author: Phipps, Presiding Judge.

text:
    A12A1096.
    COX v. THE STATE.
    (732 SE2d 321)
   Phipps, Presiding Judge.

After a bench trial in which he represented himself, Elree Cox was convicted of three counts of aggravated assault, two counts of terroristic threats, and one count of false imprisonment. He appeals, asserting that his waiver of the right to be represented at trial by counsel was not knowing and intelligent. Because the trial court did not abuse its discretion in finding that Cox’s waiver of the right to counsel was valid, we affirm.

Cox contends that he did not knowingly and intelligently waive his right to counsel because he “was not sufficiently made aware of the inherent dangers of self-representation at trial.”

A criminal defendant facing imprisonment has a Sixth Amendment right to assistance of counsel at trial, but the defendant also has a fundamental right to represent himself when he voluntarily and intelligently elects to do so. The determination of whether there has been an intelligent waiver of the right to counsel must depend . . . upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. The trial judge has the serious and weighty responsibility of determining whether the accused has intelligently waived his right to counsel.

The trial court’s ruling as to whether the defendant’s waiver of the right to counsel was valid is reviewed for abuse of discretion.

In order to determine whether a defendant has validly waived his right to an attorney, this Court generally inquires into whether the trial court has advised the defendant of (1) the nature of the charges against him, (2) any statutory lesser included offenses, (3) the range of possible punishments for the charges, (4) possible defenses, (5) mitigating circumstances, and (6) any other facts necessary for a broad understanding of the matter.

The trial court is not required to address each of these points with the defendant; “[rjather, the record need only reflect that the accused was made aware of the dangers of self-representation and nevertheless made a knowing and intelligent waiver.” The trial court “must apprise the defendant of the dangers and disadvantages inherent in representing himself so that the record will establish that he knows what he is doing and his choice is made with eyes open.” The court is not required to probe the defendant’s case and advise him as to legal strategies to ensure that a waiver is intelligently made. Whether the defendant has technical legal knowledge is irrelevant to the validity of the waiver, as “[t]he test is not whether the accused is capable of good lawyering — but whether he knowingly and intelligently waives his right to counsel.” “The state has the burden of demonstrating that the defendant received sufficient information and guidance from the trial court to make a knowing and intelligent waiver” of the right to counsel.

At a pre-trial hearing, Cox’s counsel informed the trial court that Cox had expressed his desire to represent himself at trial and to have counsel assist him in a “standby” capacity, and that defense counsel had discussed the matter at length with Cox, cautioning him about self-representation.

The court asked Cox whether it was his desire to represent himself. Cox replied that it was. The court then counseled Cox about the dangers of representing himself at trial, explaining to him that, as a nonattorney, Cox might not know what legal objections to make at trial, what legal issues were presented, or what questions to ask standby counsel; that standby counsel would not be representing him; that Cox would be “on [his] own to figure out what legal issues presented] themselves”; that the trial court would not be able to assist him or to “point [Cox] in the right direction”; that it “would not be up to [the court] to make sure that [Cox] did a good job representing [him]self. If [Cox] did an absolutely horrible job, did not raise any legal objections, that would be a risk [Cox] would be taking and nobody would be there to assist [him] other than [standby counsel], if [Cox] knew to ask him a question.” The court repeatedly asked Cox if he understood the warnings and, each time, Cox replied affirmatively.

Then, at the court’s request, the prosecutor announced the charges on which Cox had been indicted and the possible sentences he faced if convicted. The court remarked that each of the charges carried “a considerable sentence,” and asked Cox if he understood. Cox again answered affirmatively. The court asked Cox if he wanted to represent himself rather than be represented by “a seasoned trial attorney.” Cox reiterated that he wanted to represent himself, with the assistance of standby counsel. The court told Cox that standby counsel would not tell him how to try the case, but would advise him when he had questions, “on an as-needed basis.” After making this inquiry, the court found that Cox had been advised of his right to counsel, but that he had chosen to represent himself.

At the same hearing, concerning stipulations that defense counsel and the prosecutor had previously discussed, the court stated that the matter was no longer up to defense counsel to resolve, that it would be “up to Mr. Cox now to work through those legal issues.”

In a later pre-trial hearing, the court again inquired whether it was Cox’s desire to represent himself at trial. Cox replied, ‘Yes, Your Honor.” The court remarked: “It’s a bad idea to represent yourself. I’m strongly advising you against it. There are dangers and inherent disadvantages to not being trained in the law and trying to admit evidence and make proper objections. Do you understand that?” Cox replied that he did. The court added:

Even in terms of getting witnesses to trial, if you had witnesses, if they’re not properly subpoenaed, that would be on you. And [defense counsel] knows how to do all those things — to subpoena witnesses, to phrase proper questions that are not objectionable, and to make proper objections — he’s schooled in all of that and has done a lot of it, and you have not. You still want to represent yourself?

Cox replied, ‘Yes, I do.”

At the beginning of the trial, the prosecutor remarked that Cox had elected to represent himself and that standby counsel was present at the defense table. Cox affirmed that he was ready to proceed.

On appeal, Cox asserts that his election to waive counsel was not knowing and intelligent because the trial court failed to discuss with him “in great length . . . the specific dangers of self-representation.” More specifically, Cox argues that the court failed to discuss with him each of the six factors listed in Bradley , and did not discuss available defenses, the indictment, pre-trial motions, discovery, hearsay or sentencing issues, lesser included offenses, or his education, background and experience.

Decided September 21, 2012.

Deborah R. Fluker, for appellant.

Daniel J. Porter, District Attorney, Jennifer M. Taylor, Assistant District Attorney, for appellee.

However, the trial court was not required to address with Cox each of the six factors suggested in Bradley. Indeed, “no magic words or particular questions [were] required to effect a valid waiver.” What is required is that the record show that Cox was made aware of the dangers of self-representation and nevertheless made a knowing and intelligent waiver. Here, the court cautioned Cox specifically and at great length about the dangers of representing himself and the limits on assistance that would be provided to him by standby counsel and the court, the benefits of being represented by experienced counsel, and the lengthy sentences he faced if convicted. Cox indicated, without equivocation, that he understood the court’s warnings and accepted the dangers of representing himself. Thus, the record reflects that Cox was made aware of the dangers of representing himself at trial and nevertheless knowingly and intelligently waived his right to trial counsel. The trial court did not abuse its discretion in finding that Cox’s waiver was valid.

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

        Cain v. State, 310 Ga. App. 442 (1) (714 SE2d 65) (2011) (punctuation and footnotes omitted).

        Ledford v. State, 247 Ga. App. 885, 887 (545 SE2d 396) (2001).

        Bradley v. State, 298 Ga. App. 384, 385 (1) (680 SE2d 489) (2009) (punctuation omitted).

        State v. Evans, 285 Ga. 67, 68-69 (673 SE2d 243) (2009) (citation and punctuation omitted); Wayne v. State, 269 Ga. 36, 37-38 (2) (495 SE2d 34) (1998); Bradley, supra.

        Evans, supra at 68 (citation and punctuation omitted).

        Cain, supra; Bradley, supra.

        Evans, supra at 69 (citations and punctuation omitted).

        Cook v. State, 297 Ga. App. 701-702 (678 SE2d 160) (2009) (citation omitted).

       Supra.

       Supra; see Evans, supra at 68.

        Cain, supra.

       See Evans, supra; Wayne, supra.

       See Hill v. State, 298 Ga. App. 677, 681-682 (3) (680 SE2d 702) (2009); see also Wayne, supra; Allen v. State, 273 Ga. App. 227, 229-230 (1) (614 SE2d 857) (2005); Shavers v. State, 179 Ga. App. 45, 46 (1) (345 SE2d 134) (1986). Compare Davis v. State, 279 Ga. App. 628, 631 (1) (631 SE2d 815) (2006).


source: Caselaw Access Project

author: Ray, Judge.

license: Public Domain

text:
    A12A1116.
    WILLIAMS v. THE STATE.
    (732 SE2d 531)
   Ray, Judge.

During the late night and early morning hours of November 27 and 28, 2010, officers with the Bibb County Highway Enforcement of Aggressive Traffic (“HEAT”) unit established a roadblock to conduct sobriety checks. At approximately 2:00 a.m., the officers stopped a vehicle driven by James Williams. The officers observed that Williams appeared to be intoxicated, and they arrested him for driving under the influence of alcohol and for violation of the open container law. On appeal, Williams does not challenge the trial court’s factual findings, but instead contends that the trial court erred in denying his motion to suppress evidence obtained at a highway roadblock because he was stopped at a checkpoint implemented by a field officer rather than by a supervisor acting at the programmatic level. For the reasons that follow, we affirm.

In reviewing a trial court’s denial of a motion to suppress, we construe the evidence most favorably to uphold the findings and judgment, and we review de novo the trial court’s application of the law to the undisputed facts. Additionally, we adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous.

Stopping a vehicle at a roadblock is a seizure that violates the Fourth Amendment unless that stop is deemed reasonable. In general, such seizures are unreasonable absent an individualized suspicion of wrongdoing. As a result,

roving patrols in which officers exercise unfettered discretion to stop drivers in the absence of some articulable suspicion are unconstitutional[,] but . . . standardized highway checkpoints or roadblocks that serve legitimate law enforcement objectives are permissible under certain circumstances.

A limited exception to the rule requiring individualized suspicion, however, allows standardized highway roadblocks if the State shows that supervisory officers implemented the roadblock “at the programmatic level for a legitimate primary purpose.” In addition, the Supreme Court of Georgia in LaFontaine v. State outlined five criteria the State must show in order to justify a stop:

the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field; all vehicles are stopped as opposed to random vehicle stops; the delay to motorists is minimal; the roadblock operation is well identified as a police checkpoint; and the “screening” officer’s training and experience is sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication.

Only the first of the LaFontaine factors is at issue here: whether the State demonstrated that “the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field.” The LaFontaine criteria are the minimum prerequisites that must be met for a roadblock to be constitutional. Only after these prerequisites are met do we apply a “totality of the circumstances” test to determine if the stop was reasonable under the Fourth Amendment.

On appeal, Williams contends that the roadblock was unconstitutional because the State failed to show the following: that the decision to implement the roadblock was made by supervisory personnel; that supervisory personnel implemented the roadblock while acting at the programmatic level for a legitimate primary purpose; and that the roadblock was reasonable under the “totality of the circumstances.”

Viewed appropriately, the evidence shows that the decision to implement the roadblock was made solely by Sergeant Bruce Jordan, a supervisory officer of the Bibb County HEAT unit, a state-funded patrol whose main purpose is conducting sobriety checks. Captain Henry Colbert, the HEAT unit’s commanding officer, gave Jordan supervisory authority of the unit and its two field officers in 2009. Before delegating this authority, Colbert told Jordan his expectations for a proper roadblock, including the purposes for designating a roadblock and the expected method of supervision. Colbert also placed limits on when and where Jordan could conduct roadblocks and required him to have a specific reason for conducting the roadblocks. He did not limit the total number of roadblocks Jordan was authorized to conduct. Jordan frequently planned and helped conduct roadblocks. He was not required to seek prior input or approval from Colbert, nor was he required to report to Colbert after implementing the roadblocks. Unless the roadblocks involved officers outside of the HEAT unit, Jordan had no written guidelines detailing the requirements of each roadblock, nor did he keep written records.

Jordan testified that he implemented the roadblock at issue as a license and sobriety check, that he made the decision to do so at the start of his shift, and that about an hour prior to implementing the roadblock, he instructed two other officers to join him. When the officers needed to investigate multiple drivers simultaneously, Jordan participated directly in the investigations, including the investigation of Williams.

1. Williams first contends that the roadblock was unconstitutional because the State failed to show that the decision to implement the roadblock was made by a supervisor rather than by a field officer. Williams does not dispute Colbert’s delegation of his authority to implement roadblocks to Jordan. Rather, he argues that Jordan failed to qualify as “supervisory personnel” because he participated directly in roadblocks, including the one at issue in the instant case.

Although LaFontaine provides that the decision to implement a roadblock should not come from “officers in the field,” this Court has established that a supervisor may be defined by rank and by job duties that require him to “supervise [ ]... subordinates in the field, rather than from behind a desk.” Further, an officer may be a supervisor even if he or she screens a motorist at a roadblock. In the instant case, Jordan was present to supervise the roadblock, but did not interact with motorists when traffic was light. When traffic backed up, however, he assisted his subordinates to minimize delay to the public. Such action does not deprive Jordan of supervisory status.

Williams correctly notes that other decisions by this Court have looked with approval at the supervising officer’s nonparticipation in a roadblock when determining whether an officer held a supervisory role. However, neither this Court nor the Supreme Court of Georgia has held that the level of participation in a roadblock is a determinative factor in classifying an officer as a supervisor. Rather, “officers are not precluded as a matter of law from acting simultaneously as a supervisor and a field officer.” A supervisory officer’s participation in a roadblock does not automatically cause the roadblock to become an unreasonable seizure. Jordan’s participation in the roadblock and his service as a field officer did not disqualify him as a supervising officer, and Williams’ argument on this point fails.

2. Williams also contends that the roadblock was not made for a legitimate primary purpose at the programmatic level because Jordan was authorized to conduct roadblocks without the influence of a detailed program, plan, or schedule from Colbert. The State has the burden of proving that a highway roadblock

was implemented at the programmatic level for a legitimate primary purpose, i.e., proof that the roadblock was ordered by a supervisor and implemented to ensure roadway safety rather than as a constitutionally impermissible pretext aimed at discovering general evidence of ordinary crime.

Although Georgia’s courts have yet to define precisely what it means for a decision to be rendered at the “programmatic level,” this term must be examined in light of the United States Supreme Court’s decision in City of Indianapolis v. Edmond. This Court determined that Edmond requires proof of the valid purpose of a roadblock as a constitutional prerequisite to the admissibility of evidence seized at a roadblock. Further, “Edmond now requires us to focus on the primary purpose decreed by the supervisors. . . . [W]hat is required is ‘an inquiry into purpose at the programmatic level.’ ” In other words, at issue is whether “the decision to implement the checkpoint in question was made by supervisory officers and not officers in the field and [whether] the supervisors had a legitimate primary purpose.” Further, in the context of a supervisor who also serves as a field officer, the supervisor must have acted at an executive programmatic level, as opposed to as a field officer, at the time he or she issued advance authorization for the roadblock.

As we determined in Division 1, the evidence supports the trial court’s finding that Jordan was acting in his duly authorized supervisory capacity when he authorized the roadblock, in advance of implementation, and that he authorized the roadblock for the legitimate primary purpose decreed by Colbert and the stated mission of the HEAT unit to establish a sobriety checkpoint. In a case with similar facts, we determined that a field supervisor who “did not obtain prior approval, either written or verbal, from her superiors” to conduct the roadblock at issue still implemented the roadblock at the programmatic level for a legitimate primary purpose because she was carrying out her superiors’ directive to conduct road safety checks. Further, “[Jordan’s] testimony that [he] was expressly authorized to plan and implement roadblocks, which was uncontradicted, is sufficient to establish [his supervisory authority], regardless of whether this delegation of authority was memorialized in a written manual or policy.” There is no evidence that Jordan’s decision to implement the roadblock was made spontaneously in the field, or that the roadblock had the characteristics of a roving patrol. Thus, Williams’ argument must fail.

Decided September 24, 2012

Childs & Noland, CraigM. Childs, Frank H. Childs, Jr., William H. Noland, for appellant.

Otis L. Scarbary, Solicitor-General, Cynthia T. Adams, Assistant Solicitor-General, for appellee.

3. Finally, after an examination of the totality of the circumstances, including our discussions in Divisions 1 and 2, we are not persuaded that the roadblock was unreasonable under the Fourth Amendment. Although Williams alleges that Jordan had “unfettered and total discretion” to initiate roadblocks, Williams failed to present any evidence that the roadblocks placed an unreasonable burden on the citizens of Bibb County, or that the roadblock was arbitrary or oppressive. As a result, the trial court did not err when it denied Williams’ motion to suppress.

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

       See OCGA § 40-6-391 (a) (1).

       See OCGA § 40-6-253 (b) (1).

       (Footnote omitted.) Thompson v. State, 289 Ga. App. 661 (658 SE2d 122) (2008).

        City of Indianapolis v. Edmond, 531U. S. 32, 37 (II), 40 (III) (121 SC 447, 148 LE2d 333) (2000).

       Id. at 37 (II).

       (Citation and punctuation omitted.) Martin v. State, 313 Ga. App. 226 (721 SE2d 180) (2011).

       (Citation and punctuation omitted.) Thomas v. State, 277 Ga. App. 88, 89 (625 SE2d 455) (2005). Accord Edmond, supra at 48 (III) (purpose inquiry is to be conducted at programmatic level, and is not for probing minds of individual officers acting at scene).

       269 Ga. 251 (497 SE2d 367) (1998).

       (Citation omitted.) Id. at 253 (3).

       Id.

        Baker v. State, 252 Ga. App. 695, 701 (1) (556 SE2d 892) (2001) (whole court).

       Id.

       (Footnote omitted.) Jacobs v. State, 308 Ga. App. 117, 119 (706 SE2d 737) (2011).

       Id.

       See Gonzalez v. State, 289 Ga. App. 549, 551 (657 SE2d 617) (2008) (supervisory officer who occasionally participated in traffic stops when traffic backed up still was acting in supervisory role); Hobbs v. State, 260 Ga. App. 115, 117 (1) (579 SE2d 50) (2003) (upholding the supervisory role of an officer who ordered the roadblock and stopped defendant at the scene).

       See Giacini v. State, 281 Ga. App. 426, 428 (1) (636 SE2d 145) (2006) (mere presence at roadblock does not deprive officer of supervisory status if he is acting in supervisory capacity); Harwood v. State, 262 Ga. App. 818, 820 (1) (a) (586 SE2d 722) (2003) (supervisor did not act as field officer by attending roadblock, where supervisor did not screen, search, or otherwise interact with motorists); Ross v. State, 257 Ga. App. 541, 542 (1) (573 SE2d 402) (2002) (officer present at scene who had supervisory responsibilities acted as supervisor, not field officer, where he testified he was not there as field officer).

        State v. Brown, 315 Ga. App. 154, 159 (1) (726 SE2d 654) (2012) (holding that officer was acting in supervisory capacity even though he simultaneously also was acting as checkpoint supervisor, screener, and follow-up investigator).

       See id. at 162 (Mikell, P. J., dissenting) (“In Georgia, it is in theory possible for a supervisor properly, as an executive, to order the roadblock and then later to participate in it”).

       (Citation omitted.) Hobbs, supra at 116 (1).

       See Owens v. State, 308 Ga. App. 374, 375 (1), n. 3 (707 SE2d 584) (2011).

       Supra.

        Baker, supra at 698 (1).

       (Emphasis supplied.) Id., citing Edmond, supra at 46 (III).

       (Emphasis in original.) Baker, supra at 702 (1). Further, the State must present some admissible testimonial or written evidence of the supervisor’s purpose. Id. at 701 (1).

       See Brown, supra.

        Jacobs, supra at 119.

       (Footnote omitted.) Id. at 119-120.

       (Footnote omitted.) Jacobs, supra at 120. But see Thomas, supra at 90-91 (roadblock unauthorized because corporal on patrol made decision to conduct roadblock “spontaneously,” and no evidence was presented showing he had either specific authorization or implicit authority to implement roadblocks).

        LaFontaine, supra at 253 (3) (trial court did not err in denying motion to suppress evidence from roadblock where there was “no evidence of unfettered discretion” by officers screening motorists, no evidence that officers arbitrarily singled out defendant’s vehicle, and no showing that roadblock was arbitrary or oppressive).

        Powers v. State, 261 Ga. App. 296, 299-300 (1) (a) (582 SE2d 237) (2003).


author: Boggs, Judge.

text:
    A12A1534.
    HEARD v. THE STATE.
    (731 SE2d 124)
   Boggs, Judge.

Following a bench trial, Dale Heard was convicted of criminal attempt to entice a child for indecent purposes. Heard appeals, asserting only a challenge to the sufficiency of the evidence. We reverse because the State presented insufficient evidence to support the only crime with which it charged Heard.

On appeal from a criminal conviction, this court views the evidence in the light most favorable to the verdict, and the appellant no longer enjoys the presumption of innocence. Rankin v. State, 278 Ga. 704,705 (606 SE2d 269) (2004). An appellate court does not weigh the evidence or determine witness credibility; instead, it decides whether, under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Id.

So viewed, the evidence shows that in July 2011, the 12-year-old victim received a text from an unknown number stating, “hey [victim’s first name], what’s up?” When the victim asked who was sending her the text, she learned that it was Heard, the father of teenage boys with whom she was friends. When she inquired about why he was sending her text messages, he responded “I don’t know, for the fun of it.” They exchanged numerous text messages and at some point during their exchanges, Heard asked the victim to “send a naked shot.” The victim responded, “no,” and when Heard asked “why,” she explained “because you’re old and that is just wrong.” During the time period that Heard was sending her text messages, the victim contacted one of Heard’s sons and asked him to tell his father to stop sending her text messages.

Heard lived “roughly adjacent” to the home which the victim’s mother rented in a “family-oriented community” with “a lot of children in the area.” While the victim testified that she had never had problems with Heard in the past, she found it “odd” that every time she was outside at a friend’s house nearby, Heard would always go outside and sit on his porch or mow his lawn even though the grass did not need mowing.

The victim’s mother learned about Heard’s texts from one of the victim’s friend’s mother. After confirming with her daughter that Heard had sent her a text message requesting a naked photo, the mother confronted Heard at his home. Heard admitted sending a text message to the victim and “said he did ask for a picture and may have mentioned naked.” The mother contacted the sheriff’s department, and Heard told the responding deputy that he had received a request for a naked picture that he may have accidentally forwarded to the victim. In a later videotaped interview with a sheriff’s department investigator, Heard admitted sending a text message to the victim.

A Verizon Wireless representative testified that approximately 40 text messages were exchanged between a phone registered to Heard’s wife and a phone used by the victim between 11:26 a.m. and 12:54 a.m. The representative also demonstrated how a person would have to manually enter a phone number to forward a message on a Blackberry Model 9330, the same phone used by Heard to send text messages to the victim.

The State charged Heard with only one crime for his text message: criminal attempt to entice a child for indecent purposes. See OCGA §§ 16-4-1 and 16-6-5 (a). On appeal, Heard argues that the conduct proved by the State during his trial cannot support a conviction for attempting to entice a child because the State cannot prove attempted asportation, an essential element of child enticement. He admits in his brief to this court that his conduct “might have been some other crime,” refers to the criminal exploitation of children statute, OCGA § 16-12-100 (b) (l), and notes that this crime does not have an asportation element.

Heard correctly asserts that the crime of enticing a child includes an asportation element. See Cimildoro v. State, 259 Ga. 788, 789 (1) (387 SE2d 335) (1990). “A person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.” OCGA § 16-6-5 (a). “[T]he asportation element of this offense is satisfied whether the ‘taking’ involves physical force, enticement, or persuasion.” (Punctuation omitted.) Cimildoro, supra, 259 Ga. at 789. The concept of asportation relates to movement, and a conviction for enticing a child cannot be sustained without evidence of movement. See Bragg v. State, 217 Ga. App. 342, 343 (1) (457 SE2d 262) (1995) (no evidence defendant caused children to move toward place where pornographic movies would be viewed); Henderson v. State, 303 Ga. App. 531, 534 (2) (694 SE2d 185) (2010) (no evidence defendant enticed, persuaded, or lured children into another area of house).

The State correctly asserts that it was not required to prove completed asportation because it charged Heard with attempted enticing of a child. Instead, it must satisfy the elements of the criminal attempt statute, OCGA § 16-4-1, which provides: “Aperson commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” In Dennard v. State, 243 Ga. App. 868, 872 (1) (c) (534 SE2d 182) (2000), we addressed the interplay between the asportation element of enticing a child and a charge of attempt. We concluded that the defendant was properly-charged with attempted enticing of a child because the defendant arranged a meeting with the victim at a local mall. Although the . victim did not go to the proposed meeting, we found that the defendant had taken a substantial step toward the commission of the • crime. “[I]f the intended victim had responded to [the defendant’s enticement by proceeding to the arranged meeting place, the element of asportation would have been satisfied” for the completed crime. Id. at 873-874 (1) (c).

Decided August 16, 2012

Reconsideration denied September 25, 2012.

Gilbert J. Murrah, for appellant.

Joseph K. Mulholland, District Attorney, for appellee.

In contrast to the facts presented in Dennard, the victim’s compliance with Heard’s request to send a naked picture would not have satisfied the element of asportation because the request did not attempt to entice or persuade the victim to go to another place. Without evidence that Heard attempted to move the victim “any place ■ whatsoever,” the State failed to prove that Heard possessed the requisite intent to commit the crime of enticing a child and that he took a substantial step toward committing that crime.

Therefore, while the State presented sufficient evidence showing that Heard requested a 12-year-old minor to send him a naked picture, it presented insufficient evidence to prove all of the elements of the only crime with which it charged Heard: attempted enticing of a child. On appeal from a criminal conviction, our role is limited to reviewing whether the State presented sufficient evidence to sustain the crime for which a defendant was charged and convicted. We I therefore cannot remedy the State’s failure to charge Heard with a different crime for which this evidence might have been sufficient to affirm a conviction and are therefore constrained to reverse.

Judgment reversed.

Doyle, P. J., and Andrews, J., concur.

       The record does not contain the content of each text message exchanged between Heard and the victim.

       At the time of the trial, the victim and her mother had moved to another location.

       This Code section makes it “unlawful for any person knowingly to employ, use, persuade, induce, entice, or coerce any minor to engage in or assist any other person to engage in any sexually explicit conduct for the purpose of producing any visual medium depicting such conduct.”


text:
    A12A0871.
    BROWN et al. v. SEABOARD CONSTRUCTION COMPANY.
    (732 SE2d 325)
   Boggs, Judge.

Marietta Brown and Oscar Mangram appeal from the trial court’s grant of Seaboard Construction Company’s (“Seaboard”) motion for summary judgment. The issue on appeal is whether the trial court erred in granting summary judgment based upon Seaboard’s affidavits. We hold that the court did err, and we reverse.

On appeal from a grant of summary judgment, we apply a de novo standard of review. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997). “[T]he moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” (Punctuation omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); see OCGA § 9-11-56 (c).

The record reveals that Brown and Mangram filed a complaint for negligence against Seaboard alleging that they were seriously injured in 2005 due to “the dangerous and defective condition” of a road paved by Seaboard. Seaboard answered and asserted certain affirmative defenses, including a defense based upon the expiration of the applicable statute of limitation. Seaboard later moved for summary judgment based upon an affidavit and supplemental affidavit of its president, Stephen Swan.

Swan averred that Seaboard had not done paving or repair work on the road any time other than 1997 and 2006, and that any care and maintenance of the road after 1997 would have been the responsibility of the Georgia Department of Transportation (“DOT”). The trial court denied Seaboard’s motion for summary judgment based upon issues of fact as to whether Brown and Mangram’s claim was within the limitation period, and concluded that the question of whether “the loss of control of the vehicle was the fault of a defect in the roadway” or due to some other cause, could not be adjudicated on summary judgment.

Six months after the denial of its motion for summary judgment, Seaboard filed a renewed motion for summary judgment based upon a third affidavit filed by Swan. The trial court granted the renewed motion, finding that any defects in the road would be the responsibility of the DOT based on Seaboard’s completion of the project pursuant to DOT standards. See OCGA § 32-2-2 (a) (1); Fraker v. C. W. Matthews Contracting Co., 272 Ga. App. 807, 810 (2) (614 SE2d 94) (2005) (Georgia law dictates that DOT has control and responsibility for all construction and maintenance of state highway system). The trial court’s ruling was based upon averments in this third affidavit.

1. Brown and Mangram first contend that the affidavits submitted by Swan were contradictory and therefore should not be considered. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680) (1986) (testimony of party who offers himself as witness in his own behalf is construed most strongly against him when it is self-contradictory). Swan’s first affidavit averred that Seaboard “had not done any asphalt or repair work” on the road “at any time other than 1997 and 2006.” His supplemental affidavit explained that in 2001, Seaboard submitted a subcontractor proposal to the DOT for a different road on behalf of an “independent sister company of Seaboard.” And in a third affidavit, Swan averred that Seaboard contracted with the DOT to repave the road in 1997, the repaving was completed in 1998, the DOT accepted the work in 1998, and Seaboard repaved the road in accordance with “the plans and specifications provided by the Georgia DOT.” Contrary to Brown and Mangram’s argument, the third affidavit is not contradictory to the first two affidavits, but rather clarifies that while Seaboard contracted to do the repaving work in 1997, it was not completed and accepted until 1998. See, e.g., Cornelius v. Hutto, 252 Ga. App. 879, 882 (1) (558 SE2d 36) (2001) (testimony did not contradict affidavit where it simply provided additional information). The contradictory testimony rule of Prophecy, supra, therefore does not apply.

2. Brown and Mangram argue that Swan’s third affidavit is based upon hearsay and therefore could not be relied upon in support of Seaboard’s motion for summary judgment. In this affidavit, Swan averred that “in addition to his personal knowledge concerning the operations of Seaboard Construction, he has access to its records which were maintained in the ordinary course of its business, as well as having reviewed records of the Georgia DOT concerning the repaving.” He averred further that “Seaboard’s contract with the DOT, contract number TCC-507(1)01... provided that the repaving was to be done in accordance with the plans and specifications provided by the Georgia DOT.” Swan concludes this third affidavit with the statement that “ftjhis affidavit is based upon my personal knowledge and the facts recited herein are true and correct.”

While Swan averred that the statements in the affidavit are based upon his personal knowledge, he refers to and relies upon documents that were not attached to the affidavit, in particular, “records which were maintained in the ordinary course of [Seaboard’s] business,” “records of the Georgia DOT concerning the repaving,” and “Seaboard’s contract with the DOT, contract number TCC-507(1)01.” “[W]here records relied upon and referred to in an affidavit are neither attached to the affidavit nor included in the record and clearly identified in the affidavit, the affidavit is insufficient.” (Citations, punctuation and footnote omitted.) Powers v. Hudson & Keyse, LLC, 289 Ga. App. 251, 252 (1) (656 SE2d 578) (2008) (affidavit based in part on personal knowledge and in part on business records insufficient where business records not attached); Val Preda Motors v. Nat. Uniform Svc., 195 Ga. App. 443, 444 (2) (393 SE2d 728) (1990) (affidavit based on business records and manager’s personal knowledge could not be used to support motion for summary judgment where business records were not attached).

Decided September 25, 2012.

Walter D. Adams, for appellants.

Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, Richard A. Brown, Jr., for appellee.

Because the business records referred to and relied upon by Swan were not attached to his affidavit, the affidavit could not be used to support Seaboard’s motion for summary judgment. See Powers, supra; Val Preda Motors, supra. And the remaining evidence, which includes the depositions of the parties, does not demonstrate that Seaboard was entitled to summary judgment. The trial court therefore erred in granting summary judgment to Seaboard based upon the record before it.

Judgment reversed.

Doyle, P. J., and Andrews, J., concur.


text:
    A12A1032.
    COPELAND v. WELLS FARGO BANK, N.A.
    (732 SE2d 536)
   Boggs, Judge.

In this action seeking the proceeds of a certificate of deposit originally issued by Georgia Federal Bank, Elmore Copeland appeals from the trial court’s grant of summary judgment in favor of defendant Wells Fargo Bank, N.A. Because the trial court correctly held that Copeland’s action is barred by res judicata, we affirm.

On September 18,2003, a judgment was entered on a jury verdict in Fulton County Superior Court against Copeland and in favor of James Harris and Mark Underwood in the amount of $115,800. A writ of fieri facias was issued on October 2, 2003. Harris and Underwood filed a garnishment proceeding in Fulton County State Court, naming Wachovia Bank, N.A. as the garnishee. Copeland was served with copies of the garnishment proceeding on October 10, 2003. On November 5, 2003, Wachovia answered that it held a certificate of deposit, Copeland’s property, and paid the sum of $42,344.58 into the registry of the court. Wachovia received no traverse to the garnishment or any other objection from Copeland.

On March 18, 2011, seven years and four months after the deposit of the garnished sums into court, Copeland filed this action in Fulton County Superior Court against “Wells Fargo/Wachovia,” seeking the proceeds from the certificate of deposit. Appellee Wells Fargo answered and moved for summary judgment on August 18, 2011, asserting good faith compliance with a garnishment proceeding under OCGA § 18-4-92.1, res judicata, the statute of limitation applicable to conversion claims, and failure to demonstrate the elements of a claim for conversion. On September 6, 2011, Copeland moved for a “30-45 days” extension of time to respond to the motion, which was opposed by Wells Fargo. Copeland never responded to Wells Fargo’s motion for summary judgment.

On October 11, 2011, the trial court granted summary judgment to Wells Fargo, finding that Copeland’s claim was barred by the statute of limitation and by the doctrine of res judicata, and Copeland appeals.

1. We first consider Copeland’s contention that the trial court erred in failing to rule on his request for an extension of time to respond to Wells Fargo’s motion for summary judgment. But “[p]retermitting whether the trial court failed to timely rule on [Copeland’s] motion, in order to obtain the reversal of the judgment herein, [Copeland] must prove both harm and error. [Cit.]” Lewis v. Uselton, 224 Ga. App. 428, 430 (4) (480 SE2d 856) (1997).

Copeland asserted in his motion that the “litigation [has] become more [co]mplicated” and that “lega[l] representation is needed” and claims that he “knew he was in well over his capacity and was in dire need of retaining counsel” as well as having several other legal matters pending. But Wells Fargo asserted essentially the same defenses in its answer as in its motion for summary judgment, and further averred in response to Copeland’s motion that its counsel discussed the case and the impending motion for summary judgment with Copeland in June and July 2011, that Copeland elected at that time to proceed without counsel, and that “nothing has changed.” Moreover, Copeland received the 30 days he requested, as the trial court did not rule on the motion for summary judgment until 36 days after his motion, but he never obtained counsel and never filed a brief in response.

Under OCGA § 9-11-6, a trial court has the discretion to extend the time period in which a party may respond to a motion for summary judgment upon a showing of good cause. Broad discretion is vested in the trial court to determine whether good cause exists and what constitutes good cause. The determination of good cause is within the sound discretion of the trial court, and we will not reverse a decision of the trial court unless such discretion was manifestly abused.

(Citations and punctuation omitted.) Abe Engineering v. Fulton County Bd. of Ed., 214 Ga. App. 514, 514-515 (448 SE2d 221) (1994). We therefore conclude that even if the trial court failed to rule on Copeland’s motion for extension of time, he has failed to show harm.

2. Copeland asserts that the trial court erred in granting summary judgment on the ground of res judicata. In a brief and conclusory argument, he contends that the present action lacks identity of parties and subject matter with the prior garnishment proceeding and that there was no prior adjudication on the merits. But

a judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside. OCGA § 9-12-40. When several requirements are met, the prior action operates as a bar to a subsequent action: the first action must have involved an adjudication by a court of competent jurisdiction; the two actions must have an identity of parties and subject matter; and the party against whom the doctrine of res judicata is raised must have had a full and fair opportunity to litigate the issues in the first action.

Decided September 25, 2012

Elmore Copeland, pro se.

Parker, Hudson, Rainer & Dobbs, Erin M. Moore, Trishanda L. Treadwell, for appellee.

(Citations and punctuation omitted.) Lamb v. First Union Brokerage Svcs., 263 Ga. App. 733, 736 (1) (589 SE2d 300) (2003). Here, those requirements are met by the earlier garnishment proceeding. “[A] final judgment has the effect of res judicata between the parties and their successors in interest.” (Citations and punctuation omitted.) Brookins v. Brookins, 257 Ga. 205, 207 (2) (357 SE2d 77) (1987).

“As the debtor in the garnishment action, [Copeland] was required to assert any claim superior to [Harris and Underwood] to the funds held by the garnishee” in that action, and res judicata bars not only issues that were litigated but “all issues which could have been litigated in the prior action.” Lamb, supra, 263 Ga. App. at 736-737 (1). Copeland had the opportunity to oppose the garnishment action and become a party to the garnishment by filing a traverse, which would have allowed him to challenge the existence of the judgment and amount claimed or plead another matter in bar of the judgment. See OCGA §§ 18-4-65; 18-4-93. However, he failed to do so, and res judicata bars any claim against Wells Fargo. Lamb, supra. The trial court did not err in granting summary judgment to Wells Fargo on this ground.

3. We need not reach the alternative grounds for summary judgment asserted by Wells Fargo, ruled on by the trial court, or contested by Copeland. “A grant of summary judgment must be affirmed if right for any reason, whether stated or unstated. It is the grant itself that is to be reviewed for error, and not the analysis employed.” (Citations, punctuation and footnote omitted.) Pollman v. Swan, 314 Ga. App. 5, 5-6 (723 SE2d 290) (2011).

Judgment affirmed.

Doyle, P. J., and Andrews, J., concur.

       Through a series of acquisitions and mergers, Georgia Federal Bank became First Union National Bank, which became Wachovia Bank, N.A., which became Wells Fargo Bank, N.A., the successor in interest to its predecessors.

       Copeland also filed a motion for reconsideration, which was denied because he had already filed a notice of appeal.


text:
    A12A1078.
    CHAMBLEE v. THE STATE.
    (732 SE2d 327)
   Phipps, Presiding Judge.

Jennifer Chamblee appeals her conviction for possession of a drug related object, contending that the trial court erred by denying her motion to exclude incriminating evidence. Specifically, she maintains that her statement to a police officer that she had a “crack pipe,” and then her production thereof to the officer, occurred during an illegal seizure. Because the trial court was authorized to reject Chamblee’s argument that the evidence was obtained in violation of the Fourth Amendment, we affirm.

“In a ruling on a motion to suppress, a trial court’s findings as to disputed facts will be reviewed under a clearly erroneous standard and the trial court’s application of the law to undisputed facts is subject to de novo appellate review.”

The officer who obtained the evidence at issue was the sole witness at the combined suppression hearing/bench trial. On July 5, 2010, the uniformed officer was on patrol in his marked squad car in what he considered a “known drug area.” The officer testified that he observed Chamblee, whom he recognized, walk initially toward a man sitting in a parked vehicle, then abruptly stop when she saw his squad car. The officer further testified that, while he had not witnessed Chamblee commit any crime, he stopped and exited his vehicle, said her name, then walked to her to interview her. He asked Chamblee whether she had any weapons or drugs and whether he could search her person. The officer testified that, at that point, Chamblee was not under arrest and that she was free to walk away. Chamblee replied, however, that she had a “crack pipe” underneath her clothing. The officer asked her to show it to him, and Chamblee complied.

On appeal, Chamblee contends that the trial court erred by not excluding the incriminating evidence on the ground that the underlying police encounter violated the Fourth Amendment. This contention is without merit for the following reasons.

In construing the Fourth Amendment, the Supreme Court of the United States has set forth three tiers of police-citizen encounters: “(1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.”

Chamblee argues that the officer’s exiting his squad car, saying her name, and approaching her with inquiries amounted to sufficient coercion to give rise to a “tier-two” encounter — a brief seizure that must be accompanied by a reasonable suspicion. These actions by the officer were not supported by a reasonable suspicion, Chamblee asserts, pointing out further that the officer admittedly had observed her engage in no illegal conduct.

However, “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.”

Law enforcement officers do not violate the Fourth Amendment’s prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen. Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, [and] ask for identification... — provided they do not induce cooperation by coercive means. If a reasonable person would feel free to terminate the encounter, then he or she has not been seized.

Examples of circumstances that might indicate a second-tier detention,

even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request mightbe compelled.

Here, the evidence authorized the trial court to conclude that the officer’s approach of and initial inquiries to Chamblee amounted to a first-tier encounter that did not have to be supported by reasonable suspicion of criminal wrongdoing. “The only evidence in the record is [the officer’s] testimony. There was no evidence that [the officer] engaged his siren and emergency equipment, drew his firearm, or made any other show of force. Nor is there any evidence that the officer threatened, coerced, or physically restrained appellant.” There was no evidence that the officer physically touched Chamblee’s person or used either language or a tone of voice reflecting that compliance with his request was compelled. Further, the officer testified that Chamblee was not then under arrest and was free to leave the scene, and the record contains no evidence to the contrary.

It was during their first-tier encounter that Chamblee told the officer that she had a crack pipe on her person, which supplied the officer with reasonable suspicion for the ensuing detention. And as Chamblee concedes in her appellate brief, it was upon her incriminating admission that the officer immediately asked for and she relinquished the crack pipe. Contrary to Chamblee’s contention, the trial court did not err by concluding that no unlawful seizure occurred.

Decided September 25, 2012.

Thomas J. Gustinella, for appellant.

Larry Chisolm, District Attorney, Timothy W. Ruffini, Assistant District Attorney, for appellee.

Nothing in Gattison v. State, upon which Chamblee relies, demands an outcome in her favor. In that case, “[t]he trial court found, and the parties agree [d] in their briefs, that [the officer] conducted a second-tier investigatory stop by ‘not allowing [the defendant] to continue on his way away from the officer’s questioning.’ ” In this case, as stated above, the evidence permitted the trial court to find that, prior to the incriminating answer, the officer did not disallow Chamblee from continuing on her way and that the portion of the police-citizen encounter at issue here thus constituted a first-tier police-citizen encounter.

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

       OCGA § 16-13-32.2 (a).

        Canty v. State, 286 Ga. 608 (690 SE2d 609) (2010) (citation and punctuation omitted).

       See generally White v. State, 263 Ga. 94, 98 (5) (428 SE2d 789) (1993) (suppression hearing transcript and trial transcript may he considered on review of suppression ruling); Arnold v. State, 304 Ga. App. 90, n. 2 (695 SE2d 402) (2010) (same).

       See generally Illinois v. Wardlow, 528 U. S. 119, 124 (120 SC 673, 145 LE2d 570) (2000) (while officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation, an individual’s mere presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime); In the Interest of J. B., 314 Ga. App. 678, 682 (1) (725 SE2d 810) (2012) (mere presence in area known to the police for criminal activity without more, is insufficient to support a reasonable suspicion that one is engaged in or about to engage in criminal activity).

       See Jones v. State, 237 Ga. App. 847, 850 (3) (515 SE2d 841) (1999) (possession of a “crack pipe” is possession of a drug related object in contravention of OCGA § 16-13-32.2).

        In the Interest of J. B., supra at 680 (1) (punctuation and footnote omitted), citing Terry v. Ohio, 392 U. S. 1, 21 (III) (88 SC 1868, 20 LE2d 889) (1968).

        Lucas v. State, 284 Ga. App. 450, 452 (644 SE2d 302) (2007) (punctuation and footnote omitted).

        United States v. Drayton, 536 U. S. 194, 200-201 (II) (122 SC 2105, 153 LE2d 242) (2002) (citations and emphasis omitted); see Florida v. Bostick, 501 U. S. 429, 434 (111 SC 2382, 115 LE2d 389) (1991) (a seizure does not occur simply because a police officer approaches an individual and asks a few questions; the encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature); Terry, supra at 19, n. 16 (“Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’has occurred.”); Lucas, supra (during first-tier encounter, “an officer may approach citizen [ ], ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officer [ ] do[es] not detain the citizen or create the impression that the citizen may not leave”); In the Interest of D. H., 285 Ga. 51, 53-54 (2) (673 SE2d 191) (2009); In the Interest of S. B., 207 Ga. App. 60, 62 (427 SE2d 52) (1993).

        Bothwell v. State, 250 Ga. 573, 577-578 (4) (300 SE2d 126) (1983) (citation and punctuation omitted); see Santos v. State, 306 Ga. App. 772, 774 (1) (703 SE2d 140) (2010) (concerning “circumstances that might indicate a second-tier detention”).

       See State v. Westmoreland, 204 Ga. App. 312 (1) (418 SE2d 822) (1992) (“merely approaching an individual and requesting that he give his consent for a search does not constitute a seizure and need not he supported by an articulable suspicion”) (emphasis in original); see also Foster v. State, 285 Ga. App. 441-443 (646 SE2d 302) (2007) (officer’s testimony authorized the trial court to find that his encounter with defendant was consensual and that defendant’s consent to search was freely given); see also In the Interest of D. H., supra; In the Interest of S. B., supra.

        Lucas, supra (punctuation and footnote omitted). See Drayton, supra; Bostick, supra; Terry, supra; In the Interest of D. H., supra; In the Interest of S. B., supra.

       See generally In the Interest of D. H., supra at 53 (2) (noting officer’s testimony at suppression hearing that neither she nor her partner did anything to make defendant feel that he was not free to leave); Lucas, supra (noting officer’s testimony at suppression hearing that he did nothing to make defendant feel as though he was not free to leave and noting further the absence of any evidence to the contrary).

       See Bowden v. State, 279 Ga. App. 173, 176 (1) (630 SE2d 792) (2006) (reasonable suspicion to detain driver from driving off in vehicle was supplied by driver’s admission to police during first-tier encounter that he had no driver’s license or other identification); United States v. Lewis, 674 F3d 1298, 1304 (III) (A) (11th Cir. 2012) (based on defendant’s admission that he was carrying a handgun in his waistband, the officers had reasonable suspicion to believe that defendant was violating Florida law that “a person who carries a concealed firearm on or about his person commits a felony of the third degree”).

       See In the Interest of D. H., supra at 53-54 (2); Foster, supra; Lucas, supra; Bowden, supra; In the Interest of S. B., supra; Westmoreland, supra.

       309 Ga. App. 382 (711 SE2d 25) (2011).

       Id. at 383 (punctuation omitted).


author: Barnes, Presiding Judge.

text:
    A12A1245.
    EL v. MARTIN.
    (732 SE2d 539)
   Barnes, Presiding Judge.

Gonda El appeals pro se the trial court’s denial of her motion to modify custody of and child support for her 15-year-old son. For the reasons that follow, we affirm.

On March 21, 2011, the trial court awarded sole legal and physical custody of the minor to his father, Thomas Martin. On October 21, 2011, El filed a petition seeking to modify custody and obtain sole legal and. physical custody of the child, alleging a material change in circumstances because she had located a private school for him to attend and that his father was committing crimes in his child’s presence. Martin answered and denied the allegations.

The trial court held a hearing on El’s petition, at which El called nine witnesses who attended court under subpoena. At the end of the hearing, the trial court orally denied the petition and then entered a written order finding no material change in circumstances had occurred since the previous custody order, which was entered eight months earlier. The court also found no evidence that the father was unfit, and that a change of custody would not be in the child’s best interest at that time.

El appeals, contending that the trial court erred in awarding Martin custody in the first place, because the child was never legitimated, in not allowing her to present evidence regarding the child’s best interest, and in terminating her parental rights without determining she was an unfit parent.

1. El’s contention that the trial court erred in awarding custody to the father in the first place because he had not legitimated the child was not raised and ruled on in the trial court. Without a ruling on the issue by the trial court, this court has nothing to review, “for we are limited on appeal to those grounds presented to and ruled upon by the trial court and then enumerated as error.” (Citation omitted.) Ehlers v. Schwall & Heuett, 177 Ga. App. 548, 550 (340 SE2d 207) (1986).

2. El contends that the trial court abused its discretion in not allowing her to present evidence that, given Martin’s family and personal history, the child’s best interest was not fully considered. El is correct that a parent is entitled to have all factors considered by a trial court ruling on custody of a minor child. This appeal is not a review of the original custody decision, however; it is a review of the trial court’s order denying El’s petition to modify the custody.

A petition to change child custody should be granted only if the trial court finds that there has been a material change of condition affecting the welfare of the child since the last custody award. If there has been such a change, then the court should base its new custody decision on the best interest of the child. . . . The evidence sufficient to warrant a modification of custody can consist of a change in material conditions which have a positive effect on the child’s welfare as well as changes which adversely affect the child. See OCGA § 19-9-3 (b).

(Citation and punctuation omitted.) Lynch v. Horton, 302 Ga. App. 597, 600-601 (4) (692 SE2d 34) (2010). “A trial court faced with a petition for modification of child custody is charged with exercising its discretion to determine what is in the child’s best interest. OCGA § 19-9-3 (a) (2); Gallo v. Kofler, 289 Ga. 355 (1) (711 SE2d 687) (2011).” Viskup v. Viskup, 291 Ga. 103, 105 (2) (727 SE2d 97) (2012). “Whether particular circumstances warrant a change in custody is a fact question determined under the unique situation in each individual case.” Scott v. Scott, 276 Ga. 372, 373 (578 SE2d 876) (2003).

Decided September 25, 2012.

Gonda El, pro se.

Thomas Martin, pro se.

During El’s presentation of her case, the trial court limited her questioning related to circumstances that existed before the previous custody order was entered in March 2011. Those questions did not address whether a change in material conditions had occurred that would require a change of custody. Accordingly, the trial court did not err in its evidentiary rulings.

3. Finally, El contends that the trial court erred in terminating her parental rights without determining on the record that she was morally unfit to have custody or visitation. This was a custody modification case, however, and not a termination of parental rights proceeding. As our Supreme Court recently observed,

[o]ne who is subject to the termination of parental rights cannot be equated to an individual who faces an interruption of custody; termination is a much more severe measure. It is a remedy of last resort to address the most exceptional situation of a deprived child and that child’s continuing deprivation. Moreover, unlike certain changes in, or temporary suspensions of, custody, a decision to terminate parental rights must follow a multi-step process in which the trial court makes numerous determinations under statutory criteria antecedent to a consideration of the best interest of the child.

(Citations omitted.) In the Interest of A. C., 285 Ga. 829, 833 (2) (686 SE2d 635) (2009).

Based on the evidence of record, the trial court did not abuse its discretion in denying El’s petition to modify custody of and support for the minor child.

Judgment affirmed.

Adams and McFadden, JJ., concur.


text:
    A12A1270.
    GLAZE v. THE STATE.
    (732 SE2d 771)
   Phipps, Presiding Judge.

Willie Glaze was convicted of rape, kidnapping, armed robbery, theft by taking (motor vehicle), and three counts of possession of a gun during the commission of a crime. Glaze appeals, challenging the sufficiency of the evidence and contending that he received ineffective assistance from his trial counsel. Finding no error, we affirm.

At trial, S. D. testified that on April 5, 1994, a little before 6:30 a.m., she stopped at a convenience store to buy coffee on her way to work. After she got back into her vehicle and drove away, she was about to make a turn when she heard from the back of the vehicle a voice instructing her to “keep going.” Then S. D. saw the barrel of a gun protrude between the front bucket seats, “[f]rom behind the passenger’s side” of the vehicle.

S. D. testified that the gunman told her to turn onto a driveway that led into the woods. There, the gunman ordered S. D. to “[c]ut the car off,” and to exit the vehicle. S. D. testified that the gunman “grabbed [her] by the shoulder and pulled [her] up through [a] ditch and [they] walked on up through the woods.” In the woods, the gunman asked S. D. whether she had any money. S. D. replied that she did, and the gunman, still pointing his gun at S. D., ordered her to give it to him. S. D. gave him the money. S. D. testified that the gunman then ordered her to “pull one leg out of [her] pants and keep one leg in.” He ordered her to lie on the ground, and he inserted his penis into her vagina. Afterward, the gunman ordered S. D. to disrobe and give him her clothes, which she did. He took her clothes and left in her vehicle.

Naked, S. D. walked to the road to get help. A passing motorist drove her to a police officer who was parked “just down the road.” S. D. was taken to a hospital, and a doctor examined her for evidence of sexual assault. Several hours after the incident, S. D.’s vehicle was located “around the corner from [the] convenience store” where S. D. had stopped that morning. Inside the vehicle were S. D.’s clothes that the gunman had taken with him.

S. D. testified that her assailant had a gun throughout the incident, and that she felt her life was threatened. S. D. did not get a good look at the perpetrator. She did, however, describe his race, and the coveralls he was wearing.

As part of the sexual assault examination, the doctor took swabbings from S. D.’s vaginal area. Sperm was detected in a vaginal swab taken from S. D. The sample was tested for DNA, and a male DNA profile was obtained. In June 1998, S. D.’s DNA profile and the DNA profile of the unknown male whose sperm was detected in the swab sample taken from S. D.’s vaginal area were entered into the Combined DNA Index System (“CODIS”), a national database of DNA profiles.

In December 2006, the CODIS administrator for the Georgia Bureau of Investigation’s Division of Forensic Sciences was conducting a routine search of the CODIS database and received information that the DNA profile from the 1994 incident possibly matched the DNA profile of Glaze. After the CODIS identification was obtained, the police arrested Glaze pursuant to a warrant and obtained a buccal swab from him for additional DNA testing. An additional swab was also taken from S. D. The new swabbings were tested and compared to the 1994 swab samples taken from S. D. Glaze’s DNA profile obtained from the new sample matched the DNA profile of the male whose sperm had been obtained in connection with the 1994 incident.

At trial, S. D. was shown a photograph taken from a surveillance video camera at the convenience store the morning of the incident. The photograph depicted a man whose clothing and race fit the description S. D. gave of her assailant. An investigator’s testimony that the photograph was “grainy,” making it “hard to see close facial features,” was evident from the exhibits admitted at trial. And although S. D. did not say whether the individual in the photograph appeared to be her assailant, she identified the coveralls worn by the individual depicted in the photograph as the type and color of the coveralls her attacker wore. An investigator for the sheriff’s department testified that his investigation revealed that Glaze had been in the county area where the incident occurred on the date of the alleged crime.

1. Glaze contends that the evidence was insufficient to support his convictions. He argues that he was never positively identified, but was identified only through DNA evidence, and that the DNA evidence by itself was insufficient to support his convictions or to exclude the possibility that he had consensual intercourse with S. D.

On appeal of a criminal conviction, this Court’s duty is to determine 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. The appellant no longer enjoys the presumption of innocence. Moreover, the Court does not re-weigh. the evidence or resolve conflicts in testimony, but rather defers to the jury’s assessment of the weight and credibility of the evidence.

“Under OCGA § 24-4-6, only when the evidence is entirely circumstantial must the evidence exclude every other reasonable hypothesis except that of the guilt of the accused.” Here, the evidence of Glaze’s guilt consisted of a combination of circumstantial and direct evidence. There was DNA evidence and S. D.’s testimony regarding the nature of the attack and description of the attacker. And although Glaze complains that he was never positively identified as the perpetrator, the store surveillance camera captured the image of an individual who wore clothing similar to that worn by S. D.’s attacker and who appeared to be the same race as the attacker. Additionally, there was evidence that Glaze was in the county area at the time of the incident. “[E]vidence other than the victim’s identification of her attacker, including circumstantial evidence, may sustain a conviction for rape.” The credibility, truthfulness, and reliability of witnesses are matters within the province of the jury.

Concerning Glaze’s argument that the DNA evidence did not exclude the possibility that he had consensual intercourse with S. D., “[t]he testimony of a single witness is generally sufficient to establish a fact.” And the General Assembly long ago removed the corroboration requirement from the rape statute. To prove the offense of rape, the state must show that a defendant had “carnal knowledge of... [a] female forcibly and against her will.” S. D. testified that she lay on the ground because Glaze instructed her to do so; he had a gun in his hand, and she believed that he had the ability to kill her if she did not comply with his demands. “[L] ack of resistance, induced by fear, is not legally cognizable consent but is force.” S. D. testified also that Glaze’s actions were against her will.

The evidence was sufficient for a rational trier of fact to find Glaze guilty beyond a reasonable doubt of the offenses charged.

2. Glaze contends that he received ineffective assistance of counsel because his trial counsel did not “call any expert witness to rebut the state’s DNA evidence.”

To prevail on a claim of ineffective assistance of trial counsel under Strickland v. Washington, a defendant must show that “counsel’s performance was deficient and that the deficient performance so prejudiced defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.” A defendant must overcome the strong presumption that trial counsel’s conduct fell within the broad range of reasonable professional conduct. “The trial court’s determination with respect to effective assistance of counsel will be affirmed unless its findings are clearly erroneous.”

“The decision whether to call an expert witness is a matter of trial strategy within the broad range of professional conduct afforded trial attorneys.” At the hearing on Glaze’s motion for new trial, trial counsel testified that he and his co-counsel had hired an expert to examine the GBI results of the DNA analysis that linked Glaze to the incident. Their expert concluded that “everything had been done correctly.” Trial counsel further testified that “although [the expert] offered us some cross-examination tests, there was nothing we felt he could offer in testimony.” Moreover, Glaze failed to show what favorable evidence would have been elicited if trial counsel had called an expert witness. Accordingly, Glaze has failed to meet his burden of showing both deficient performance on the part of trial counsel, and prejudice arising from trial counsel’s performance.

Decided September 25, 2012.

Edward V. C. Silverbach, for appellant.

Peter J. Skandalakis, District Attorney, Andrea A. Newton, Assistant District Attorney, for appellee.

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

        Walker v. State, 282 Ga. 406 (651 SE2d 12) (2007) (citations and punctuation omitted).

        McKeehan v. State, 274 Ga. App. 14, 15 (1) (616 SE2d 489) (2005) (citation omitted).

       See id.

       Glaze asserts that he did not fit S. D.’s description of her attacker because S. D. stated that her attacker was six feet to six feet one inch in height, and Glaze was five feet six inches in height. But evidence of Glaze’s height was not adduced at trial. At the hearing on Glaze’s motion for a new trial, Glaze testified that he was five feet six inches tall.

        McKeehan, supra (citing Walker v. State, 157 Ga. App. 728, 728-730 (1) (278 SE2d 487) (1981) (rape conviction affirmed where the only evidence as to identity of assailant was circumstantial, i.e., a telephone number the assailant gave the victim and a blue and white bandana the assailant wore)); see Walker, supra, 282 Ga. at 406-408, n. 1 (evidence was sufficient to enable a rational trier of fact to find defendant guilty beyond a reasonable doubt of murder and rape where evidence of perpetrator’s identity consisted of DNA evidence and evidence that at the time of the victim’s death, the defendant frequently stayed at a home located only a block from where the victim’s body was discovered, and the defendant had been observed in the area where the victim’s body was discovered a few days after the victim’s death, and nearly a month later, only 25 feet from where the victim’s body had been found).

       See Johnson v. State, 273 Ga. 872, 874 (2) (548 SE2d 292) (2001).

       OCGA § 24-4-8.

        Baker v. State, 245 Ga. 657, 665-666 (5) (266 SE2d 477) (1980); OCGA § 16-6-1.

       OCGA § 16-6-1 (a) (1).

        Curtis v. State, 236 Ga. 362, 363 (1) (223 SE2d 721) (1976); Ellis v. State, 316 Ga. App. 352, 356 (1) (c) (729 SE2d 492) (2012).

       See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Ellis, supra; McKeehan, supra; Walker, supra, 282 Ga. at 406-408.

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

        Johnson v. State, 287 Ga. 767, 769 (2) (700 SE2d 346) (2010) (citations omitted).

       Id.; Mobley v. State, 271 Ga. 577, 578 (523 SE2d 9) (1999).

        Johnson, supra, 287 Ga. at 769 (2) (citation omitted).

        Davis v. State, 290 Ga. 584, 586 (2) (a) (723 SE2d 431) (2012) (citation omitted).

       See Hendricks v. State, 290 Ga. 238, 241-242 (4) (b) (719 SE2d 466) (2011); Goodwin v. Cruz-Padillo, 265 Ga. 614, 615-616 (458 SE2d 623) (1995).

       See Hendricks, supra; Crawford v. State, 314 Ga. App. 796, 799 (7) (a) (726 SE2d 58) (2012) (trial counsel’s failure to call an expert witness on weapons was a tactical and strategic decision that could not form the basis for an ineffective assistance claim, where trial counsel testified at the motion for new trial hearing that he considered bringing in a weapons expert and spoke with different experts but did not call any to testify at trial because none of the information he received was favorable to the defense).


text:
    A12A1324.
    In the Interest of T. S., a child.
    (732 SE2d 541)
   Barnes, Presiding Judge.

The mother of T. S. appeals a juvenile court order finding T. S. deprived, arguing, among other things, that her due process right to confrontation was violated because she was excluded from the courtroom while T. S. testified and could not assist her counsel in developing questions to ask T. S. on cross-examination. Because the juvenile court erred in dismissing the mother from the courtroom without an evidentiary finding of necessity and without providing her with the means to listen to the testimony and assist her lawyer, we must reverse and remand for a new hearing.

1. The mother argues that her due process right to confrontation was violated because she was not allowed to remain in the courtroom while T. S. testified.

A parent is a party to deprivation or termination of parental rights proceedings involving her child, and has a right to due process during those proceedings. In the Interest of A. J., 269 Ga. App. 580, 581 (1) (604 SE2d 635) (2004). Due process affords the parent a right to confront witnesses, In the Interest of C. W. D., 232 Ga. App. 200 (501 SE2d 232) (1998), a right which “really means the right to ask questions and secure answers from the witness confronted.” Lingerfelt v. State, 235 Ga. 139, 140 (218 SE2d 752) (1975) (defining Sixth Amendment right to confrontation). Further, the “main and essential purpose of confrontation is to secure the opportunity of cross-examination.” Denson v. State, 150 Ga. 618, 622 (4) (104 SE 780) (1920). A parent alleging that her due process right to confrontation was violated must show harm as well as error. In the Interest of M. H. W., 275 Ga. App. 586, 590 (1) (621 SE2d 779) (2005).

In this case, after the State rested, T. S.’s attorney called her to testify, provided that she be permitted to testify in camera. The mother objected to having T. S. testify in camera, arguing that she had a right to confront T. S. and needed to be present to help her attorney prepare questions for cross-examination. Without making any findings about the necessity of exclusion, the juvenile court overruled the objection and asked the mother and a case manager to step out of the courtroom. The mother’s attorney perfected her objection, which the juvenile court again overruled, noting that the mother had the right to call T. S. for cross-examination.

T. S. then read a prepared statement and answered questions from her attorney, the court and DFCS’s attorney. T. S.’s attorney rested. The mother returned to the courtroom and moved to dismiss the petition on the ground that insufficient evidence supported the allegation of deprivation. The juvenile court denied the motion, and the mother called T. S. for cross-examination, then called additional witnesses.

Effective confrontation does not necessarily require a face-to-face confrontation. In the Interest of B. H., 295 Ga. App. 297, 301 (5) (671 SE2d 303) (2008). If the trial court finds that testifying in the physical presence of a parent would cause a child trauma and excludes the parent from the proceedings, the parent’s due process rights are protected if she can listen to the child’s testimony and contemporaneously consult with her attorney to assist in propounding questions for cross-examination. Id. (no due process violation when excluded parent watched child’s testimony via closed-circuit television and was provided with a runner to take notes to the parent’s lawyer). See also In the Interest of M. H. W., 275 Ga. App. at 590 (1) (no harm in requiring father to continue cross-examination of mother by telephone); In the Interest of C. W. D., 232 Ga. App. at 209-210 (5) (children testified and were cross-examined via closed-circuit television after juvenile court determined that making them testify in mother’s presence would be detrimental to their health).

On the other hand, we have reversed and remanded cases in which a parent was excluded from the courtroom during her child’s testimony, absent a showing that exclusion was necessary and that the parent was given a means to consult with her lawyer while listening to the child’s testimony. See In the Interest of M. S., 178 Ga. App. 380, 381 (343 SE2d 152) (1986) (termination order reversed because parent was excluded even from observing child’s testimony through a one-way mirror); In the Interest of B. G., 225 Ga. App. 492, 494 (1) (484 SE2d 293) (1997) (due process violation was not harmless when parent excluded from courtroom and given no means to listen to child’s testimony and contemporaneously consult with lawyer).

Decided September 25, 2012.

Jessica D. Huff, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Penny Hannah, Assistant Attorney General, Wenona C. Belton, for appellee.

If a parent cannot hear her child’s testimony in a deprivation or termination of parental rights proceeding, she cannot assist her lawyer in developing the child’s cross-examination and her due process right to confrontation is limited. In this case, “the trial court erred by completely excluding the mother from the courtroom without a showing of necessity and without using procedures which would accommodate her ability to hear the testimony and consult with her attorney.” In the Interest of B. G., 225 Ga. App. at 494 (1). The error was harmful because the mother was unable to assist her attorney in developing questions for the cross-examination of the child. Id.

2. Our holding in Division 1 renders moot the mother’s remaining enumerations of error.

Judgment reversed and case remanded for new hearing.

Adams and McFadden, JJ., concur.


text:
    A12A1401.
    AMIN v. THE STATE.
    (732 SE2d 340)
   Barnes, Presiding Judge.

Mahir Assad Amin appeals his conviction for possession of cathinone, a Schedule I substance, in violation of the Georgia Controlled Substances Act, OCGA § 16-13-25 (3) (GG). Amin contends, among other things, that the State did not present sufficient evidence of intent to find him guilty of the crime. For the reasons discussed below, we agree and reverse.

1. “When reviewing a challenge to the sufficiency of the evidence used to support a conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.” (Citations omitted.) Arroyo v. State, 309 Ga. App. 494 (711 SE2d 60) (2011); see Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Amin was jointly tried with another man, Abdihakim Mohamed, who was also charged with possession of cathinone. Mohamed’s conviction has already been reversed on appeal because the evidence against him was insufficient. Mohamed v. State, 314 Ga. App. 181 (723 SE2d 694) (2012), cert. denied, State v. Mohamed, Case No. S12C1038 (decided June 18, 2012). As described in Mohamed, the facts presented at trial showed that a courier service security manager suspected that two packages shipped from Kenya to the Netherlands to Georgia contained illicit material. A supervisor opened the packages and found plant material, which a Clayton County Narcotics Unit officer subsequently identified as “khat.” When Mohamed and Amin arrived separately, each to claim a package, they were arrested and charged with possession of cathinone.

Freshly cut khat, a shrub “grown in the horn of Africa and the Arabian Peninsula,” contains the chemical cathinone, which is a Schedule I “hallucinogenic substance.” OCGA § 16-13-25 (3) (GG); Pennsylvania v. Mohamud, 15 A3d 80, 84 (Pa. Super. Ct. 2010). The cathinone in khat degrades over time into the milder stimulant cathine. Id. While cathine is also a controlled substance, described in our statute as imparting either a stimulant, a depressant, or a hallucinogenic effect, OCGA § 16-13-28 (a), neither Amin nor Mohamed was charged with cathine possession.

After a bench trial, Amin and Mohamed were convicted. We reversed Mohamed’s conviction because the evidence was insufficient. Mohamed, 314 Ga. App. 181. Amin argues on appeal, as did Mohamed, that the State presented insufficient evidence that he intended to possess cathinone.

At trial, Mohamed testified that he was born in Somalia, where khat is legal and widely used, including at weddings and other parties. He further explained that it darkens within three or four days after harvesting, and that Somalians do not ingest it for “two days, three days, five days” to wait “for the chemicals to go out” so it is not too strong. He further testified that it took three to five days for khat to arrive from Africa to the United States, by which time “the strong chemicals are gone.” According to Mohamed, the khat at issue here was grown in Meru, Kenya, driven approximately 400 kilometers to the Nairobi airport, shipped to the Netherlands by air, and then shipped to Ohio before finally arriving in Atlanta. The evidence showed that the packages originated in Kenya on March 2, 2009, traveled through Rotterdam, Netherlands, and arrived in Atlanta on March 4, 2009.

Decided September 25, 2012.

Possession of a controlled substance is not a strict liability offense. Rather, “the criminal intent required by OCGA § 16-13-30 (a) . . . is intent to possess a drug with knowledge of the chemical identity of that drug.” Duvall v. State, 289 Ga. 540 (712 SE2d 850) (2011) (evidence defendant believed that controlled substance he possessed was over-the-counter medication was insufficient to prove intent). In Mohamed, we held that, while the evidence was sufficient to establish that the defendant possessed khat, it was insufficient to prove he “intended to possess khat with knowledge that it contained cathinone, which was the controlled substance specified in the accusation.” (Emphasis omitted.) 314 Ga. App. at 183-184 (1).

Although Amin told an investigating officer that chewing khat “gave you a high feeling,” he did not define “high.” Both cathinone and cathine are described by statute as hallucinogens, but only cathine is described as a stimulant. There is no evidence that Amin’s “high feeling” described the result of chewing freshly-harvested khat containing cathinone rather than older khat in which the cathinone had degraded to cathine. This khat had been in transit for at least four days, and a state crime lab chemist who tested the khat in September 2009 concluded that neither cathinone nor cathine was detectable by sight, although scientific testing revealed detectable amounts of both substances. The chemist did not measure the quantity of either substance within the sample tested, and could not describe the difference in effect on a person ingesting either cathinone or cathine.

The evidence against Amin was not significantly different from the evidence against Mohamed, and was therefore also insufficient to prove that Amin knew he was in possession of cathinone. Accordingly, the conviction is reversed.

2. Our conclusion in Division 1 renders moot Amin’s other enumeration of error.

Judgment reversed.

Adams and McFadden, JJ., concur.

Sidney L. Moore III, for appellant.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

       Amin was also convicted of possession of less than an ounce of marijuana, hut does not contest that conviction on appeal.


author: Ellington, Chief Judge. Dillard, Judge,

text:
    A12A1459.
    SLADE v. BUTLER et al.
    (732 SE2d 543)
   Ellington, Chief Judge.

Satundra Slade was fired from her job as a bus driver for the Atlanta Public School System (“APS”). APS challenged Slade’s application for unemployment benefits, contending that she was fired for violating APS policies and was, therefore, disqualified from receiving benefits under OCGA § 34-8-194 (2) (A), and a claims examiner with the Georgia Department of Labor (“the Department”) agreed. Following a hearing, a Department hearing officer found that Slade was in violation of APS rules and affirmed the claims examiner’s denial of benefits. The Department’s Board of Review and the Superior Court of Fulton County both affirmed the decision to deny benefits. This Court granted Slade’s application for discretionary appeal. Slade contends that she did not knowingly disregard APS policies because the policies at issue were either ambiguous or were applied retroactively to her. For the reasons set forth below, we agree and reverse.

In considering whether the administrative tribunal properly found that [Slade] was not entitled to receive unemployment benefits, the trial court, as well as this [C]ourt, must affirm if there is any evidence to support that ruling. And we will uphold the [Department’s factual findings if there is any evidence to support them.

(Citations and punctuation omitted.) MCG Health v. Whitfield, 302 Ga. App. 408 (690 SE2d 659) (2010). “When this Court reviews a superior court’s order in an administrative proceeding, our duty is not to review whether the record supports the superior court’s decision but whether the record supports the final decision of the administrative agency.” (Citation and punctuation omitted.) Davane v. Thurmond, 300 Ga. App. 474, 475 (685 SE2d 446) (2009). Pursuant to OCGA § 34-8-194 (2) (A), an individual may be disqualified from receiving unemployment compensation benefits when he or she has been discharged “for failure to obey orders, rules, or instructions or for failure to discharge the duties for which the individual was employed[.]” However,

[b]efore such disqualification is appropriate, the employer must show that the discharge was caused by the deliberate, conscious fault of the claimant. This is in keeping with the strong public policy favoring payment of unemployment benefits to persons unemployed through no fault of their own. OCGA § 34-8-2. Disqualification is an exception to the statutory scheme for unemployment benefits and the employer must show by a preponderance of the evidence that disqualification is appropriate.

(Citations and punctuation omitted.) Jamal v. Thurmond, 263 Ga. App. 320, 321 (1) (587 SE2d 809) (2003).

The record shows that Slade was employed with APS for 14 years. There is no evidence in the record that, during that period, she was disciplined or warned that her performance was inadequate. APS’s decision to fire Slade was based upon Slade’s involvement in two minor automobile accidents. In May 2009, while she was driving an APS school bus, Slade struck a car that had turned in front of her. There is no evidence that anyone was injured or that the accident caused any property damage. In March 2010, while Slade was driving her own car, she “bumped” a car that had stopped abruptly in front of her. The record does not reveal whether any traffic citations were issued to Slade or whether she was convicted of a misdemeanor traffic offense in connection with either accident. Slade, however, admitted that the accidents were her fault.

The APS employee handbook contained a “Fleet Safety Policy” which sets forth the maximum number of motor vehicle “convictions” an approved APS bus driver is allowed during a specified period of time. Slade received a copy of the policy in August 2009. She also received a copy of the amended policy in August 2010, five months after her second accident. Both the 2009 and 2010 policies set forth “Driver Approval Criteria” as follows: (1) no Class I convictions in the last three years, (2) no more than one Class II conviction in the last three years, (3) no more than two Class III convictions in the last three years, and (4) no more than two convictions in the last three years resulting from a combination of Class II and Class III convictions. In 2009, the conviction classes were set forth thus:

Class I —■ DUI; assault, manslaughter, or homicide arising out of the use of a motor vehicle.
Class II — Failure to stop and report an accident; driving while license is suspended or revoked; reckless driving; possession of an opened alcoholic beverage container; speeding in excess of 20 mph over a posted limit; violation resulting in an at-fault accident.
Class III — Speeding up to 20 mph over a posted limit; any additional traffic violations/at-fault accidents.

“At-fault accident,” which is listed in both Class II and Class III, is not defined. The 2009 policy arguably allows for two at-fault accidents within a three-year period and, yet, simultaneously provides that a driver may not have more than one at-fault accident in a three-year period. Slade understood this policy to mean that she was permitted to have up to two at-fault accidents in a three-year period if the accidents were minor. APS’s transportation supervisor also testified that, every year, she told all bus drivers that they were not allowed, under this policy, to have “more than two at-fault accidents.” In August 2010, APS modified the text of Class III, omitting any reference to “at-fault” accidents. Thus, under the 2010 policy, an employee may be terminated for having more than one at-fault accident within a three-year period.

In affirming the Board of Review’s decision, the superior court reasoned that the 2010 policy, which went into effect after Slade’s second accident, essentially cured any ambiguity in the 2009 policy, reasoning that, since both policies provided that an employee may be terminated for having more than one at-fault accident, Slade, at all relevant times, understood that she could be terminated for that reason alone. Such reasoning, however, ignores the fact that the 2009 policy was ambiguous during the time it was in effect, and that both Slade and her supervisor believed that a bus driver would not be terminated for having only two at-fault Class III accidents. This interpretation was as reasonable as the alternative one that APS relied upon. Moreover, because this policy did not define “at-fault accident,” it was not patently unreasonable for Slade to believe that Class II counted more severe at-fault accidents than were embraced in Class III. Because the 2009 policy was ambiguous and because Slade’s interpretation of that policy was not unreasonable, there is no evidence that Slade consciously or deliberately violated the 2009 policy. See, e.g., Davane v. Thurmond, 300 Ga. App. at 477 (“Since disqualification of benefits requires ‘deliberate, conscious fault’ by the employee, an employee’s bona fide effort to comply with an employer’s orders is not consistent with a finding of fault.”) (citation omitted). Moreover, “determination of a disqualifying fault must be made in the context of whether the employee would reasonably expect, under all the circumstances of employment, that sanction would result from a violation.” (Citation and punctuation omitted; emphasis supplied.) Id.

Only after the policy was amended in 2010 was Slade put on notice that more than one at-fault accident, regardless of whether the accident resulted from a minor or a serious traffic violation, would be a policy infraction that would result in termination. Further, she was given this notice only after her second accident. Applying the 2010 policy retroactively against Slade does not cure the ambiguity under which she had been operating. Rather, it simply applies a new rule to her retroactively. Under the circumstances, Slade did not knowingly disobey her employer’s 2010 policy because the policy was not in effect when she was alleged to have violated it. Thus, there is no evidence in the record that Slade consciously or deliberately violated either the 2009 or 2010 APS Fleet Safety Policy. See Davane v. Thurmond, 300 Ga. App. at 477.

Given the circumstances of this case, we conclude that APS did not carry its burden of showing that Slade came within the disqualification exception. Therefore, she is entitled under the law to unemployment compensation, and the superior court erred in affirming the denialofbenefits. See Barron v. Poythress, 219 Ga. App. 775, 777 (466 SE2d 665) (1996).

Judgment reversed.

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

Dillard, Judge,

concurring in judgment only.

I concur in judgment only because I do not agree with all that is said in the majority opinion. As such, the majority’s opinion decides only the issues presented in the case sub judice and may not be cited as binding precedent. See Court of Appeals Rule 33 (a).

Decided September 25, 2012.

Kimberly Charles, David A. Webster, for appellant.

Samuel S. Olens, Attorney General, Kimberly B. Lewis, Assistant Attorney General, Michael J. Walker, for appellees.

       The appellate record does not contain evidence of a “conviction” for any traffic violation; rather a witness testified that Slade was terminated based upon a “report” obtained from the Department of Motor Vehicles.

       Slade argues that the policy was likely intended to limit at-fault accidents “resulting” from the more serious Class II violations to one, while allowing two at-fault accidents resulting from less serious traffic violations, that is, those that were not included in Class I and Class II. We do not address whether this interpretation is correct as we have not been tasked with resolving the ambiguity. We simply note that it exists.


text:
    A12A2212.
    SHEFFIELD v. THE STATE.
    (732 SE2d 546)
   Phipps, Presiding Judge.

Ronald Sheffield appeals from the denial of his motion to withdraw his guilty plea. For reasons that follow, we affirm.

After pleading guilty to charges of aggravated battery, theft by taking, and violation of the Georgia Controlled Substances Act, Sheffield was sentenced on August 11, 2011. On September 12, 2011, Sheffield filed a motion to withdraw his guilty plea. The trial court denied the motion, determining that it lacked jurisdiction to entertain the motion because it was not timely filed.

Pro se on appeal, Sheffield maintains that he should be entitled to withdraw his guilty plea. “However, it is well settled that a trial court does not have jurisdiction to entertain a motion to withdraw a guilty plea filed after the term of court in which the defendant was sentenced under the plea.” Sheffield pled guilty and was sentenced in Cobb County Superior Court during the Cobb Judicial Circuit’s July 2011 term of court. A new term of court began on the second Monday in September 2011.® Consequently, Sheffield filed his September 12, 2011 motion outside the term of court in which he was sentenced. “Accordingly, the trial court did not have jurisdiction to entertain [Sheffield’s] motion to withdraw his guilty plea, and therefore, did not err in denying it.”

Sheffield may seek recourse through habeas corpus proceedings. But “[b]ecause [Sheffield’s] motion to withdraw the plea was brought against the State in the county of conviction, rather than against the warden in the county in which he is incarcerated, it cannot be treated as a habeas corpus petition.”

Decided September 25, 2012.

Ronald Sheffield, pro se.

Patrick H. Head, District Attorney, John R. Edwards, Benjamin M. First, Assistant District Attorneys, for appellee.

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

        Smith v. State, 283 Ga. 376 (659 SE2d 380) (2008) (citations omitted); see Rubiani v. State, 279 Ga. 299 (612 SE2d 798) (2005); Henry v. State, 269 Ga. 851, 853 (2) (507 SE2d 419) (1998).

       See OCGA § 15-6-3 (11).

       See id.

        Hall v. State, 313 Ga. App. 670, 672 (1) (722 SE2d 392) (2012) (footnote omitted); see Henry, supra (same); Williams v. State, 301 Ga. App. 849, 851 (1) (689 SE2d 124) (2010) (same); Maples v. State, 293 Ga. App. 232, 233 (1) (666 SE2d 609) (2008) (same).

       See Smith, supra at 376, n. 1; Henry, supra.

        Smith, supra (citation omitted).