author: McFADDEN, Judge.

text:
    A16A0118.
    SPENCER v. THE STATE.
    (787 SE2d 320)
   McFADDEN, Judge.

After a jury trial, Mellecia Spencer was convicted of driving under the influence of alcohol to the extent she was a less safe driver and possessing an open container of alcohol in the passenger area of her vehicle. She appeals, arguing that the trial court erred in allowing the arresting officer to testify that Spencer’s performance on the horizontal gaze nystagmus (“HGN”) test proved a specific numeric blood-alcohol content level. However, the officer did not give such testimony, and instead properly testified that generally an HGN test showing four out of six clues indicates impairment. Spencer also claims that the trial court erred in giving a burden-shifting jury charge on reasonable doubt, but we find no error, as the court correctly gave the suggested pattern jury instruction on reasonable doubt. Accordingly, we affirm.

Construed in the light most favorable to the verdict, see Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the evidence showed that at approximately 2:00 a.m. on January 31, 2015, a police officer stopped Spencer for driving a car with a nonworking headlight. Upon approaching the vehicle, the officer smelled the odor of alcohol, saw that Spencer was wearing a paper bracelet from a drinking establishment with the word “Budweiser” on it, saw a plastic cup with an apparent alcoholic drink in the car’s center console, and observed that Spencer’s speech was slurred. Spencer initially denied drinking any alcoholic beverages, but then admitted drinking a margarita. Spencer’s performance on field sobriety tests, including the presence of four out of six clues on the HGN test, indicated impairment. Spencer refused to take a roadside breathalyzer test or the state-administered test for blood-alcohol content.

The jury found Spencer guilty of the DUI and open container offenses, and the trial court denied her motion for a new trial. This appeal followed.

1. HGN testimony.

Spencer claims that the trial court erred in allowing the arresting officer to testify to a specific numeric value of her blood-alcohol content based on the HGN test. Indeed, it is true that an “arresting officer’s testimony identifying a specific numeric blood alcohol content based solely on [a] defendant’s HGN results should [be] excluded.” Scott v. State, 332 Ga. App. 559, 567 (5) (774 SE2d 137) (2015). But the officer here did not give such testimony Rather, he testified that in performing the test he looks for up to six clues in a subject’s eyes, that observing four or more clues indicates impairment due to alcohol, and that “four out of six clues generally indicates a blood alcohol level equal to or greater than .08.”

[I]t is well settled in Georgia that the HGN test is an accepted, common procedure that has reached a state of verifiable certainty in the scientific community and is admissible as a basis upon which an officer can determine that a driver was impaired by alcohol. And we have previously concluded that field sobriety tests, including the HGN, are admissible to show that a detainee’s [blood-alcohol content] exceeds a particular impairing level.

Bravo v. State, 304 Ga. App. 243, 247-248 (1) (696 SE2d 79) (2010) (citations, punctuation and emphasis omitted).

Here, the officer did not identify a specific numeric blood-alcohol content level for Spencer based solely on her HGN results, and instead merely testified that generally, four out of six clues on the HGN shows that a blood-alcohol content exceeds the impairing level of 0.08. As this court has previously recognized, “[u]nder law enforcement guidelines, a score of four out of six clues on an HGN test constitutes evidence of impairment.’’ Parker v. State, 307 Ga. App. 61, 64 (2) (704 SE2d 438) (2010) (citation and punctuation omitted). Moreover, the officer’s testimony in the instant case is similar to the testimony found to be admissible in Kirkland v. State, 253 Ga. App. 414 (559 SE2d 161) (2002), where an officer testified that “in general, when you see six out of six clues [on the HGN], the blood-alcohol content will be ... 0.10 grams or greater.” Id. at 416 (punctuation omitted). As in Kirkland, the trial court here did not err in allowing the officer’s testimony since he did not identify a specific numeric blood-alcohol content based on Spencer’s HGN results, and instead properly testified that generally, an HGN test showing four out of six clues indicates impairment.

2. Jury charge.

Spencer complains that the trial court erred in giving the pattern jury instruction on reasonable doubt instead of her requested charge on the subject. Without citation to any supporting legal authority, she claims that the pattern jury instruction is improperly burden-shifting, and she requests that we make new law by overturning the pattern instruction. We decline the request.

“When a legal issue involves such well-established principles as the definition of reasonable doubt, there are few, if any, circumstances which would justify a trial court’s failure to use the suggested pattern criminal charges compiled by the Council of Superior Court Judges of Georgia.” Coleman v. State, 271 Ga. 800, 805 (8) (523 SE2d 852) (1999). Spencer has shown no circumstance in this case that would have justified the trial court failing to follow the pattern charge on reasonable doubt, which “specifically has been approved by [this court]." Anthony v. State, 298 Ga. 827, 834 (5) (785 SE2d 277) (2016) (citations omitted). Accordingly, this enumeration of error is without merit.

Decided June 9, 2016

Thomas J. Thomas, for appellant.

John A. Pipkin III, Solicitor-General, William B. Kennedy III, Assistant Solicitor-General, for appellee.

Judgment affirmed.

Miller, P. J., and McMillian, J., concur.


source: Caselaw Access Project

author: ANDREWS, Presiding Judge.

license: Public Domain

text:
    A16A0212.
    PARKER v. ROBINSON.
    (787 SE2d 317)
   ANDREWS, Presiding Judge.

Adriene Parker appeals from an order of contempt entered against her by the Superior Court of Fulton County for her wilful violation of certain provisions of a temporary visitation order. Because Parker failed to timely file a notice of appeal of the trial court’s contempt order, we lack jurisdiction and dismiss this appeal.

In September 2014, Parker filed a petition to modify the visitation rights of Al-Rahim Robinson with the couple’s minor child. Robinson responded, and the couple entered a temporary order regarding visitation which required, in part, Parker to board the minor child on a January 1, 2015 flight to New York City, New York to visit Robinson. Parker failed to board the child as required. In January 2015, Robinson asked the trial court to hold Parker in contempt for violating the temporary order. Following a hearing during which the trial court received evidence, the trial court entered an order dated February 13, 2015 finding Parker in contempt and ordering her to reimburse Robinson for various expenses, including $2,000 in attorney fees.

On March 13, 2015, Parker filed a “Motion for New Trial or in the Alternative Motion to Set Aside Judgment.” The thrust of Parker’s argument was that the trial court did not “state a statutory basis for an award of attorney’s fees.” The trial court summarily denied Parker’s motion for new trial and granted in part and denied in part Parker’s motion to set aside. On appeal, Parker does not contest the finding of contempt against her; rather, she argues that “the award of attorney’s fees and expenses of litigation against her is contrary to Georgia law.”

Although not addressed by the parties, we are obligated to question our jurisdiction “in all cases in which there may be any doubt regarding the existence of such jurisdiction.” (Citation and punctuation omitted.) Bandy v. Elmo, 280 Ga. 221 (626 SE2d 505) (2006); Canoeside Properties v. Livsey, 277 Ga. 425, 426 (1) (589 SE2d 116) (2003).

1. Under Georgia law, a litigant cannot use a motion for a new trial to challenge a trial court’s legal conclusions; rather, it is a proper vehicle only for challenging factual findings made by either a jury or a judge in a trial-like setting. See, e.g., Turner v. Bynum, 255 Ga.App. 173, 175 (1) (564 SE2d 784) (2002) (litigant properly filed motion for new trial from trial court’s order enforcing a settlement agreement); Bank South Mortgage v. Starr, 208 Ga. App. 19, 20 (429 SE2d 700) (1993). Where a motion for new trial is not a proper vehicle for review of a trial court’s action, it has no validity and will not extend the time for filing the notice of appeal. See Turner, 255 Ga.App. at 174-175 (1). See also Pillow v. Seymour, 255 Ga. 683, 684 (341 SE2d 447) (1986).

While a motion for new trial may be available to challenge a trial court’s finding of contempt, see Berman v. Berman , 231 Ga. 216 (200 SE2d 870) (1973), there is no such challenge in this case. Instead, Parker pursued a purely legal argument that the trial court’s award of attorney fees pursuant to OCGA § 19-6-2 was not supported by statute. See Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000) (“As a general rule, Georgia law does not provide for the award of attorney fees even to a prevailing party unless authorized by statute or by contract. When awarded by statute, such fees may only be obtained pursuant to the statute under which the action was brought and decided.”); Bank South, 208 Ga. App. at 20. There being no challenge to any factual issue, we conclude that Parker’s motion for new trial was not the proper vehicle to review the trial court’s original contempt order. See Turner, 255 Ga. App. at 175 (1); Bank South, 208 Ga. App. at 20. As a result, Parker’s motion did not toll the time for appealing the trial court’s order. See Pillow, 255 Ga. at 684; Turner, 255 Ga. App. at 174-175 (1).

“The proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.” Johnson v. State, 234 Ga. App. 675 (507 SE2d 529) (1998). “A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of. . . OCGA § 5-6-38 (a). Furthermore, “[n]o appeal shall be dismissed . . . except . . . [f]or failure to file notice of appeal within the time required as provided in this article or within any extension of time granted hereunder. . . OCGA § 5-6-48 (b) (1). In this case, the trial court’s order finding Parker in contempt and assessing attorney fees was entered February 13, 2015. As a result, Parker’s notice of appeal had to be filed no later than Monday, March 16, 2015. See OCGA § 5-6-38 (a). However, the notice of appeal was not filed until August 3,2015. “The recordfails to reflect that [Parker] sought or was granted an extension of time in which to file the notice of appeal, nor did [she] seek or receive permission to file an out-of-time appeal.” (Citations omitted.) Davis v. State, 280 Ga. 352 (628 SE2d 374) (2006). “In the absence of a timely filed notice of appeal, this Court is without jurisdiction to consider the merits of the case, and the appeal in [this case] must be dismissed.” Johnson, 234 Ga. App. at 675.

2. To the extent that Parker seeks to appeal the denial of her motion to set aside as to attorney fees, this Court again lacks jurisdiction. The denial of a motion to set aside a final judgment under OCGA § 9-11-60 is not directly appealable, but rather requires the filing of an application for discretionary appeal under OCGA § 5-6-35 (b). Jim Ellis Atlanta, Inc. v. Adamson, 283 Ga. App. 116, 117 (640 SE2d 688) (2006). No such application was filed. It necessarily follows that our jurisdiction is again lacking. Id. at 117 (clear that denial of motion to set aside “was not directly appealable and that the present appeal must consequently be dismissed”) (citation and punctuation omitted).

Appeal dismissed.

Doyle, C. J., concurs. Ray, J., concurs in judgment only.

Decided June 9, 2016.

Bell & Washington, Celeste F. Brewer, for appellant.

Bips & Bips, Mark C. Bips, for appellee.

       It does not appear that Parker and Robinson were ever married.

       The trial court did not cite a statutory basis for the attorney fee award in its order.

       The trial court struck its previous award of Robinson’s travel expenses to attend Parker’s contempt hearing, finding that “they are not a valid expense of litigation and are not otherwise recoverable.”

       Indeed, Robinson failed to file an appellee’s brief as required by our rules. See Court of Appeals Rule 23 (b) (“Appellee’s brief shall be filed within 40 days after the appeal is docketed or 20 days after the filing of appellant’s brief, whichever is later....”). (Emphasis supplied.) The Bar is reminded that “[fjailure to timely file [an appellee’s brief] may result in non-consideration of the brief and may subject counsel to contempt.” Id. See also Court of Appeals Rule 13.

       The result would be the same if Parker’s motion were construed to be a motion for reconsideration, as such motions do not toll the time for filing a notice of appeal. See Blackwell v. Sutton, 261 Ga. 284 (404 SE2d 114) (1991); Masters v. Clark, 269 Ga. App. 537, 539 (604 SE2d 556) (2004).

       It is unnecessary for us to decide whether Parker’s motion could be properly construed as a motion to set aside because, in either event, our jurisdiction is lacking.


author: PHIPPS, Presiding Judge.

text:
    A16A0318.
    A16A0319.
    A16A0320.
    A16A0321.
    BARCLAY v. STEPHENSON et al. JOHNSON et al. v. GOVERNMENT EMPLOYEES INSURANCE COMPANY STEPHENSON et al. v. GOVERNMENT EMPLOYEES INSURANCE COMPANY JOHNSON et al. v. STEPHENSON et al.
    (787 SE2d 322)
   PHIPPS, Presiding Judge.

Thomas Stephenson and his wife sued Mary Barclay, Carol Johnson, and Thomas Johnson for damages sustained when Stephenson fell on property belonging to Barclay and occupied by the John-sons. Barclay’s umbrella liability insurance carrier, Government Employees Insurance Company (“GEICO”), later filed a declaratory judgment action, seeking a determination of coverage. Following discovery, Barclay and the Johnsons movedfor summary judgment in the personal injury suit, and GEICO sought summary judgment in the declaratory judgment action. The trial court denied the motions filed by Barclay and the Johnsons, but granted GEICO’s motion. These appeals followed. For reasons that follow, we reverse the denials of summary judgment in the personal injury action and affirm the grant of summary judgment to GEICO.

Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” We review a trial court’s summary judgment ruling de novo, construing the evidence and all reasonable inferences favorably to the nonmovant.

So viewed, the record shows that the Johnsons leased a home from Barclay on Kensington Drive in Marietta. The Johnsons also owned a house, which they rented to Stephenson and his wife. Occasionally, Stephenson performed work for the J ohnsons in exchange for a credit against his rent payment.

In August 2008, Carol Johnson asked Stephenson to remove a chainsaw that had become pinned in a tree under a partially-cut limb at the Kensington Drive property Stephenson agreed and, on September 6, 2008, arrived at the property with an extension ladder. Thomas Johnson showed the tree to Stephenson, who asserted that he needed to cut the limb to remove the chainsaw. Stephenson erected the ladder, tethered it to the tree with a rope, and began cutting the limb with a pole pruner. The work required him to move and re-tether the ladder several times to reach different, parts of the tree.

Stephenson’s pole pruner stopped working at some point, and he briefly left the Kensington Drive property to repair it. During the 20 to 30 minutes he was away, the Johnsons removed cut branches and debris from under the tree. When Stephenson returned, he quickly realized that he needed to move the ladder again. According to Thomas Johnson, Stephenson climbed the ladder, untied it from the tree, and began “jumping it” to the next place he planned to cut. Stephenson denied “jumping” the ladder, which he characterized as “an extremely dangerous thing to do.” Without dispute, however, he untethered the ladder and it collapsed. Stephenson hung briefly from the tree, then fell to the ground, injuring his ankle.

On August 27, 2010, Stephenson and his wife sued the Johnsons and Barclay for over $1,000,000 in damages. Stephenson claimed that the Johnsons had failed to keep the Kensington Drive property reasonably safe and had caused his fall. He also alleged a premises liability claim against Barclay and asserted that she had negligently entrusted the property to the Johnsons. In addition, Stephenson’s wife asserted a loss of consortium claim against Barclay and the Johnsons. While the personal injury suit was pending, GEICO filed a declaratory judgment action against all parties, seeking resolution of coverage issues relating to the umbrella liability insurance policy issued to Barclay

Barclay and the Johnsons subsequently filed motions for summary judgment in the personal injury action, and GEICO moved for summary judgment in the declaratory judgment suit. Although the trial court denied the Barclay/Johnson motions, it issued certificates of immediate review, and we granted their requests for interlocutory appeal. Barclay’s appeal has been docketed as Case No. A16A0318, and the Johnsons’ appeal has been docketed as Case No. A16A0321. The trial court also awarded summary judgment to GEICO in the declaratory judgment action, generating two additional appeals. In Case No. A16A0319, the Johnsons challenge the grant of summary judgment to GEICO, and the Stephensons appeal the same ruling in Case No. A16A0320.

Case No. A16A0321

1. The Johnsons argue that the trial court erred in denying their motion for summary judgment as to the Stephensons’ personal injury claims. We agree.

Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.

The true basis for liability is the owner or occupier’s superior knowledge of a perilous condition on the property. Recovery may result when the condition is known to the owner or occupier, but not the person injured. Thus, “[wjhere the uncontroverted evidence demonstrates that the invitee had knowledge of the dangerous condition equal to that of the premises [occupier], there can be no recovery by the invitee for injuries resulting from the dangerous condition.”

Stephenson was injured when the extension ladder he was using collapsed, causing him to fall. The injury-causing condition, therefore, involved the ladder. Without dispute, however, Stephenson brought the ladder onto the Kensington Drive property and erected it. The evidence further shows that he had previously worked with this ladder; had set up, climbed, and readjusted the ladder several times without incident before it collapsed; and was familiar with its use. Stephenson had at least equal — if not greater — knowledge of the ladder and its use than the Johnsons.

Nevertheless, Stephenson and his wife contend that questions of fact remain as to the Johnsons’ liability because the Johnsons must have bumped or hit the ladder when Stephenson left to fix the pole pruner, destabilizing it and ultimately causing it to collapse. According to the Stephensons, “there is no other rational explanation for the ladder collapsing.”

The Johnsons, however, flatly denied moving, touching, or otherwise disturbing the ladder. They admitted removing branches and debris from the ground under the tree, but Thomas Johnson stated that he did not “go over by the ladder.” And Carol Johnson testified that the ladder “wasn’t moved while [Stephenson] was gone.” Stephenson and his wife have pointed to no evidence controverting the Johnsons’ testimony Moreover, although Stephenson asserted that “[i]n [his] judgment, the base of the ladder had been accidentally bumped,” he did not see anyone touch the ladder, it “looked intact” before it collapsed, and it did not appear to have been moved before he climbed it the final time.

“[G]uesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment.” Thus, “[w]here a plaintiff’s proof of causation in a negligence case is based on mere possibilities, or the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it is the duty of the trial court to grant summary judgment for the defendant.” Stephenson’s “feelings” and “viewpoint” about how the ladder collapsed do not raise factual questions as to causation. And his speculation that the Johnsons were intoxicated when he fell proves nothing.

Stephenson and his wife offered no evidence that the Johnsons disturbed the ladder before it collapsed, and the Johnsons unequivocally denied touching it. The evidence further shows that Stephenson had moved and repositioned the ladder multiple times that day. To conclude, in the face of such evidence, that the Johnsons caused the ladder to fall would be mere conjecture. The trial court, therefore, erred in denying the Johnsons’ motion for summary judgment on Stephenson’s premises liability claim, as well as his wife’s derivative claim for loss of consortium.

Case No. A16A0318

2. Barclay argues that she is entitled to summary judgment because no questions of material fact remain as to her liability As noted above, the claims against Barclay rest on theories of premises liability and negligent entrustment. Stephenson and his wife allege that Barclay failed to keep her property in repair and negligently entrusted it to the Johnsons, who were known alcoholics. Neither theory supports recovery here.

(a) Premises liability. Barclay did not live on the Kensington Drive property She leased it to the Johnsons, who were responsible for the premises. Given these circumstances, Barclay’s duties are controlled by OCGA § 44-7-14, which governs tort liability for an out-of-possession landlord. Under that Code section:

Having fully parted with possession and the right of possession, the landlord is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; provided, however, the landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.

Barclay, therefore, may be held liable only for damages caused by “failure to repair the premises or faulty construction of the premises.” Although the allegations are not completely clear, Stephenson and his wife apparently contend that Barclay failed to repair a defect in the tree from which Stephenson fell. The term “repair,” however, “contemplates an existing structure which has become imperfect, and means to supply in the original structure that which is lost or destroyed, and thereby restore it to the condition in which it originally existed, as near as may be.” Stephenson and his wife have not cited any evidence that the tree had become “imperfect” or required repair. Rather, a chainsaw was pinned under a tree branch, and Stephenson was asked to dislodge it. We question whether such circumstances fall within the concept of “repair.”

Moreover, even if the tree could be viewed as defective and in need of repair, the record shows that Stephenson was not injured by any such defect. On the contrary, he fell when the ladder he brought to the property collapsed under him. Barclay’s alleged failure to repair the tree, therefore, did not damage Stephenson.

Asserting that the Johnsons must have dislodged the ladder, causing it to collapse, Stephenson and his wife also argue that Barclay is somehow responsible as landlord for their purported actions. But an out-of-possession landlord is “not liable to third parties for damages arising from the tenant’s negligence.” Regardless of any actions taken by the Johnsons, Barclay may be held liable only for damages resulting from faulty construction or a failure to repair. Furthermore, as discussed in Division 1, Stephenson and his wife have cited no evidence that the Johnsons caused the ladder to collapse. The trial court, therefore, erred in denying Barclay’s motion for summary judgment on the premises liability claim.

(b) Negligent entrustment. Stephenson and his wife also allege that Barclay negligently entrusted the Johnsons to supervise her property Claiming that the Johnsons are alcoholics, the Stephensons contend that “[tjhis negligent entrustment posed a foreseeable and unreasonable risk of harm to workers because [Barclay] knew or should have known that because of [the Johnsons’] drunkenness, they would pose a danger to workers on the premises.”

Under the doctrine of negligent entrustment, a party is liable if he entrusts someone with an instrumentality, with actual knowledge that the person to whom he has entrusted the instrumentality is incompetent by reason of his age or inexperience, or his physical or mental condition, or his known habit of recklessness.

This doctrine typically applies when a vehicle owner entrusts a vehicle to an allegedly incompetent driver. It has no application in this case, which does not involve entrustment of any type of instrumentality, such as a vehicle. Barclay, therefore, was entitled to summary judgment on the negligent entrustment claim.

(c) Loss of consortium. Because summary judgment should have been granted to Barclay on the personal injury allegations, she is also entitled to summary judgment on the loss of consortium claim filed by Stephenson’s wife.

Case Nos. A16A0319 and A16A0320

3. In these appeals, the Stephensons and the Johnsons appeal the grant of summary judgment to GEICO in the declaratory judgment action. The record shows that Barclay and her husband had an umbrella liability insurance policy issued by GEICO in effect when Stephenson was injured at the Kensington Drive property on September 6, 2008. In the declaratory judgment action, GEICO alleged, among other things, that it “may not have been provided with proper notice” of the Stephensons’ claims. The trial court agreed that notice was lacking and granted summary judgment to GEICO.

(a) The Stephensons and the Johnsons argue that summary judgment was improper because GEICO denied coverage, foreclosing relief under the Declaratory Judgment Act. It is true that an insurer cannot deny coverage, then seek a declaratory judgment as to rights and responsibilities under its policy. The record, however, contains no evidence that GEICO denied coverage. On the contrary, it stated in its declaratory judgment complaint that coverage was uncertain and that the policy might not cover the claims. Given the uncertainty, it requested a declaration of its rights and responsibilities. Declaratory relief was appropriate here.

(b) The Stephensons and the Johnsons further argue that questions of fact remain as to whether GEICO received sufficient notice of the personal injury claims. We disagree.

“[A] notice provision expressly made a condition precedent to coverage is valid and must be complied with, absent a showing of justification.” An unjustified failure to give such notice ends the insurer’s coverage obligations. Although issues of justification and timely notice often raise factual questions, “the facts and circumstances of a particular case may render an insured’s delay in giving notice of an occurrence to his insurer unjustified and unreasonable as a matter of law.”

GEICO’s policy provided excess insurance coverage for damages “arising out of an occurrence, subject to the terms and conditions of [the] policy.” The policy, which required Barclay to maintain at least $100,000 in primary insurance coverage on the Kensington Drive property, generally covered damages exceeding the primary insurer’s policy limits. It defined an “occurrence” as “an accident or event, including a continuous or repeated exposure to conditions which results in personal injury or property damage neither expected or intended by you.” And it set forth several conditions, including:

1. Duties after Occurrence, Claim or Suit
(a) If an occurrence is likely to involve us under this policy an insured shall promptly advise us of: (1) how, when and where the occurrence took place; and (2) names and addresses of the injured and all witnesses.
(b) If information regarding a claim is received or if legal action is begun, an insured must immediately send us a copy of every: (1) notice; (2) demand; (3) report; (4) summons; or (5) other legal papers.
4. Suit Against Us. No action shall be brought against us:
(a) unless an insured has complied with the policy provisions; and
(b) until the obligations of an insured has been determined by trial and judgment or by agreement signed by us.

The policy terms, therefore, required the insured to “promptly” advise GEICO of an occurrence likely falling within the umbrella policy and to “immediately” send GEICO copies of legal papers regarding any claim or lawsuit. Coverage — as well as the insured’s ability to sue GEICO — depended on compliance with these and other policy conditions. Given these provisions, timely notice was an express precondition to coverage.

Despite this precondition, notice was significantly delayed here. Stephenson fell on the Kensington Drive property on September 6, 2008, and he and his wife filed their personal injury action approximately two years later, on August 27, 2010. GEICO, however, was not notified of the incident until December 18, 2013, more than five years after Stephenson fell and three years after he and his wife brought suit.

The Stephensons and the Johnsons claim that the delay was justified because Barclay’s husband died shortly after the Stephen-sons filed suit, Barclay was ill and grieving at the time, and she was not familiar with the family’s business affairs. But they have pointed to no testimony from Barclay on the issue of notice. Barclay’s son-in-law, who helped Barclay with her husband’s estate, testified that he notified GEICO of the personal injury action when he became aware of the umbrella policy He offered no explanation, however, as to why Barclay did not notify the insurer about the claims before December 18, 2013. And the record shows that on October 27, 2010, Barclay served a verified discovery response in the personal injury action through which she identified the GEICO policy as excess liability insurance coverage that “would be or may be used to satisfy or indemnify part or all of the judgment which may be entered in this case.”

The terms of the GEICO policy required prompt notice of any occurrence likely to involve the policy and immediate notice of legal action. GEICO, however, was not informed of the claims or the lawsuit seeking over $1,000,000 in damages for over three years. Given this lengthy delay, Barclay’s knowledge of the GEICO policy and its potential application, and the lack of evidence supporting justification, the trial court properly found that GEICO did not receive timely notice of the claims. The insurer, therefore, was entitled to summary judgment in Case Nos. A16A0319 and A16A0320.

Decided June 9, 2016.

Fain, Major & Brennan, Thomas E. Brennan, Richard W. Brown, for Barclay.

Austin Law Group, Laura E. Austin, for Stephenson et al.

Hugh M. Dorsey III; Carlock, Copeland & Stair, L. Elizabeth Albright, Frederick M. Valz III, Melissa L. Bailey, for Johnson et al.

Cruser & Mitchell, J. Robb Cruser, Craig P. Terrett, for Government Employees Insurance Company

Judgments affirmed in Case Nos. A16A0319 and A16A0320. Judgments reversed in Case Nos. A16A0318 and A16A0321.

Dillard and Peterson, JJ., concur.

       The personal injury action also named Barclay’s husband, James Barclay, as a defendant. However, he died during the pendency of the lawsuit, and it does not appear that his estate or its representative has joined the appeals.

       OCGA § 9-11-56 (c).

        See Forest Cove Apartments v. Wilson, 333 Ga.App. 731-732 (776 SE2d 664) (2015); Pirkle v. QuikTrip Corp., 325 Ga.App. 597, 599 (2) (754 SE2d 387) (2014).

       For ease of discussion, we will address the Johnsons’ appeal in the personal injury suit first.

       OCGA § 51-3-1; see also McGarity v. Hart Elec. Membership Corp., 307 Ga.App. 739, 742 (1) (706 SE2d 676) (2011) (“An invitee is one who, by express or implied invitation, has been induced or led to come upon premises for any lawful purpose; he may be deemed an invitee if his presence on the property is of mutual benefit to him and the owner or occupier.”) (footnote omitted).

        See Forest Cove Apartments, supra at 734.

       See id.

       Id. (citation omitted).

       See id. (contractor who fell through floor while repairing it had equal knowledge of hazard posed by damaged floor joists); Yon v. Shimeall, 257 Ga.App. 845, 847 (1) (572 SE2d 694) (2002) (plaintiff who had previously used staircase had equal knowledge of its alleged defects).

        Forest Cove Apartments, supra at 737 (citation and punctuation omitted).

        Pirkle, supra at 600-601 (2) (a) (citation omitted).

        See Bryan Bank & Trust v. Steele, 326 Ga. App. 13, 15 (1) (755 SE2d 828) (2014) (property owner entitled to summary judgment where claimant offered only speculation about what caused her to fall on property); Pirkle, supra at 601 (2) (a) (claimant cannot avoid summary judgment through speculation); Benson-Jones v. Sysco Food Svcs. of Atlanta, 287 Ga. App. 579, 583 (1) (b) (651 SE2d 839) (2007) (“An inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility.”) (punctuation and footnote omitted).

       See Briddle v. Cornerstone Lodge of America, 288 Ga. App. 353, 355 (654 SE2d 188) (2007) (husband’s loss of consortium claim not viable where defendant entitled to summary judgment on wife’s personal injury claims).

       See Boone v. Udoto, 323 Ga. App. 482, 487 (3) (747 SE2d 76) (2013) (landlord that had no responsibility for maintaining and repairing the premises was “out-of-possession”).

       OCGA § 44-7-14.

        Gainey v. Smacky’s Investments, 287 Ga. App. 529, 530 (2) (652 SE2d 167) (2007) (punctuation and footnote omitted).

       Id. at 530 (2) (a) (punctuation and footnote omitted).

       See id.

       See Ranwez v. Roberts, 268 Ga. App. 80, 82-83 (1) (601 SE2d 449) (2004) (out-of-possession landlord not liable to third party for damages caused by tenant’s dog where damages resulted not from faulty construction or failure to repair fence, but from tenant’s failure to keep dog inside fence).

        Boone, supra at 486 (3) (punctuation and footnote omitted). See also OCGA § 44-7-14.

       See Ranwez, supra at 83 (1) (summary judgment for out-of-possession landlord appropriate where evidence showed as a matter of law that landlord did not violate duty owed to third party injured by tenant’s dog).

        Gunn v. Booker, 259 Ga. 343, 347 (3) (381 SE2d 286) (1989) (citations and footnote omitted).

       See, e.g., id. at 346-347 (3) (negligent entrustment of boat); McManus v. Taylor, 326 Ga. App. 477, 480 (1) (756 SE2d 709) (2014) (automobile); Ga. Messenger Svc. v. Bradley, 302 Ga. App. 247, 250 (2) (b) (690 SE2d 888) (2010) (truck).

       See Briddle, supra.

       See OCGA § 9-4-1 et seq.

       See Builders Ins. Group v. Ker-Wil Enterprises, 274 Ga.App. 522, 523 (2) (618 SE2d 160) (2005).

        See Atlanta Cas. Co. v. Fountain, 262 Ga. 16, 17-18 (413 SE2d 450) (1992) (“[W]hen a claim for insurance has been made, and a legitimate question exists as to the propriety of denying coverage, the insurance company may file a declaratory judgment action before denying the claim. It is not necessary for the insurance company to wait for the insured to file a lawsuit against it.”).

        Lankford v. State Farm Mut. Auto. Ins. Co., 307 Ga. App. 12, 14 (703 SE2d 436) (2010) (citation and punctuation omitted).

       Id.

        Plantation Pipe Line Co. v. Stonewall Ins. Co., 335 Ga. App. 302, 306 (1) (780 SE2d 501) (2015) (citation and punctuation omitted).

       (Emphasis in original.)

       (Emphasis in original.)

       (Emphasis in original.)

       See Lankford, supra at 13-14 (notice provision constituted a precondition to coverage where policy stated that insured could not bring action against insurer until all policy terms had been met); Bituminous Cas. Corp. v. J. B. Forrest & Sons, 132 Ga. App. 714, 717-718 (1) (209 SE2d 6) (1974) (same); compare Plantation Pipe Line Co., supra at 312 (2) (notice not a precondition to coverage where policy included no statement requiring insured to comply with policy terms before maintaining an action against insurer).

       See Plantation Pipe Line Co., supra at 307-308 (1) (b) (insured failed to comply with notice provision in umbrella insurance policy where it waited more than two years after realizing its liability exposure exceeded limits of primary insurance to notify excess carrier of occurrence); Lankford, supra at 15 (“[T]he failure to notify an insurer of an accident for almost two years amounts to an unreasonable delay as a matter of law.”) (citations omitted); Aegis Security Ins. Co. v. Hiers, 211 Ga. App. 639, 640 (440 SE2d 71) (1994) (insurance company entitled to summary judgment where evidence showed that it did not learn about incident giving rise to claim until 22 months after incident occurred; notification delay unreasonable as a matter of law because policy required insured to give “notice of an insurable event as soon as practicable” and insured offered no justification for failing to provide timely notice).

       See Lankford, supra; Aegis Security Ins. Co., supra.


author: Branch, Judge.

text:
    A16A0323.
    MARTINEZ v. THE STATE.
    (787 SE2d 308)
   Branch, Judge.

Marco Martinez appeals from a judgment of conviction and the denial of his motion for new trial. He was convicted of robbery by sudden snatching, four counts of forgery in the first degree, and giving a false name to law enforcement. On appeal, he contends that the evidence was insufficient to support the conviction of robbery, that the rule of lenity should be applied to his convictions of forgery, and that he received ineffective assistance of counsel. F or the reasons shown below, we affirm his convictions of robbery and giving false information to law enforcement, but we reverse his convictions of forgery and remand for resentencing on those counts.

On criminal appeal, appellant is no longer presumed innocent and all of the evidence is to be viewed in the light most favorable to the jury verdict. This Court does not reconsider evidence or attempt to confirm the accuracy of testimony. Assessing a witness’s credibility is the responsibility of the factfinder, not this Court.

Batten v. State, 295 Ga. 442, 443 (1) (761 SE2d 70) (2014) (citations omitted). Instead, we review the case “to determine if the evidence, when viewed in the light most favorable to the prosecution, supports the verdict.” Willis v. State, 263 Ga. 597, 598 (1) (436 SE2d 204) (1993), citing Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). Upon review of 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.” Russu v. State, 321 Ga. App. 695, 696 (1) (742 SE2d 511) (2013) (punctuation and footnote omitted; emphasis in original).

The evidence presented at trial shows that on December 27, 2009, Rhonda Danyus and her husband stopped at a rest area in Turner County. At approximately 3:00 a.m., Danyus was in a stall in the ladies’ room when a person, who Danyus testified was wearing a red “sweater-type” jacket, reached under the stall divider from the next stall, grabbed Danyus’s purse, and left. Danyus screamed, and David Bowling, who had also stopped at the rest area, heard the screams, saw a man exiting the ladies’ room with a woman’s purse, and yelled for the man to stop. The man took off running, and Bowling and his two sons, who had heard the commotion, began to chase the man, who was wearing a red sweatshirt. Bowling’s sons caught up to the person in the red sweatshirt, tackled him, and brought him back to the rest area. When asked if the man who his sons brought back was wearing the same type of clothes that he saw on the man with the purse, David Bowling testified, “Oh, yes, it was the same individual.” The police eventually arrived, took the man into custody, and Danyus identified the red sweatshirt as being the same the robber wore. Officers then followed the trail of the chase and found Danyus’s purse. The man the officers took into custody was Martinez, the appellant. When Martinez was booked into jail, he gave his name as “Oscar Cuello” and signed several booking-related documents with that name. The officers also found a fake Social Security card in Martinez’s possession; the card was also in the name “Oscar Cuello.”

Martinez was indicted as follows: Count 1 — robbery by sudden snatching (OCGA § 16-8-40 (a) (3)); Counts 2-5 — forgery in the first degree for using a fictitious name on four separate documents (OCGA § 16-9-1 (b)); and Count 6 — making a false statement by providing a false name “throughout the booking and investigation process surrounding a robbery” (OCGA § 16-10-20). Martinez was not charged with a crime arising out of his possession of a Social Security card in the name of Oscar Cuello.

At trial, Martinez did not contest that he gave a false name to the officers and on the documents, and the jury found Martinez guilty on all counts. He was sentenced to 20 years for robbery, 10 years on Count 2 to run consecutive to Count 1, 10 years on each of Counts 3 through 5 to run concurrently with Count 2, and 5 years on Count 6 to run concurrently with Count 2, for a total of 30 years with 15 to serve and 5 on probation. Martinez moved for a new trial, which, following a hearing, the trial court denied with one exception; the Court held that the rule of lenity required that on Count 6, Martinez be sentenced for the misdemeanor offense of providing false information to law enforcement under OCGA § 16-10-25. Accordingly, the court resentenced Martinez on Count 6 to 12 months to serve concurrent with Count 2.

1. Construed in favor of the verdict, the evidence was sufficient to support the conviction of robbery by sudden snatching; Martinez does not challenge the sufficiency on the remaining counts. Martinez’s argument on appeal is that no witness ever identified him as the person who took the purse and that the circumstantial evidence that he did so was insufficient to exclude every other reasonable hypothesis save that ofthe guilt ofthe accused as requiredby OCGA § 24-14-6 (“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that ofthe guilt ofthe accused.”). But the evidence showed that at 3:00 a.m. at a rest area, a man in a red jacket or sweater stole a purse from the restroom, that he was seen leaving the bathroom with the purse, that the same man was chased and caught, that he was wearing a red jacket, that the purse was found on the route of the chase, that no evidence was presented to show that there were other men in red in the immediate vicinity, that Martinez gave a false name to the officers investigating the crime, and that Martinez was the man chased and arrested that night. This circumstantial evidence was sufficient to identify Martinez as the person who took the purse. See Ware v. State, 198 Ga. App. 24, 25-26 (1) (400 SE2d 384) (1990) (circumstantial evidence was sufficient to identify the defendant as the burglar, which included that defendant was found walking near, in place and time, to burglarized residence; that he lied about his identity and produced a stolen driver’s license; that he gave three different, stories about his conduct; that he was in an area of houses and woods at about 7:00 a.m. not near a purported job; that a boot print was found at the victim’s home and the defendant was wearing boots; and that the defendant had a knife with a piece of wire on it, and a telephone wire had been cut at the victim’s residence).

2. Martinez contends the trial court erred by not applying the rule of lenity to Counts 2 through 5. He contends he should have been sentenced under OCGA § 16-10-20 for making a false statement or writing, which carries a punishment of imprisonment for one to five years and a fine, rather than under OCGA § 16-9-1 (b) for forgery in the first degree, which, at the time of Martinez’s conviction, carried a punishment of imprisonment for one to ten years.

The Supreme Court recently described the rule of lenity as follows:

When the statutory law establishes different punishments for the same offense, courts sometimes apply the rule of lenity to resolve the statutory ambiguity. Properly applied, the rule of lenity directs the courts to resolve such ambiguities in favor of a defendant, according the defendant the benefit of the doubt about what punishment the law authorizes in his case, and presuming that the law was meant only to permit the lesser punishment. Although the rule of lenity perhaps has been applied in Georgia most commonly when the statutory law established both felony and misdemeanor punishments for the same offense, its application is not limited to that particular circumstance.

Rollf v. Carter, 298 Ga. 557 (784 SE2d 341) (2016) (citations and footnote omitted). “Of course, if it is determined after applying the traditional canons of construction that the relevant statutory text is unambiguous, then the rule of lenity will not apply” McNair v. State, 326 Ga. App. 516, 518-519 (757 SE2d 141) (2014) (footnote omitted). “The fundamental inquiry [when assessing whether the rule of lenity applies] is whether the identical conduct[, meaning the specific conduct with which the defendant was charged,] would support a conviction under either of two [criminal statutes] with differing penalties.” Id. at 519 (footnote omitted).

Here, Martinez was charged with four counts of forgery in that he did

unlawfully, with intent to defraud, knowingly make a signature on the signature line of [each of four separate documents], a writing, in the fictitious name of Oscar Cuello, and did utter and deliver said writing to the Turner County Sheriff’s Department.

As defined at the time of the underlying offenses, the offense of forgery in the first degree occurred when,

with intent to defraud [a person] knowingly ma[de], alter [ed], or possesse[d] any writing in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority and utters or delivers such writing.

See OCGA § 16-9-1 (2012). The offense of making a false statement or writing occurs when a person

knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact; makes a false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document, knowing the same to contain any false, fictitious, or fraudulent statement or entry, in any matter within the jurisdiction of any department or agency of state government or of the government of any county, city, or other political subdivision of this state[.]

OCGA § 16-10-20. Although the State argues that OCGA § 16-10-20 does not require a showing of “intent to defraud” like the forgery statute, OCGA § 16-10-20 requires the equivalent in that it requires the State to prove that the person knowingly and willingly engaged in concealing material facts, making fraudulent statements, or falsifying documents knowing them to be false or fraudulent. Moreover, as the Supreme Court has explained, OCGA § 16-10-20 carries a mens rea requirement that “requires a defendant to know and intend, that is, to contemplate or expect, that [the prohibited conduct] will come to the attention of a state or local department or agency with the authority to act on it.” Haley v. State, 289 Ga. 515, 521 (2) (b) (712 SE2d 838) (2011). And that, thereby, the prohibited conduct “threatens to deceive and thereby harm the government.” Id. at 528 (2) (c) (citation omitted). Thus, although OCGA § 16-10-20 does not specifically state that the defendant must have acted with “intent to defraud” as is stated in the forgery statute, OCGA § 16-10-20 requires proof of the same mens rea.

Thus, an examination of the plain meaning of the statutory language of the two crimes at issue shows that the specific conduct with which Martinez was charged would support a conviction under either of two crimes, thereby creating an ambiguity regarding the crime for which Martinez should be punished. See Brown v. State, 276 Ga. 606, 608 (1), (2) (581 SE2d 35) (2003) (rule of lenity applied where “[u] sing the same evidence, a reasonable trier of fact could have found beyond a reasonable doubt that [the defendant’s] conduct violated either” of two statutes with different punishments). Under OCGA § 16-9-1 (b), Martinez was guilty of intending to defraud the sheriff’s department by knowingly making four writings in a fictitious name. Under OCGA § 16-10-20, Martinez was guilty of knowingly and wilfully making a false statement of his name, in four writings, with the intent to deceive a government entity, i.e., the sheriff’s department. The State does not argue that a rule of construction would resolve the above ambiguity, and we find no such rule. Therefore, because these two statutes provide for different, penalties for the same conduct at issue in this case, the rule of lenity applies, and Martinez must be resentenced accordingly See McNair, 326 Ga. App. at 521. We therefore reverse Martinez’s conviction on four counts of forgery in the first degree and remand for resentencing under OCGA § 16-10-20. Id. See also Gee v. State, 225 Ga. 669, 676 (7) (171 SE2d 291) (1969) (“Where any uncertainty develops as to which penal clause is applicable, the accused is entitled to have the lesser of two penalties administered.”) (citation and punctuation omitted).

3. Martinez contends his trial counsel was ineffective. To prevail on this claim, a defendant must prove both that his lawyer’s performance was deficient and that he suffered prejudice as a result of this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). If he or she cannot meet the burden of proving either prong of the Strickland test, then we need not examine the other prong. Battles v. State, 290 Ga. 226, 229 (2) (719 SE2d 423) (2011).

With respect to the first prong, deficient performance, the defendant must show that his attorney performed his duties at trial in an objectively unreasonable way, considering all the circumstances, and in light of prevailing professional norms. Strickland, 466 U. S. at 687-688 (III) (A). To demonstrate that he suffered prejudice, a defendant must prove “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Areasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694 (III) (B). “This burden, though not impossible to carry, is a heavy one.” Arnold v. State, 292 Ga. 268, 270 (2) (737 SE2d 98) (2013), citing Kimmelman v. Morrison, 477 U. S. 365, 382 (II) (C) (106 SCt 2574, 91 LE2d 305) (1986). On appeal “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” Suggs v. State, 272 Ga. 85, 88 (4) (526 SE2d 347) (2000) (footnote omitted).

(a) Martinez contends that trial counsel was ineffective by failing to object to evidence that he possessed a forged Social Security card, which, he asserts, constituted improper character evidence. Although Martinez was not charged with a crime arising out of the Social Security card, the State introduced the card as a part of its case-in-chief without objection by Martinez’s trial counsel. The State further established that the card, in the name of Oscar Cuello, was not legitimate and that the Social Security number was not in use. The officer who testified about the card also testified that he determined that Oscar Cuello was not the defendant’s real name. At the hearing on the motion for new trial, trial counsel testified that he did not think the card would make any difference in the case. We agree. Although Martinez could have objected to this information, given that he admitted that he gave a false name to the officers and only contested the facts regarding the robbery, we conclude that he has failed to establish a reasonable probability that, if his counsel had objected to the introduction of the Social Security card, the result of the proceeding would have been different,. See generally Young v. State, 292 Ga. 443, 445 (3) (738 SE2d 575) (2013).

(b) Martinez also contends that trial counsel was ineffective by failing to prepare adequately for trial. At the hearing on the motion for new trial, trial counsel testified that he met with Martinez three or four times prior to trial; that some of the witnesses lived in Florida and Kentucky; and that he interviewed two or three witnesses at the courthouse just prior to trial. Counsel did not recall if he spoke to any of the law enforcement witnesses. Also, the record reflects that trial counsel filed a discovery motion, a motion for a preliminary hearing, a non-particularized motion to suppress, a motion reserving the right to file additional motions, and a motion for new trial.

Decided June 9, 2016.

Lon P. Kemeness, for appellant.

C. Paul Bowden, District Attorney, Jennifer D. Hart, Assistant District Attorney, for appellee.

Martinez makes general assertions that his trial counsel should have done more, but at the hearing on the motion for new trial, he did not proffer what additional investigation would have revealed nor how any such information could have led to a different result. Thus Martinez failed to proffer any witnesses or other evidence to show how additional preparation would have led to useful information for trial. “In the absence of offering such evidence at the motion for new trial hearing, appellant cannot show prejudice.” Powell v. State, 297 Ga. 352, 357 (5) (d) (773 SE2d 762) (2015) (citations omitted).

Judgment affirmed in part and reversed in part, and case remanded for resentencing.

Ellington, P. J., and Mercier, J., concur.

       See Ga. L. 2012, p. 899, § 3-5, eff. July 1, 2012.

       The case upon which the State relies, Quaweay v. State, 274 Ga. App. 657, 658 (618 SE2d 707) (2005), is inapposite. In that case, the defendant argued that the rule of lenity should be applied to require sentencing under the crime of making a false statement to a police officer rather than for forgery in the first degree. But the defendant in Quaweay was charged with forgery for signing a false name to documents during his arrest, whereas the crime of making false statements to an officer, OCGA § 16-10-25, did not require proof of a writing. Id.


author: DOYLE, Chief Judge.

text:
    A16A0497, A16A0498.
    WILLIAMS v. THE STATE (two cases).
    (787 SE2d 333)
   DOYLE, Chief Judge.

Stacey Donnell Williams was charged in Gwinnett County Superior Court with two unrelated counts of armed robbery. After the charges were severed, Williams was convicted on Count 2, and he entered a negotiated guilty plea as to Count 1. InCase No. A16A0497, Williams appeals the trial court’s denial of his motion for new trial as to Count 2, arguing that (a) his constitutional right to be present was violated when he was absent from a calendar call; (b) he was entitled to a discharge and acquittal because the State failed to comply with his speedy trial demand; and (c) trial counsel was ineffective by failing to move for discharge and acquittal and by failing to object to certain evidence going out with the jury In Case No. A16A0498, Williams appeals the denial of his motion to withdraw his guilty plea as to Count 1, arguing that (a) the strength of the evidence did not negate his innocence; (b) trial counsel was ineffective by recommending that he accept the plea and by failing to move for discharge and acquittal; and (c) he was entitled to discharge and acquittal because the State failed to comply with his statutory speedy trial demand. For the reasons that follow, we affirm both cases.

Viewed in favor of the verdict, the record shows that on August 31, 2012, Franshaun Colvin called Williams and asked to purchase drugs from him. As arranged, Colvin took the bus to a gas station in Gwinnett County, where Williams picked him up and drove him to an apartment complex. When they arrived at the complex, Williams left Colvin in the car and went upstairs, stating that he was going to meet a friend. Williams returned to the car five minutes later, pointed a small silver or chrome handgun at Colvin, and demanded his money Colvin complied, and Williams drove away.

Colvin tried to find Williams’s apartment, but called the police when he was unable to locate it. When he first relayed to police the events of the robbery, Colvin omitted that he intended to purchase drugs from Williams, but he then conceded that he was meeting Williams to do so. Police obtained a search warrant for Williams’s residence, where they found a small, silver handgun concealed behind the couch.

On December 5, 2012, in a single indictment, the State charged Williams with two counts of armed robbery: Count 1 alleged that on July 31,2012, Williams and a co-defendant committed armed robbery of Matthew Barrett; Count 2 alleged the August 31, 2012 armed robbery of Colvin. On January 7, 2013, Williams’s appointed counsel, Thomas Wight, filed a statutory demand for speedy trial.

On March 22, 2013, Wight moved to withdraw as counsel for Williams, stating that he was taking an extended absence from the practice of law beginning April 1, 2013, and that attorney Dawn Belisle had agreed to defend Williams. Belisle later testified that she agreed to represent Williams on the express condition that Williams withdraw his speedy trial demand, and Wight agreed, telling her that Williams was going to do so. Belisle told Williams that she was going to request a continuance, and he agreed.

On April 16, 2013, Belisle appeared at a calendar call on Williams’s behalf, where the following colloquy ensued:

[PROSECUTOR]: Your Honor, the next case is Stacey Donnell[ ] Williams, 12-B-5923-7. Your Honor, it is my understanding that the Speedy Trial Demand has been withdrawn on that case.
[BELISLE]: Correct, Judge. And as the [c]ourt knows, afterin-heriting this case, I would ask for a continuance on this case.
[TRIAL COURT]: Yes, I just did an order appointing you when Mr. [Wight] withdrew[,] so I’ll continue that one and give you a chance to catch up. . . .

Thereafter, on April 22, 2013, the trial court entered an order granting Wight’s motion to withdraw and appointing Belisle to defend Williams.

In December 2013, Williams was tried by a jury on Count 1 only, but the trial court entered a mistrial after the jury was unable to reach a verdict. In May 2014, Williams was tried by a jury on Count 2, and they found him guilty of armed robbery. On June 10, 2014, Williams filed his initial motion for new trial.

On June 25, 2014, Williams was re-indicted for the July 31, 2012 armed robbery of Matthew Barrett (Count 1 on the original indictment). On March 19, 2015, the trial court sentenced Williams to serve 15 years in prison as to Count 2. On March 17, 2015, Williams entered an Alford plea to robbery as a lesser included offense of the newly indicted armed robbery charge, and he was sentenced to serve five years concurrent with his sentence in the first indictment.

On May 28, 2015, Williams, through newly appointed counsel, moved to withdraw his plea. On September 28, 2015, following a hearing, the trial court denied Williams’s motion for new trial, and on October 9, 2015, it entered an order denying his motion to withdraw his guilty plea. These appeals followed.

Case No. A16A0497

In several enumerations of error, Williams contends that the trial court erred by denying his motion for new trial as to his armed robbery conviction in Count 2.

1. Williams argues that he was entitled to a discharge and acquittal on Count 2 because the State failed to comply with his statutory speedy trial demand, which he contends was never actually withdrawn. We disagree.

As aforementioned, after meeting with Williams and getting his approval for a continuance, Belisle appeared on his behalf at the April 16, 2013 calendar call and orally informed the trial court that Williams had withdrawn his speedy trial demand. This representation resulted in a waiver of Williams’s demand for speedy trial, notwithstanding the fact that Williams was not present at the calendar call. In so holding, we reject Williams’s argument that he “did not have valid legal counsel” at the April 16, 2013 calendar call. Wight had filed a motion to withdraw, specifically indicating therein that Belisle was willing to defend Williams, Williams had met with Belisle and agreed to a continuance, Belisle appeared on Williams’s behalf at the calendar call, making representations on his behalf, including requesting a continuance, and the trial court specifically stated at the calendar call that he had “[done]” an order appointing Belisle as counsel. Under these circumstances, we conclude that Belisle represented Williams at that proceeding despite the fact that the court did not enter the written order appointing her until April 22, 2013.

2. Williams argues that his constitutional right to be present at trial was violated when he was not in the courtroom at the April 16, 2013 calendar call. We find no basis for reversal.

The federal and Georgia Constitutions demand that a criminal defendant has a right to be present at all critical stages of the proceedings against him. A critical stage in a criminal prosecution is one in which a defendant’s rights may be lost, defenses waived, privileges claimed or waived, or one in which the outcome of the case is substantially affected in some other way Although denial of the federal constitutional right to be present is subject to harmless error review on direct appeal, the same is not true for claims of violation of the right to be present under the Georgia Constitution. Even so, this right exists where there is a reasonably substantial relation to the fullness of opportunity to defend against the charge and to the extent that a fair and just hearing would be thwarted by the defendant’s absence.

Further,

the constitutional right to be present is not violated when the defendant’s absence occurs during conferences addressing legal matters to which the defendant cannot make a meaningful contribution. . . . [T]he right is waived if the defendant personally waives it in court; if counsel waives it at the defendant’s express direction; if counsel waives it in open court while the defendant is present; or if counsel waives it and the defendant subsequently acquiesces in the waiver.

Here, Belisle testified at the hearing on the motion for new trial that she met with Williams before she appeared on his behalf at the calendar call, and he agreed to a continuance. Because Williams has failed to prove that “his absence on April [13], standing alone, substantially affected the outcome of the case such that it could be considered a critical stage of the proceedings” or that he ever objected to his absence, we find no reversible error.

3. Williams contends that trial counsel was ineffective by failing to move for a discharge and acquittal based on the State’s failure to comply with his speedy trial demand and by failing to object to certain evidence going out with the jury

To establish that his trial counsel was constitutionally ineffective, [Williams] was required to prove both deficient performance by counsel and resulting prejudice. To prove deficient performance, [Williams] had to demonstrate that counsel performed [her] duties in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. Because judicial scrutiny of counsel’s performance must be highly deferential, the law recognizes a strong presumption that counsel performed reasonably, and the defendant bears the burden of overcoming this presumption. To carry this burden, [Williams] must show that no reasonable lawyer would have done what his counsel did, or failed to do what his counsel did not do. In particular, decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course. Even if a defendant can prove that his counsel’s performance was deficient, he must also prove prejudice by showing a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. It is not enough to show that the errors had some conceivable effect on the outcome of the proceeding. Rather, the defendant must demonstrate a reasonable probability of a different, result, which, the United States Supreme Court has explained, is a probability sufficient to undermine confidence in the outcome.

(a) Williams’s contention that trial counsel was ineffective by failing to move for discharge based on the State’s failure to comply with his speedy trial demand is without merit. As we held in Division 1, trial counsel effectively verbally withdrew the demand at the April 16, 2013 calendar call. Thus, any motion for discharge on this basis would have been denied. “[T]he failure to make a meritless motion or objection does not provide a basis upon which to find ineffective assistance of counsel.”

(b) Williams also asserts that trial counsel was ineffective by failing to object when the trial court allowed a printout of text messages from Williams’s phone to go out with the jury during deliberations in violation of the continuing witness rule. The printout included an outgoing message from Williams’s phone made five days after the robbery, stating “I’ll just go back to robbing.”

The continuing witness objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once.

“The types of documents that have been held subject to the rule include affidavits, depositions, written confessions, statements, and dying declarations. These documents, which generally contain their makers’ assertions of purported truths, are ascribed evidentiary value only to the extent that their makers are credible.” “Georgia law permits letters admitted into evidence to go out with the jury.”

Pretermitting whether the text messages were written testimony subject to the continuing witness rule, given that the evidence contained in the text was also brought out during the trial and given the overwhelming evidence of Williams’s guilt, including Colvin’s testimony and the silver handgun found at Williams’s house, Williams has failed to demonstrate that but for trial counsel’s failure to object to the messages going out with the jury during deliberations there is a reasonable probability that the outcome of the trial would have been different,.

Case No. A16A0498

In this case, Williams asserts that trial counsel erred by denying his motion to withdraw his guilty plea. We find no basis for reversal.

4. Williams contends that the trial court erred by accepting his negotiated Alford guilty plea because the strength of the State’s evidence did not substantially negate his innocence. We disagree.

Alford permits a criminal defendant to plead guilty while claiming to be innocent, where the defendant intelligently concludes that it is in his best interest to enter such a plea, but the plea is one of guilt and may be accepted only if the court determines there is a factual basis for a determination of guilt.

Here, the trial court had already presided over the first trial in this case, which resulted in a hung jury At the plea hearing, the prosecutor reminded the court of the evidence, including that the co-defendant, Jerome Welch, went to the victim’s home, where Welch spent approximately 15-20 minutes texting on his cell phone. Welch then left, and when he returned, a second man pushed his way inside the home behind Welch, produced a gun, and took money and a debit card from the victim. The subsequent police investigation revealed that Williams was one of the persons with whom Welch was texting while Welch was in the victim’s home, and when police found Williams, he was in possession of a vehicle matching the description given by one of the victims, as well as a silver handgun matching the description of the gun used by the second robber. Cell tower records confirmed that Williams’s phone was at or near the area of the victim’s apartment at the time of the robbery

After this factual recitation at the plea hearing, Williams affirmatively stated on the record that he wished to enter a guilty plea to the reduced charge of robbery, responding affirmatively when the trial court asked:

You’re entering your plea as an Alford plea. Your attorney has explained that to you. I’m assuming what that means, an Alford plea meaning that you’re not[ ] specifically admitting guilt; however, you understand what the evidence is, and rather than have another trial in your case and risk being convicted after trial and sentenced after trial, you believe it’s in your best interest at this point in time to plead and receive the negotiated sentence?

Thus, the record “provided ample information from which the trial court could discern that the facts alleged by the State actually satisfied the elements of the charges to which [Williams] was pleading guilty. Consequently, the superior court did not err in accepting [Williams’s] Alford pleas. . . .”

Decided June 9, 2016

Frances C. Kuo, for appellant.

5. Williams further contends that trial counsel was ineffective by recommending that he enter the negotiated plea.

Once a sentence has been entered, a guilty plea may be withdrawn only to correct a manifest injustice. Where, as here, the defendant bases his motion to withdraw on an ineffective assistance of counsel claim, he bears the burden of showing that his attorney’s performance was deficient and that, but for counsel’s errors, a reasonable probability exists that he would have insisted on a trial.

Here, Williams did not testify at the hearings on his motion to withdraw his guilty plea or his motion for new trial. Thus, Williams failed to “produce any affirmative evidence . . . that but for his counsel’s purportedly ineffective assistance, he would have insisted on going to trial.... Absent a showing of any prejudice, the trial court did not abuse its discretion [by] denying [Williams’s] motion to withdraw his guilty plea.”

6. For the reasons stated in Division 2, there is no merit to Williams’s argument that the trial court erred by denying his motion to withdraw his guilty plea because he was entitled to a discharge based on the State’s failure to comply with his speedy trial demand. Further, by entering his guilty plea, Williams waived his right to a speedy trial.

7. Finally, for the reasons stated in Division 3 (a), there is no merit to Williams’s contention that trial counsel was ineffective by failing to move for a discharge and acquittal based on the State’s failure to comply with his speedy trial demand.

Judgments affirmed. Andrews,

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

Daniel J. Porter, District Attorney, Christopher M. Quinn, Robby King, Assistant District Attorneys, for appellee.

       OCGA § 16-8-41 (a).

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

       On March 31, 2015, the trial court entered an amended sentence reflecting the State’s nolle prosequi on Count 1, for which Williams had been re-indicted.

        North Carolina v. Alford, 400 U. S. 25 (91 SCt 160, 27 LE2d 162) (1970).

        See Armstrong v. State, 325 Ga. App. 33, 40 (7) (a) (752 SE2d 120) (2013) (“[A] It hough the record is unclear as to whether [the defendant] was present when his attorney made the announcement that she was withdrawing a demand for speedy trial, we know of no requirement that the client be present for the voluntary act by his counsel that results in such a waiver.”) (punctuation omitted), quoting Twiggs v. State, 315 Ga. App. 191, 200 (3) (726 SE2d 680) (2012). See also Burdett v. State, 285 Ga. App. 571, 573 (2) (646 SE2d 748) (2007) (holding that defendant effectively withdrew his speedy trial demand when his attorney filed a motion to withdraw his demand, notwithstanding defendant’s arguments that he did not know nor consent to the motion). We note that until he filed his motion for new trial, Williams took no steps to enforce the speedy trial demand, and he has offered no evidence that he ever objected to the withdrawal of the demand.

       (Citation and punctuation omitted.) Thomas v. State, 331 Ga. App. 641, 668 (11) (771 SE2d 255) (2015), citing Tennessee v. Lane, 541 U. S. 509, 523 (IV) (124 SCt 1978, 158 LE2d 820) (2004). See Smith v. State, 284 Ga. 599, 608 (4) (669 SE2d 98) (2008).

       (Citation and punctuation omitted.) Thomas, 331 Ga. App. at 668-669 (11).

       See id. at 669-670 (11).

       (Citations and punctuation omitted.) Smith v. State, 298 Ga. 406, 412 (3) (782 SE2d 269) (2016), quoting Strickland v. Washington, 466 U. S. 668, 687, 694 (104 SCt 2052, 80 LE2d 674) (1984).

        Hampton v. State, 295 Ga. 665, 670 (2) (763 SE2d 467) (2014). Compare Sloan v. Sanders, 271 Ga. 299, 299-300 (519 SE2d 219) (1999) (trial counsel was ineffective by failing to move for dismissal pursuant to a statutory speedy trial demand because counsel was unaware of the demand filed by previous counsel, and there was no evidence that the defendant waived the right).

       Because Williams’s trial was in 2014, Georgia’s new Evidence Code applies. See Ga. L. 2011, pp. 99, 214, § 101. We note that Williams limits his argument regarding the violation of the continuing witness rule to ineffective assistance of counsel; he does not argue that the trial court committed plain legal error by allowing the text messages to go back with the jury. See Goggins v. State, 330 Ga. App. 350, 352 (1) (a) (767 SE2d 753) (2014) (applying plain error analysis to cases tried after January 1, 2013).

       (Punctuationomitted.) Wilkins v. State, 291 Ga. 483, 487 (6) (731 SE2d 346) (2012), quoting Tibbs v. Tibbs, 257 Ga. 370 (359 SE2d 674) (1987).

       (Citation and punctuation omitted.) Davis v. State, 285 Ga. 343, 348 (8) (676 SE2d 215) (2009).

       (Punctuation omitted.) Porter v. State, 270 Ga. App. 860, 862 (2) (608 SE2d 315) (2004). See also Varner v. State, 297 Ga. App. 799, 805 (4) (678 SE2d 515) (2009) (holding that letters to and from the defendant and his accomplice “were not written testimony, but instead constituted original documentary evidence, circumstantial in nature, of [the defendant’s] involvement in the crime at issue. As such, they were not subject to a continuing witness objection.”).

       See McKenzie v. State, 300 Ga. App. 469, 473 (3) (685 SE2d 333) (2009) (“[E]ven if a violation [of the continuing witness rule] did occur in this case, . . . [g] iven the facts that the evidence contained in the summaries was also brought out during the trial and the evidence of guilt was overwhelming, it is highly probable that... the jury’s view of [the] ... exhibits did not contribute to the verdict.”) (footnote omitted); Fosselman v. State, 306 Ga. App. 84, 86-87 (2) (a) (701 SE2d 559) (2010) (even if trial counsel was deficient for failing to assert a continuing witness objection, defendant must demonstrate prejudice to warrant reversal).

       (Punctuation omitted.) Harpe v. State, 254 Ga. App. 458, 459-460 (1) (562 SE2d 521) (2002), quoting Thompson v. State, 237 Ga. App. 466, 468 (2) (517 SE2d 339) (1999).

       At the initial trial in this case, the victim identified Welch, but was unable to identify Williams, and Welch did not testify for the State against Williams.

       (Citation and punctuation omitted.) Harpe, 254 Ga. App. at 460-461 (3), quoting Green v. State, 265 Ga. 263, 265 (2) (454 SE2d 466) (1995).

       (Punctuation omitted.) Phillips v. State, 329 Ga. App. 279, 281 (2) (764 SE2d 879) (2014), quoting Williams v. State, 307 Ga. App. 780 (706 SE2d 82) (2011).

       (Citation and punctuation omitted.) Phillips, 329 Ga. App. at 282 (2) (b).

       See Griffin v. State, 278 Ga. 669 (604 SE2d 155) (2004) (“Having voluntarily entered a plea of guilty, appellant cannot raise as a defense his right to a speedy trial.”), citing Mason v. Banks, 242 Ga. 292, 293 (2) (248 SE2d 664) (1978).


text:
    A16A0512.
    THE STATE v. MARTIN.
    (787 SE2d 314)
   ANDREWS, Presiding Judge.

Following his arrest and subsequent accusation for possession of marijuana (OCGA § 16-13-30 (j) (1)) and possession of a drug related object (OCGA § 16-13-32.2 (a)), Charles Martin III filed a pretrial motion to suppress evidence obtained following pre-arrest questioning by a sheriff’s deputy. After a hearing on Martin’s motion, the State Court of Fayette County entered an order granting the motion to suppress. The State appeals, arguing that the deputy’s questioning of Martin, and Martin’s disclosure of incriminating evidence, did not elevate their encounter from a first-tier police-citizen encounter to a second-tier encounter requiring articulable suspicion. See OCGA § 5-7-1 (a) (4). We agree and reverse.

As a threshold matter, our review of a trial court’s order concerning a motion to suppress evidence is governed by three fundamental principles:

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.

Stokes v. State, 238 Ga. App. 230 (518 SE2d 447) (1999). See also Miller v. State, 288 Ga. 286 (1) (702 SE2d 888) (2010); Tate v. State, 264 Ga. 53 (440 SE2d 646) (1994); Myers v. State, 333 Ga. App. 755, 756 (777 SE2d 44) (2015). These principles apply equally to trial court decisions both in favor of and against defendants. See Miller, 288 Ga. at 286-287. However, in our review of orders concerning motions to suppress, a trial court’s “application of the law to undisputed facts is subject to de novo review.” (Citation and punctuation omitted.) State v. Walker, 295 Ga. 888, 889, n. 1 (764 SE2d 804) (2014). See also State v. LeJeune, 327 Ga. App. 327 (759 SE2d 53) (2014) (“we owe ‘no deference to the trial court’s conclusions of law’ and are instead ‘free to apply anew the legal principles to the facts.’ ”).

Generally, the relevant facts as found by the trial court are not in dispute. On September 10, 2013, a Fayette County Sheriff’s deputy received a dispatch concerning loud music coming from a suspicious vehicle at 235 Windsor Drive in Fayetteville. The dispatch included a description of the vehicle as a “dark, black in color, passenger vehicle, possibly an Acura” and a tag number. While en route to 235 Windsor Drive, the deputy spotted a “dark in color, black, Acura” parked in the driveway of 155 Windsor Drive. The tag number matched the number he received from dispatch. Two white males were standing next to the vehicle. The deputy stopped and asked the men if they had been parked further down the road and whether they had been listening to loud music. Martin, the driver, denied playing loud music but did state that he had been talking on his cellular telephone. The deputy then asked what the two were doing in the driveway. Martin replied that he had stopped to deliver a school book to a friend and that the two were talking.

Next, the deputy asked Martin “if anything was in the vehicle that [the deputy] need[ed] to know about or be concerned about.” Martin responded, “yes.” When the deputy asked what was in the car, Martin stated that there was “some marijuana and a pipe.” The deputy asked Martin to retrieve the items, and Martin produced a small bag containing a green leafy substance and a glass pipe and placed them on the roof of the vehicle. At that point, the deputy asked Martin to stand behind the vehicle and placed Martin under arrest for possession of marijuana and possession of a drug related object. The trial court concluded that

[o]nce [the deputy] began asking about the contents of the vehicle and whether there was anything he should know about the contents, the encounter became second tier. [Martin] did not volunteer that he had marijuana and a pipe in his vehicle, but responded to a direct question from [the deputy].

(Emphasis supplied.) As a result, the trial court granted Martin’s motion to suppress.

As we have noted previously,

[a]t least three types of police-citizen encounters exist: verbal communications involving no coercion or detention; brief “stops” or “seizures” that require reasonable suspicion; and “arrests,” which can only be supported by probable cause. A first-tier encounter never intrudes upon any constitutionally protected interest, since the purpose of the Fourth Amendment is not to eliminate all contact between police and citizens, but simply to prevent arbitrary and oppressive police interference with the privacy and personal security of individual citizens. On the other hand, a second-tier encounter may violate the Fourth Amendment if the officer briefly “stops” or “seizes” a citizen without an articulable suspicion. Articulable suspicion requires a particularized and objective basis for suspecting that a citizen is involved in criminal activity.

Stokes, 238 Ga. App. at 231-232. See also Foster v. State, 285 Ga. App. 441, 442 (646 SE2d 302) (2007); State v. Westmoreland, 204 Ga. App. 312 (1) (418 SE2d 822) (1992). “It is well established that an officer’s approach of a stopped vehicle and inquiry as to what is going on does not constitute a stop or seizure and clearly falls within the realm of the first type of police-citizen encounter.” (Citation and punctuation omitted.) Whitmore v. State, 289 Ga. App. 107, 109 (657 SE2d 1) (2008); Chapman v. State, 279 Ga. App. 200, 202 (1) (630 SE2d 810) (2006). See also Walker, 295 Ga. at 890-891. In this case, the sheriff’s deputy approached Martin and another man standing next to a parked vehicle that matched the description of a suspicious vehicle in the neighborhood. The deputy approached Martin and asked if they had been playing loud music and what the two were doing. There is no evidence that the deputy “initially either restrained [Martin’s] movement by means of physical force or show of authority, or that the deputy prevented [Martin’s] vehicle from driving away during this initial encounter.” Chapman, 279 Ga. App. at 202 (1). As a result, the trial court correctly found that the deputy’s initial questioning constituted a first-tier encounter.

However, contrary to the trial court’s analysis, the deputy’s question concerning whether “anything was in the vehicle that [the deputy] need[ed] to know about or be concerned about” did not escalate the encounter to the second tier. Of particular relevance, “[e]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual’s identification; and request consent to search — as long as the police do not convey a message that compliance with their requests is required.” (Emphasis supplied.) Foster, 285 Ga. App. at 443; Stokes, 238 Ga. App. at 232. Here, the trial court found that “[o]nce [the deputy] began asking about the contents of the vehicle and whether there was anything he should know about the contents, the encounter became second tier.”

Decided June 9, 2016.

JamieK. Inagawa, Solicitor-General, Joseph B. Myers, Jr., Assistant Solicitor-General, for appellant.

Cook Law Firm, B. Thomas Cook, Jr., Lubin C. An, for appellee.

In this case, the deputy’s inquiry, which Martin was free to decline, does not even rise to the level of requesting consent to search — which itself would have been permitted during a first-tier encounter. See Foster, 285 Ga. App. at 443; Stokes, 238 Ga. App. at 232; Westmoreland, 204 Ga. App. at 312 (1) (merely approaching individual to request consent to search does not constitute a seizure). Rather than terminate the encounter, as was his right, Martin offered an honest response to the deputy’s question. The trial court’s attempt to distinguish between Martin “volunteer [ing] that he had marijuana and a pipe in his vehicle” and Martin “responding] to a direct question” the deputy was lawfully permitted to ask during a first-tier encounter is a distinction without a meaningful difference. See Whitmore, 289 Ga. App. at 109 (encounter remained first tier when officer “requested that [the drivers] move their vehicles to a parking lot . . . so as to avoid impeding traffic and to ensure greater safety”) (emphasis supplied); Stokes, 238 Ga. App. at 232 (“Asking an individual to step outside for safety reasons is a permissible action that does not rise to the level of a seizure.”) (emphasis supplied). In short, if the deputy could ask for consent to search during a first-tier encounter, then he could ask the more innocuous question of whether the vehicle contained anything about which he should be concerned. Accordingly, we conclude that the deputy’s inquiry concerning the contents of what had been reported as a suspicious vehicle was permissible during a first-tier police-citizen encounter. See Whitmore, 289 Ga. App. at 109; Foster, 285 Ga. App. at 443; Stokes, 238 Ga. App. at 232; Westmoreland, 204 Ga. App. at 312 (1). Because the trial court concluded that the deputy’s question elevated the nature of his encounter with Martin to a second-tier encounter requiring articu-lable suspicion, the trial court erred. As a result, we reverse.

Judgment reversed.

Doyle, C. J., and Ray, J., concur.

       Although the trial court made no specific finding of fact on Martin’s ability to terminate the encounter, the deputy testified that Martin was “free to leave had [he] so chosen, and no other evidence indicated otherwise.” See Whitmore, 289 Ga. App. at 109.