly would receive $1 million as his portion of the profits, instead of 50 percent of the profits after the sale of the lots and a final calculation. Kenerly received $1 million in three payments, between April 2006 and August 2006.

Following the February 4, 2010 interview, the state also learned the following. With regard to the Grayson Highway/Silver Oaks property, Kenerly had located the property, paid earnest money, placed the property under contract contingent on rezoning, offered Jenkins the same deal he had offered with regard to the Beaver Ruin/Kingston property, and memorialized their agreement in a profit participation agreement on February 14, 2002. But in February 2007, Kenerly and Jenkins verbally agreed to amend the participation agreement regarding the Grayson Highway/Silver Oaks property and to allow Kenerly to cash out his portion of the profits before the sale of lots and a final calculation. The parties agreed that Kenerly would receive $1 million as his portion of the profits instead of the 50 percent of the profits after the sale of the lots and a final calculation. From March 6,2007 to October 3, 2008, Kenerly received 20 monthly payments of $50,000, for a total of $lmillion.

In 2008 or early 2009, Jenkins stopped making payments related to the Grayson Highway/Silver Oaks property. The Grayson Highway/ Silver Oaks property never made a profit. Jenkins testified that the $1 million payment to Kenerly for the Grayson Highway/Silver Oaks property was unrelated to the Rabbit Hill property.

(b) Bribery. Under OCGA § 16-10-2 (a) (2), an elected or appointed public official commits the offense of bribery when he “directly or indirectly solicits, receives, accepts, or agrees to receive a thing of value by inducing the reasonable belief that the giving of the thing will influence his or her performance or failure to perform any official action.”

As to the bribery count, OCGA § 17-3-1 (c) pertinently provides that prosecution for this offense “shall be commenced within four years after the commission of the crime....” In the present case, the state alleged in the August 4, 2011 indictment that the crime was committed beginning March 6, 2007, which the stipulated facts show was when Kenerly received the first of the twenty installment payments totaling $1 million. Based on this date, the bribery charge fell outside the four-year statute of limitation. But OCGA § 17-3-2 (2) provides that “[t]he period within which a prosecution must be commenced ... does not include any period in which ... the crime is unknown[.]” The state alleged that the crime was unknown to it until February 2010, when it interviewed Jenkins and reviewed documents he produced. The trial court agreed.

(i) Kenerly contends that “[t]he facts the State alleges it discovered on February 4,2010, do not serve to toll the statute of limitation.” He asserts that “[t]he only new fact that was uncovered during the course of the grand jury investigation was the specific amount of money involved in the legitimate business transaction between [him] and [Jenkins].” This assertion is clearly not supportedby the record.

After the state, on February 4, 2010, interviewed Jenkins and reviewed documents he produced, the state learned that (1) in 2007 Jenkins and Kenerly verbally altered the profit-splitting terms of a five-year-old written agreement they had executed with regard to certain (Grayson Highway/Silver Oaks) property; (2) under the new terms, Kenerly would be paid early and receive $1 million for his share of “profits” from the development of the property; (3) the property never made a profit; (4) Jenkins stopped making payment on the property about the same time or soon after he had made the last $50,000 payment to Kenerly; and (5) Jenkins’s and Kenerly’s oral agreement with regard to the property was made just three months before Kenerly made a motion before the BOC that it purchase from Jenkins other (Rabbit Hill) property at over $7 million more than what Jenkins had paid for this other (Rabbit Hill) property just two years earlier.

Kenerly claims that, in any event, “there is not a single fact in existence that would support a charge of bribery,” as Jenkins “swore under oath that the million dollar payment to [Kenerly] for Silver Oaks/Grayson Hwy, was not a bribe.” The existence and execution of an oral agreement for Jenkins to pay Kenerly money, in relation to Kenerly’s motion before the BOC to Jenkins’s benefit, is what the state alleged in the indictment was a violation of the bribery statute. Arational trier of fact could find from the stipulated facts that despite Jenkins’s testimony that his payment to Kenerly concerning the Grayson Hill/Silver Oaks property was unrelated to the Rabbit Hill property (in essence, that the money was not given to influence Kenerly’s official action before the BOC regarding the Rabbit Hill property), Kenerly in fact received, accepted, or agreed to receive $1 million to arrange for the purchase of the Rabbit Hill property to Jenkins’s benefit. And since the existence, execution, and timing of the agreement were unknown to the state before February 2010, the trial court properly ruled that the statute of limitation for bribery was tolled until February 2010.

(ii) Kenerly contends that the statute of limitation was not tolled because “any knowledge out in the public domain via public records, public meetings, news broadcasts and the like, was imputed to the State for statute of limitation purposes,” including “knowledge of County Attorney Stephens.” According to Kenerly, Stephens knew of the alleged crime because Stephens had negotiated the sale of the Rabbit Hill property from Jenkins to the county, and Stephens knew that Kenerly had moved the BOC to purchase the Rabbit Hill property for substantially more than what Jenkins had paid for the property just two years earlier. But even assuming knowledge of Stephens (who reported directly to the BOC and provided legal counsel to county officers including the BOC) was imputable to the state, Kenerly fails to show either that Stephens knew or that information in the public domain revealed that an oral profit-splitting agreement existed between Jenkins and Kenerly that was beneficial to Kenerly and was made three months before Kenerly led the BOC to a vote beneficial to Jenkins, involving (the Rabbit Hill) property in which Kenerly had failed to disclose a financial interest. OCGA § 17-3-2 requires that the state have actual knowledge of a crime; “[t]he tolling period is not extinguished when the injured party should have known” of the crime. That “actual knowledge” standard was not shown to have been met before February 2010.

(iii) Kenerly contends that “actual knowledge” under OCGA § 17-3-2 (2) means “actual knowledge of a criminal allegation.” Kenerly points to the Las Vegas DVD that had been disseminated, Kenerly’s personal association with Jenkins, public records of the land transactions, and the reporting by local media outlets of allegations of corruption by Kenerly. But the cases upon which Kenerly relies do not lead this court to interpret OCGA § 17-3-2 (2) as requiring actual knowledge of a criminal allegation, as opposed to actual knowledge of a criminal act, in circumstances where the state alleges it did not know that a crime had been committed.

Royal v. State, upon which Kenerly relies, supports a conclusion contrary to Kenerly’s position. In that case this court, affirming the trial court’s denial of a plea in bar asserting that the statute of limitation had expired because the state had actual knowledge of the crimes more than four years before indicting the defendant, held that the statute of limitation did not begin to run on the date that a tipster had reported an act of insurance fraud to an insurer, but rather on the date that an investigator first substantiated the tipster’s allegations. Neither does Jenkins v. State support Kenerly’s position. In Jenkins, the question was not when the victim (the state) acquired actual knowledge of the specific acts constituting the crimes, but rather when it had knowledge of the perpetrator’s identity. In any event, the Supreme Court of Georgia affirmed the trial court’s grant of the defendant’s plea in bar on the basis that the statute of limitation had expired and was not tolled for nonmurder charges; less than a year after the crimes were committed, the state had actual knowledge of the defendant’s identity as a suspect—DNA test results identifying the defendant’s DNA on a cigarette butt — but the frequency of the DNA evidence was low, and the district attorney waited until an additional review of existing evidence more firmly identified the defendant before indicting him more than seven years later. And in State v. Robins, this court held that a lack of knowledge of the illegality of a defendant’s act was not sufficient to toll the limitation period; the court explained that “there must be lack of knowledge of the act itself.” Here, neither the state nor one whose duty it was to report the crime claimed to not have known what acts constituted the offense of bribery.

Kenerly points out also the district attorney’s delay in investigating the allegations of corruption. This court, however, has explained, “under OCGA § 17-3-2 (2), the statute of limitation does not run while the crime or the person who committed the crime is ‘unknown’ — it does not say ‘and could not have been discovered through the exercise of reasonable diligence.’ ”

Based on the foregoing, the trial court did not err in ruling that the tolling exception to the statute of limitation applied to the bribery charge in the 2011 indictment, and that the prosecution for bribery was commenced less than four years after the state discovered the crime in February 2010. Accordingly, the trial court did not err by denying Kenerly’s plea in bar on this basis.

(c) Disclosure of financial interest. Under OCGA § 36-67A-2,

[a] local government official who knew or reasonably should have known he or she:... (2) Has a financial interest in any business entity which has a property interest in any real property affected by a rezoning action which that official’s local government will have the duty to consider . . . shall immediately disclose the nature and extent of such interest, in writing, to the governing authority of the local government in which the local government official is a member.

As to the disclosure of financial interest count, OCGA § 36-67A-4 provides that “[a]ny person knowingly failing to comply with the requirements of this chapter or violating the provisions of this chapter shall be guilty of a misdemeanor.” OCGA § 17-3-1 (e) provides that “[p]rosecution for misdemeanors shall be commenced within two years after the commission of the crime.” In the present case, the state alleged in the August 4,2011 indictment that the crime was committed on May 3, 2005, and the stipulated facts showed that after 2003 Kenerly did not file a letter indicating that he had a financial interest in the 2005 rezoning of the Beaver Ruin/Kingston property. The disclosure of financial interest charge clearly fell outside the two-year statute of limitation. But OCGA § 17-3-2 (2) provides that “[t]he period within which a prosecution must be commenced ... does not include any period in which ... the crime is unknown[.]” The state alleged that the crime was unknown to it until February 2010, when it interviewed Jenkins and reviewed documents he produced. The trial court agreed.

Kenerly contends that the statute of limitation was not tolled pursuant to OCGA § 17-3-2 because “the fact that [Stephens] received Kenerly’s letter disclosing a financial interest in the Beaver Ruin property in 2003, and then did not receive a letter disclosing a financial interest in the same property in 2005, was... imputed to the State.” Kenerly claims also that when he left the room during the BOC vote on the 2005 zoning application, he was “signaling that he had a financial interest,” and because Stephens was present for the vote and the vote was “broadcast on public television and archived for the public to review,” the state had in 2005 actual knowledge of the commission of the alleged crime.

Decided November 22, 2013

Reconsideration denied December 11, 2013

Anderson, Tate & Carr, Trinity M. Hundredmark, Patrick J. McDonough, for appellant.

Daniel J. Porter, District Attorney, Trade H. Cason, Assistant District Attorney, for appellee.

Even assuming Stephens’s knowledge was imputable to the state, the record does not show that Kenerly disclosed in the 2003 letter the extent of his interest in the property, as required by OCGA § 36-67A-2. Therefore, Stephens could not have known that Kenerly’s reported interest in property in 2003 concerned the same land at issue in the 2005 zoning application. And Kenerly provides no authority which supports his position that his mere absence from the vote on the 2005 zoning application imputed to persons observing the vote, actual knowledge that he had a financial interest in the subject property.

Based on the foregoing, the trial court did not err in ruling that the tolling exception to the statute of limitation applied to the failure to disclose financial interest charge in the 2011 indictment, and that the prosecution for failure to disclose financial interest was commenced less than two years after the state discovered the crime. Accordingly, the trial court did not err by denying Kenerly’s plea in bar on this basis.

Judgment affirmed.

Ellington, P. J., and Branch, J., concur in judgment only.

       See Kenerly v. State, 311 Ga. App. 190 (715 SE2d 688) (2011).

       See OCGA § 16-10-2.

       See OCGA § 36-67A-2.

        State v. Bachan, 321 Ga. App. 712 (742 SE2d 526) (2013) (citations and punctuation omitted).

       308 Ga. App. 121 (706 SE2d 620) (2011) (pendency of appeal in the Supreme Court of Georgia did not deprive trial court of jurisdiction to issue order granting an out-of-time appeal).

         279 Ga. App. 434 (631 SE2d 480) (2006), overruled on other grounds, DeSouza v. State, 285 Ga. App. 201, 202, n. 2 (645 SE2d 684) (2007).

        Porter, supra at 122 (1).

        Roberts, supra at 437 (1).

       Immediately after the return of the second indictment, the state’s counsel informed Kenerly’s counsel that no action would he taken on the second indictment until rulings were entered upon the state’s motion for reconsideration in the Court of Appeals and subsequent Petition for Certiorari in connection with the first indictment.

       322 Ga. App. 446 (745 SE2d 694) (2013).

       Id. at 447-451 (1).

       Supra.

        Brown, supra at 448 (1).

       Id. at 449 (1).

       Id.

        Roberts, supra at 435-438 (1).

       Id. at 435.

       Id.

        Kenerly, supra.

        Brown, supra.

       See generally Brotara, supra; Roberts, supra at 437 (1) (“such loss of jurisdiction is limited to only those proceedings which either require a ruling on the matters on appeal or directly or indirectly affect such matters”) (citation and punctuation omitted).

       OCGA § 17-3-2 provides: “The period within which a prosecution must be commenced... does not include any period in which: ... (2) The person committing the crime is unknown or the crime is unknownf.j”

        State v. Campbell, 295 Ga. App. 856 (673 SE2d 336) (2009) (footnote omitted).

       See OCGA §§ 16-10-2; 16-1-3 (5).

       See OCGA §§ 36-67A-2; 36-67A-4.

       OCGA § 17-3-1 (c) pertinently provides that prosecution for felonies other than murders, crimes punishable by death or life imprisonment, or certain offenses when DNA evidence is used to establish the identity of the accused, shall be commenced within four years after the commission of the crime.

       Contrary to Kenerly’s assertion, the state relies not upon allegations, but on facts stipulated by both parties.

       See generally Beard v. State, 300 Ga. App. 146, 146-147 (684 SE2d 306) (2009) (“To warrant a conviction on circumstantial evidence, the proved facts need exclude only reasonable hypotheses — not bare possibilities.... And questions of reasonableness are generally decided by the jury.”) (citation and punctuation omitted); Nave v. State, 166 Ga. App. 466, 467 (2) (304 SE2d 491) (1983) (crime of bribery proved despite defendant’s denial that he took money to influence the discharge of a legal or public duty); Slaughter v. State, 99 Ga. App. 239, 242 (1), (2) (108 SE2d 161) (1959) (“the receiver of a bribe might be convicted although the person who paid the money might have been in fact ignorant that the receiver, in order to do what was requested of him, would have to act in such official capacity as to commit the crime of bribery under the statute”).

       See OCGA § 17-3-2 (2).

       Compare Lowman v. State, 204 Ga. App. 655, 656 (420 SE2d 94) (1992) (knowledge of probate judge, as a person with an interest in the offense (perjury), was imputed to the state for purposes of OCGA § 17-3-2 (2)); Duncan v. State, 193 Ga. App. 793-794 (389 SE2d 365) (1989) (“The knowledge placed at issue by OCGA § 17-3-2 (2) is the knowledge of the State, which knowledge includes that imputed to the State through the knowledge not only of the prosecution, but also includes the knowledge of someone interested in the prosecution, or injured by the offense. Thus, the knowledge of a victim of a crime or of a law enforcement officer, is imputed to the State.”) (citations omitted); Holloman v. State, 133 Ga. App. 275, 278 (4) (211 SE2d 312) (1974) (knowledge imputed to the state when “offense was known to one whose special duty it was to report it”; the sheriff is the county’s chief law enforcement officer and his knowledge is imputable to the state).

        Campbell, supra at 858; see Beasley v. State, 244 Ga. App. 836, 837-838 (536 SE2d 825) (2000). Compare State v. Robins, 296 Ga. App. 437, 439-440 (1) (674 SE2d 615) (2009) (affirming grant of plea in bar to defendants, where evidence showed that a defendant’s supervisor was aware of defendant’s acts over four years before defendants were indicted, but claims he did not know acts were illegal; court noted that “lack of knowledge of the illegality of the act was not sufficient to toll the limitation period, but rather there must be lack of knowledge of the act itself”) (citation omitted).

       3 14 Ga. App. 20 (723 SE2d 118) (2012).

       Id. at 23 (1).

       278 Ga. 598 (604 SE2d 789) (2004).

       Id. at 601-602 (1) (A).

       Id.; see State v. Boykin, 320 Ga. App. 9, 11 (3) (739 SE2d 16) (2013).

       Supra.

       Id. at 439-440 (1) (citation omitted); see Holloman, supra at 280 (6).

        Campbell, supra (tolling period ended when employer actually learned of crime, not when employer could have discovered crime through the exercise of reasonable diligence) (punctuation and footnote omitted).

       See id.; Beasley, supra at 838-840.

       See generally Royal, supra (statute of limitation did not begin to run on the date that a tipster had reported a crime, hut rather on the date that an investigator first substantiated the tipster’s allegations).

       See Campbell, supra; Beasley, supra.


author: McFadden, Judge.

text:
    A13A1385.
    COOKS v. THE STATE.
    (750 SE2d 765)
   McFadden, Judge.

After a jury trial, Antonio Cooks was convicted of robbery. He appeals, claiming, among other things, that the trial court erred in overruling his general demurrer to the robbery indictment. Because the indictment is defective in that it does not allege the essential element of robbery that Cooks took the “property of another,” and he could admit all the allegations in the indictment and not be guilty of a crime, we reverse.

1. General demurrer.

The one-count indictment charged Cooks with robbery in that he “did, with the intent to commit theft, take lawful U. S. Currency, from the immediate presence of Tom Pool, by use of force, contrary to the laws of [this] State, the good order, peace and dignity thereof.” Cooks filed a general demurrer to the indictment, asserting that it failed to charge him with a crime and he could thus admit to the allegations and not be guilty of a crime because there was no allegation that he had taken the property of another. The trial court overruled the general demurrer, finding that it was untimely because it was filed after the parties had given opening statements and that the indictment was sufficient because it gave Cooks notice of the offense alleged.

As the state concedes in its appellate brief, the trial court erred in finding that the general demurrer was untimely because “a general demurrer, in which a defendant contends that the charging instrument fails altogether to charge him with a crime, may be raised at any time before the trial court.” Bryant v. State, 320 Ga. App. 838, 841 (3) (740 SE2d 772) (2013) (citation omitted). See also Kain v. State, 287 Ga. App. 45, 48 (2) (650 SE2d 749) (2007) (general demurrer brought by defense counsel at trial was timely); Ross v. State, 235 Ga. App. 7, 8 (508 SE2d 424) (1998) (general demurrer brought at close of evidence was timely). Thus, Cooks’ filing of the general demurrer after opening statements was timely.

“A general demurrer challenges the sufficiency of the substance of an indictment. The true test of the sufficiency of an indictment to withstand a general demurrer is found in the answer to the question: Can the defendant admit the charge as made and still be innocent? If he can, the indictment is fatally defective.” Brown v. State, 322 Ga. App. 446, 453 (3) (745 SE2d 699) (2013) (citation omitted). In that regard,

a criminal indictment which does not recite language from the Code must allege every essential element of the crime charged. Furthermore, each count set forth in an indictment must be wholly complete within itself, and plainly, fully, and distinctly set out the crime charged in that count. Unless every essential element of a crime is stated in an indictment, it is impossible to ensure that the grand jury found probable cause to indict. Consequently, there can be no conviction for the commission of a crime an essential element of which is not charged in the indictment. If an accused individual can admit to all of the allegations in an indictment and still be not guilty of a crime, then the indictment generally is insufficient and must be declared void.

Smith v. Hardrick, 266 Ga. 54, 54-55 (1) (464 SE2d 198) (1995) (citations and punctuation omitted). See also Borders v. State, 270 Ga. 804, 806 (1) (514 SE2d 14) (1999) (indictment void if it fails to charge a necessary element of the crime).

OCGA § 16-8-40 (a) (1) provides that “[a] person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another . . . [b]y use of force[.]” (Emphasis supplied.) The term “property of another” is defined as “property in which any person other than the accused has an interest but does not include property belonging to the spouse of an accused or to them jointly.” OCGA § 16-8-1 (3). “Consequently, in [a robbery by force] case, the State must allege and prove that the defendant took property of a person or persons other than the accused.” Collis v. State, 252 Ga. App. 659, 662 (2) (556 SE2d 221) (2001) (involving armed robbery, which also includes “property of another” element).

In this case, the front page of the indictment noted the general robbery Code section. However, it did not cite the specific robbery-by-force subsection, and the substantive body of the indictment did not cite any Code section. Regardless, “an indictment’s description of the offense charged prevails over any Code section cited.” Henley v. State, 317 Ga. App. 776, 780 (2), n. 8 (732 SE2d 836) (2012) (citation and punctuation omitted). See also Morris v. State, 310 Ga. App. 126, 131 (3) (712 SE2d 130) (2011) (description of the crime in the indictment, rather than the Code section under which it appears, furnishes the criterion for determining whether the indictment is good). Although the description of the crime charged in the instant indictment tracked much of the language of the robbery-by-force Code section, it failed to allege the necessary element that Cooks had “take[n] property of another.”

This case is materially different from those in which we have upheld robbery indictments against claims that they did not include the essential “property of another” element. For instance, in Collis, supra, the indictment charged the defendants with taking “a United Parcel Service vehicle, from the immediate presence of Robby Hales.” Id. That language “constituted an allegation that the vehicle belonged to UPS and sufficiently put the defendants on notice that the property taken was that of another.” Id. And in Thomas v. State, 314 Ga. App. 124, 126 (2) (723 SE2d 5) (2012), the challenged counts of the indictment clearly alleged that the property taken from the victims “was the property of the respective businesses where the robberies occurred.” Both of those cases turned on the proposition that robbery is a crime against possession and is not affected by concepts of ownership, so it does not matter exactly whose property was taken. Thomas, supra; Collis, supra. Thus, in those cases, even though the victims from whose presence the property was taken were not the owners of the property in question, the indictments were not defective because they properly alleged that the property taken was that of another.

But unlike the indictments in Collis and Thomas, the indictment here contains no such language constituting an allegation that the property in question was that of another, i.e., that it was property in which some person other than Cooks had an interest. Accordingly, Cooks could admit all the allegations of the indictment and still not be guilty of the robbery charged since there would be no admission that he took the property of another. Likewise, he would not be guilty of a lesser crime of theft by taking, which also includes the essential element that the accused has taken the “property of another.” OCGA § 16-8-2. Compare generally State v. Wilson, 318 Ga. App. 88, 94-95 (1) (c) (i) (732 SE2d 330) (2012) (indictment purportedly charging aggravated assault on a peace officer was sufficient to withstand general demurrer because it alleged facts constituting lesser included offense of aggravated assault). And despite the allegation of use of force, Cooks could admit to the allegations in the indictment and still not be guilty of simple battery or assault as those crimes require various essential elements that clearly are not included in the indictment here. See OCGA §§ 16-5-20; 16-5-23.

Because the indictment in this case fails to allege the necessary element that Cooks took the property of another, and he could thus admit the facts alleged and not be guilty of a crime, we are constrained to find that the indictment is void, that the trial court erred in overruling the general demurrer and that such ruling must be reversed. See Stinson v. State, 279 Ga. 177, 179 (2) (611 SE2d 52) (2005) (if accused can admit to the allegations and still not be guilty of a crime, the indictment is insufficient and the conviction void); Spence v. State, 263 Ga. App. 25, 28 (587 SE2d 183) (2003) (reversing trial court’s overruling of general demurrer where accusation did not contain all essential elements of offense charged). In doing so, we reiterate that

Decided November 18, 2013

Reconsideration denied December ll, 2013.

Joseph L. Mitchell, Jon W. McClure, for appellant.

J. David Miller, District Attorney, BradfieldM. Shealy, Jessica W. Clark, Assistant District Attorneys, for appellee.

we strongly encourage the State to make every reasonable effort to avoid the problems at issue here by ensuring that each count of every indictment meets some or, preferably, all of the following criteria: includes all of the essential elements of the crime sought to be charged, especially the applicable mens rea; cites to a specific criminal statute and, when appropriate, the relevant subsection; tracks the language of a specific criminal statute; avoids surplus language; and accurately provides names, dates, and other facts, especially when they are material to the charged crime.

Wilson, supra at 98 (3) (citations omitted).

2. Remaining enumerations.

Because of our holding in Division 1, we do not reach Cooks’ remaining enumerations of error.

Judgment reversed.

Doyle, R J., concurs. Boggs, J., concurs in judgment only.


author: Ray, Judge. MILLER, Judge, BARNES, Presiding Judge,

text:
    A13A1399.
    THE STATE v. HUGHES.
    (750 SE2d 789)
   Ray, Judge.

The State appeals from the trial court’s grant of Jack Hughes’s motion to suppress the results of a blood test, contending that the trial court erred in concluding that the arresting officers lacked probable cause to request the blood test under the implied consent statute. For the following reasons, we reverse.

Upon review of a trial court’s grant or denial of a motion to suppress, we apply the clearly erroneous standard where the evidence is in dispute or the credibility of a witness is challenged, and

[the trial court’s] findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

(Citation and footnote omitted.) Miller v. State, 288 Ga. 286, 286 (1) (702 SE2d 888) (2010). However, “where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” (Footnote omitted.) State v. Underwood, 283 Ga. 498, 500 (661 SE2d 529) (2008), quoting Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994); State v. Preston, 293 Ga. App. 94, 96 (666 SE2d 417) (2008), quoting Vansant, supra.

Here, the evidence adduced at the hearing on the motion to suppress shows that, on the morning of June 27, 2011, officers from the Columbus Police Department were dispatched to a motor vehicle accident. Hughes, then 17 years old, had driven through a red light and struck another driver before ultimately hitting a utility pole. The airbag in Hughes’s vehicle had deployed during the accident, filling the cabin of his pickup truck with a white powder. The driver of the other vehicle died as a result of injuries sustained in the collision.

After the accident, one of the first responding officers, Officer Allen, saw Hughes standing off to the side of his vehicle and made contact with Hughes to determine if he was okay. Hughes said that he was okay, and he told Officer Allen that he believed he had fallen asleep while driving. Officer Allen observed that Hughes was unsteady on his feet, that his eyes were red and glassy with dilated pupils, and that he was slow and evasive in his responses to questioning.

Shortly thereafter, Corporal T. R. Greene arrived at the scene and took over the investigation. While speaking with Hughes, Corporal Greene also observed that Hughes was slow to answer questions, that he was unsteady on his feet, and that he seemed to have trouble staying awake. Hughes stated that he had had a long day before the accident, which started out with an early morning practice and a baseball game that ended at 11:00 a.m., followed by work from 12:00 p.m. to 4:00 p.m. Hughes further stated that he took a short nap after work and then went to a party with friends from about 9:00 p.m. to 3:00 a.m., then slept in his vehicle from about 3:00 a.m. to 5:00 a.m. Hughes admitted that there was alcohol present at the party, but he denied consuming any. When questioned about what had happened in the accident, Hughes stated that he had hit a telephone pole; he was unaware that he had struck another vehicle.

At this point, Corporal Greene did not believe that Hughes was under the influence, and Hughes was not asked to perform any field sobriety tests. Corporal Greene arrested Hughes for a red-light violation and homicide by vehicle. However, after providing Miranda warnings to Hughes, Corporal Greene and another officer performed a search of his person incident to arrest. During this search, the officers found socks in Hughes’s pockets that contained several pills. There was no evidence that Hughes was asked to identify the pills or asked whether he had recently ingested any of them. Corporal Greene suspected that some of the pills were Ecstasy and, when taking into consideration his earlier observations of Hughes’s demeanor and appearance, he believed that Hughes may have been under the influence of drugs. Corporal Greene then read the implied consent warning to Hughes, and Hughes submitted to a State-administered blood test.

Hughes filed a motion to suppress the results of the blood test, arguing that the officers lacked probable cause to believe that he was driving under the influence of drugs. At the hearing on the motion to suppress, the only witnesses who testified were the officers who responded to the scene of the accident and interacted with Hughes. Following the presentation of evidence, the trial court granted Hughes’s motion to suppress, finding that the officers did not have probable cause to invoke the implied consent statute.

On appeal, the State contends that the trial court erred in granting the motion. We agree.

In determining whether the evidence is sufficient to invoke the implied consent statute, the relevant inquiry is whether an officer had “reasonable grounds” to believe that a defendant had been driving a motor vehicle in violation of OCGA § 40-6-391. See OCGA § 40-5-55 (a). “[W]here the facts relevant to a suppression motion are undisputed, the proper standard of review on appeal is de novo, not clearly erroneous.” (Footnote omitted.) Underwood, supra.

In State v. Gray, 267 Ga. App. 753 (600 SE2d 626) (2004), the case relied upon by the trial court in granting Hughes’s motion to suppress, we applied the clearly erroneous standard to affirm the trial court’s grant of a motion to suppress the results of the defendant’s breath test where the trial court found that the arresting officer lacked credibility and that the defendant’s outward manifestations were the result of the automobile accident, rather than impairment caused by intoxication. Id. at 754-755 (1). In that case, the trial court found that the defendant had adequately demonstrated that another driver had caused the accident, and that the mere presence of alcohol in the defendant’s body did not warrant a finding of probable cause to arrest the defendant for driving under the influence because there was no evidence to indicate that the defendant was under the influence of alcohol to a degree which rendered her incapable of driving safely. Id. at 756 (2). The facts in Gray are distinguishable from those presented in this case.

Here, the fact that Hughes had drugs in his possession was not the only credible evidence that he may have been driving while impaired. The undisputed evidence also showed that Hughes was incapable of driving his vehicle safely and that he exhibited manifestations consistent with being impaired. The fact that drugs were found in his possession put into context his disjointed demeanor, and the combination of these facts provided the officers with a reasonable basis for believing that Hughes was driving under the influence. Although the officers did not perform any field sobriety testing, based upon the totality of the circumstances the officers reasonably believed that drugs may have been involved, and they asked Hughes to submit to a blood test.

Although the trial judge, as the trier of fact on the motion to suppress, was not obligated to believe the officers’ uncontradicted testimony regarding their observations of Hughes’s demeanor and appearance, the trial court’s order neither made any specific findings about the officers’ credibility nor rejected the officers’ testimony as to any of the above facts. Rather, the trial court found that Hughes’s manifestations “were consistent with the after-effects of an automobile collision where an airbag deployedf.]” Hughes contends that the trial court’s findings should be reviewed under the clearly erroneous standard, which would mean that the ruling of the trial court must be upheld if there is any evidence to support it. See Gray, supra. We disagree. The trial court found that the facts were entirely consistent with everything to which the officers testified, except for their subjective belief that probable cause existed to request a blood test. This latter point represents not a fact of the event, but rather a legal conclusion reached by the trial court upon its consideration of the undisputed facts. As the facts relevant to the motion to suppress are undisputed, the proper standard of review is de novo. See Underwood, supra; Vansant, supra; and Preston, supra.

The proper inquiry is whether the investigating officers, in light of all the facts and circumstances confronting them on the scene at that time, had a reasonable and objective basis for suspecting that Hughes was under the influence of a drug that contributed to the collision. See Preston, supra at 97, n. 13. The fact that there may be other explanations for Hughes’s unusual behavior and manifestations does not establish that the officers’ beliefs were unreasonable or that they lacked credibility. It is well settled that

[t]he facts necessary to establish probable cause for arrest are much less than those required to prove guilt beyond a reasonable doubt at trial; the test merely requires a probability — less than a certainty but more than a mere suspicion or possibility. Further, probable cause need not be defined in relation to any one particular element, but may exist because of the totality of circumstances surrounding a transaction.

(Punctuation and footnotes omitted.) Armour v. State, 315 Ga. App. 745, 746 (1) (728 SE2d 270) (2012). The trial court’s “finding” that Hughes’s physical manifestations were consistent with the aftereffects of the accident is not a fact that is central to whether the police officers had probable cause to ask for a drug test, but rather represents the trial court’s conclusion as to whether it could be proven that Hughes was in fact impaired. Ultimately, that decision is what the jury should be empaneled to decide in this case. The trial court’s inquiry should be limited simply to whether the police officers had reasonable grounds to believe that drugs were likely involved.

Here, the undisputed evidence shows that the officers had a reasonable and objective basis for believing that Hughes had been driving in violation of OCGA § 40-6-391. Hughes ran a red light and struck another vehicle, killing the other driver. He exhibited several signs of impairment, was wholly unaware of the collision that he had caused, had slept in his vehicle for a while after leaving a party where alcohol had been served, and, most importantly, had drugs in his possession. See Martin v. State, 214 Ga. App. 614, 615-616 (1) (448 SE2d 471) (1994) (circumstances giving officer probable cause to arrest for driving under the influence of drugs or alcohol included defendant’s dilated eyes and inability to explain how the accident occurred); Slayton v. State, 281 Ga. App. 650, 652 (1) (637 SE2d 67) (2006) (observations about suspect’s physical appearance, demeanor, behavior, and manner of driving can support a finding of impairment). Furthermore, the officers’ failure to conduct field sobriety testing in this case does not demand a finding that the officers lacked probable cause to request a blood test. “What matters is what the [officers] observed and reasonably believed.” Brown v. State, 302 Ga. App. 272, 274 (1) (690 SE2d 907) (2010) (evidence was sufficient to establish probable cause to arrest for driving under the influence, even in the absence of field sobriety testing, where defendant otherwise exhibited signs of intoxication and marijuana was found in defendant’s possession).

Under the totality of the circumstances, when viewed objectively from the standpoint of the officers at the time, we find that the facts were sufficient to give the officers probable cause upon which to request a blood test under the implied consent statute, regardless of whether a jury might later disagree with their suspicions as to why the collision occurred. See, e.g., Brown, supra, 302 Ga. App. at 273-274 (1); Preston, supra at 95-97. Accordingly, the trial court’s ruling must be reversed.

Judgment reversed.

Andrews, P. J., Dillard and McMillian, JJ., concur. Barnes, P. J., Doyle, P. J., and Miller, J., dissent.

MILLER, Judge,

dissenting.

I respectfully dissent because the majority has failed to apply the proper standard of review. In this case, after hearing all of the evidence and assessing the credibility of the police officers who testified at the suppression hearing, the court ruled that the officers lacked probable cause to believe Hughes was driving under the influence of drugs. In reversing the trial court’s conclusion, the majority ignores well-established rules of appellate review andimproperly substitutes its judgment for that of the trial court.

The Supreme Court of Georgia has recently reiterated the three fundamental principles that must be followed when reviewing a trial court’s ruling on a motion to suppress. See Brown v. State, 293 Ga. 787, 802-803 (3) (b) (2) (750 SE2d 148) (2013).

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

(Citation and punctuation omitted; emphasis supplied.) Id. at 803 (3) (b) (2). In Brown, the Supreme Court overturned this Court’s decision in State v. Brown, 315 Ga. App. 154 (726 SE2d 654) (2012), concluding that this Court deviated from these fundamental principles by going beyond the trial court’s findings of fact, conducting a de novo review, and failing to realize that the trial court, as the trier of fact, “is not obligated to believe a witness even if the testimony is uncontradicted and may accept or reject any portion of the testimony. Thus, a rational trier of fact can choose to reject even ‘undisputed’ testimony.” (Citation and punctuation omitted.) Id. at 804 (3) (b) (2). Even though the Supreme Court reiterated the fundamental principles of appellate review on a motion to suppress, they are disregarded by the majority.

Clearly, judges on this Court may have decided the case differently had they been sitting as the trier of fact at the suppression hearing. Appellate review, however, requires a different approach. As discussed in more detail below, this case presents issues of credibility and conflicting evidence as to the cause of the alleged indicia of impairment. As a result, a clearly erroneous standard applies. See Miller v. State, 288 Ga. 286, 290 (2) (702 SE2d 888) (2010); State v. Gray, 267 Ga. App. 753, 753-754 (1) (600 SE2d 626) (2004). The majority here concludes that a de novo standard applies, but in doing so, the majority fails to limit its review to the facts as found by the trial court in its order. To properly review a trial court’s order on a motion to suppress, “we must focus on the facts found by the trial court in its order, as the trial court sits as the trier of fact.” (Emphasis in original.) Miller, supra, 288 Ga. at 287 (1). The trial court’s verbatim factual findings are as follows:

None of the officers who testified at the [suppression] hearing performed any field sobriety tests to determine if Defendant was impaired by drugs or alcohol, and it appears as if no other officer did so.
There was no indication that either vehicle contained evidence of the recent ingestion of any intoxicants. The officers testified that during their investigation, Defendant told them he must have fallen asleep before the accident. The officers stated that Defendant did appear to be “trying to fall asleep;” had glassy eyes with some redness; and may have been unsteady on his feet.
After arresting Defendant for homicide by vehicle in the second degree and running a red light, two of the officers searched his clothing and found some tightly packaged pills, which they could not immediately identify. At that point one of the officers read the implied consent warning to Defendant. This same officer testified that he did not have any reason to read the implied consent warning prior to discovering the pills.
This Court has carefully reviewed the testimony of each of the three police officers who testified at the motion [to suppress] hearing, and recognizing this case is very fact specific, finds, based on the totality of the circumstances, the police did not have probable cause to invoke the implied consent statute following the arrest and search of Defendant on June 27, 2011. This Court is cognizant of the fact that the officers testified that Defendant Hughes had glassy eyes with some redness and may have been unsteady on his feet. However, the decision not to conduct any field sobriety tests or otherwise investigate a possible DUI charge prior to the discovery of the pills supports a finding that the officers did not suspect that Defendant was driving under the influence of any intoxicant beforehand. Additionally, there was no evidence of any drugs or alcohol in Defendant’s system when the officers read the implied consent warning. Merely finding these drugs, without any evidence of recent consumption, may furnish an officer with a hunch or suspicion, but not probable cause that withstands constitutional scrutiny. If the mere presence of alcohol inside a person’s body does not furnish probable cause for a DUI arrest as held by the appellate courts of this State, the mere presence of drugs in Defendant’s pockets must also fall short. Accordingly, this Court finds that Defendant’s manifestations were consistent with the after-effects of an automobile collision where an airbag deployed and concludes that these manifestations did not provide the officers with probable cause to invoke the implied consent statute.

(Emphasis supplied.)

Reading the entire order, as we must, and in consideration of the trial court’s statements at the suppression hearing, it cannot seriously be contended that the trial court, as the trier of fact, accepted all of the officers’ testimony. Specifically, although the trial court noted that the officers collectively testified that Hughes appeared to be “trying to fall asleep,” had glassy eyes with some redness, and seemed unsteady on his feet, the trial court called this testimony into question when it expressly noted that despite these apparent indicators, none of the officers elected to perform a field sobriety test. The trial court expressed doubt about the existence of probable cause when it noted that Corporal Greene “testified that he did not have any reason to read the implied consent warning prior to discovering the pills.” Additionally, at the suppression hearing, the trial court questioned Corporal Greene’s credibility when it made special note of his testimony that he believed that Hughes was under the influence of mind-altering stimulants. Corporal Greene’s opinion was inconsistent with his testimony that Hughes was sleepy and slow to respond because stimulants would cause agitation. See Tate v. State, 264 Ga. 53, 56 (3), n. 5 (440 SE2d 646) (1994) (contradictory or inconsistent statements can lead a finder of fact to disregard an officer’s testimony); State v. Starks, 281 Ga. App. 15, 16-17 (635 SE2d 327) (2006).

Despite the trial court’s order showing that it questioned the officers’ testimony, the majority incorrectly concludes that there were no disputed issues of fact or issues of credibility because the trial court did not make an explicit credibility determination. Such explicit findings are not required, however. See, e.g., Miller, supra, 288 Ga. at 290 (2) (given the trial court’s ultimate ruling to grant a motion to suppress, it was logical that the trial court discredited and rejected the officers’ testimony); Tate, supra, 264 Ga. at 57 (3) (“We conclude from reading the entire order that the trial court chose not to believe the deputy’s testimony.. . .”); Barnett v. State, 204 Ga. App. 491, 492 (1) (420 SE2d 43) (1992) (“The trial court perforce of its ruling on the suppression motion found [the officer’s] testimony credible. . . .”). Rather than defer to the trial court’s resolution of the credibility issues raised in this case, the majority imposes a credibility determination not made by the trial court — that the officers were credible and, therefore, their testimony must be accepted as fact.

Applying the proper standard of review, and viewing the evidence in the light most favorable to the trial court’s ruling, the evidence supports the trial court’s conclusion that the police officers lacked probable cause to believe that Hughes was driving under the influence. Notably, evidence shows that Hughes was sleep-deprived, and he specifically told officers that he had fallen asleep at the wheel before striking the other driver. Corporal Greene testified that Hughes appeared to be falling asleep after the accident. Additionally, Corporal Greene testified that the substantial force with which airbags deploy and hit a driver may have caused Hughes to become unsteady on his feet. Officer Allen and Corporal Greene both testified that the white powder released upon airbag deployment could have affected or irritated Hughes’s eyes. Moreover, despite the alleged indicia of impairment and despite having received training in how to detect whether a person was under the influence of drugs, none of the officers conducted a field sobriety test or otherwise investigated a possible DUI charge prior to the discovery of the pills on Hughes. Corporal Greene specifically stated that he had no reason to read the implied consent notice until he found the pills, which demonstrated a lack of suspicion that Hughes was under the influence of drugs or alcohol. There was no evidence that Hughes had recently ingested the pills, and, in any case, the presence of the drugs, alone, does not establish probable cause. See Armour v. State, 315 Ga. App. 745, 747 (1) (728 SE2d 270) (2012) (the presence of drugs in a driver’s body does not, by itself, establish probable cause).

Although the State and the majority cite to evidence that Hughes exhibited several indicators of impairment, these factors do not demand a finding of impairment. See State v. Damato, 302 Ga. App. 181, 183 (1) (690 SE2d 478) (2010); cf. State v. Goode, 298 Ga. App. 749, 752 (681 SE2d 199) (2009) (defendant’s strong odor of alcohol, glassy and watery eyes, admission to drinking, and positive alcosensor tests did not require a finding of impairment). Additionally, although Corporal Greene opined that Hughes was under the influence of drugs because he exhibited symptoms that were consistent with people under the influence, the trial court, as the trier of fact, “may accept part of a witness’ testimony and reject another part, and in the absence of evidence of record demanding a finding contrary to the judge’s determination, the appellate court will not reverse the ruling sustaining a motion to suppress.” (Citation and punctuation omitted; emphasis supplied.) Anderson v. State, 267 Ga. 116, 118-119 (2) (475 SE2d 629) (1996); see siso Damato, supra, 302 Ga. App. at 183 (1) (the trier of fact is not bound by an officer’s opinion, even if it is uncontradicted).

The trial court could have drawn an inference that Hughes was under the influence of drugs or alcohol. Presented with the officers’ testimony and evaluating their credibility, however, the trial court declined to make this inference.

The principles of appellate review applicable to these motions were set forth to ensure that, in difficult cases such as this one, the trial court’s resolution of these issues would be given deference, as only the trial court actually sees the witnesses and hears their testimony.

Miller, supra, 288 Ga. at 290 (2). In applying the fundamental principles of appellate review, the evidence does not demand a finding contrary to the trial court’s determinations that the alleged indicia of impairment were consistent with the after-effects of a serious accident, as opposed to being consistent with signs of a person under the influence of drugs. See, e.g., Gray, supra, 267 Ga. App. at 756 (2) (although the evidence was conflicting as to the cause of the alleged indicia of impairment, this Court affirmed the trial court’s grant of a motion to suppress because the trial court found the alleged indicia of impairment were either caused by the accident or lacked credibility, and there was another explanation for the cause of the accident). Viewing the evidence in the light most favorable to the trial court’s ruling, there is evidence to support the court’s conclusion that the police officers lacked probable cause. Accordingly, I would affirm the grant of Hughes’s motion to suppress.

I am authorized to state that Presiding Judge Barnes and Presiding Judge Doyle join in this dissent.

BARNES, Presiding Judge,

dissenting.

While I fully join Judge Miller’s dissent, I write separately to further emphasize the deferential standard of review that we must apply in this case. In the context of a trial court’s grant or denial of a motion to suppress, if “the underlying facts support conflicting inferences as to whether the defendant was an impaired driver, we apply a clearly erroneous standard of review and defer to the trial court’s finding on the issue.” (Citation and punctuation omitted.) State v. Encinas, 302 Ga. App. 334, 336 (691 SE2d 257) (2010). See Slayton v. State, 281 Ga. App. 650, 653 (1) (637 SE2d 67) (2006) (standard of review may require this Court to affirm the trial court’s grant or denial of a motion to suppress “under the same facts depending on the credibility determinations and inferences drawn by the trial court”) (citation omitted). This follows from the longstanding principle that “as an appellate court for the correction of legal errors, we must draw all reasonably permissible inferences from the evidence to support the trial court’s ruling.” (Citation and punctuation omitted.) Slayton, 281 Ga. App. at 653 (1).

Here, the underlying facts clearly would have supported an inference by the trial court that Hughes was impaired by illegal drugs when he caused the automobile accident, and thus would have supported the denial of the motion to suppress. Indeed, members of this Court might very well have drawn such an inference if we had been sitting as the trier of fact at the suppression hearing. Nevertheless, the underlying facts also support a competing inference that Hughes was not impaired by illegal drugs when he caused the automobile accident, as the trial court found in this case. Under these circumstances, where conflicting inferences as to whether Hughes was impaired by drugs could be drawn from the record, we should defer to the trial court’s finding on the issue and affirm the grant of the motion to suppress.

Decided November 21, 2013

Reconsideration denied December 11, 2013

Julia Fessenden Slater, District Attorney, Wesley A. Lambertus, Assistant District Attorney, for appellant.

Hagler & Hyles, Richard C. Hagler, Allen M. Trapp, Jr., for appellee.

I am authorized to state that Presiding Judge Doyle joins in this dissent.

       The fact that Hughes was driving and caused a wreck leading to a fatality was not in dispute on the motion to suppress.

        Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

       Hughes did not challenge the authority of the search incident to arrest.

       See Brown v. State, 293 Ga. 787, 804 (3) (b) (2) (750 SE2d 148) (2013) (“[T]he trier of fact is not obligated to believe a witness even if the testimony is uncontradicted and may accept or reject any portion of the testimony.”) (citation and punctuation omitted).