text:
    A12A2280.
    GENTRY v. HUTCHINS et al.
    (738 SE2d 92)
   Ellington, Chief Judge.

Pursuant to a granted interlocutory appeal, Kevin Gentry challenges an order of the Superior Court of Athens-Clarke County, contending, inter alia, that the trial court erred in denying his motion for summary judgment on official immunity grounds in this trip and fall case. Because we conclude that Gentry was immune from suit, the trial court erred in denying Gentry’s motion. Consequently, we must reverse.

Summary judgment is proper when the evidence, construed in the nonmovant’s favor, shows that no issue of material fact remains and the movant is entitled to judgment as a matter of law. A defendant may prevail on summary judgment by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.

(Citation and punctuation omitted.) Effingham County v. Rhodes, 307 Ga. App. 504 (705 SE2d 856) (2010).

Viewed in the light most favorable to the non-movant, the record evidence shows that, on July 17, 2009, Georgia Hutchins drove to downtown Athens and parked her car on the street in the vicinity of 186 East Clayton Street. As she walked to the parking meter next to her parking space, she stepped in what she contends was a hole in the area of the street or curb, and she fell onto the sidewalk. Hutchins fractured her ankle, and the break required surgery.

In her complaint, Hutchins contended that the sidewalk and adjacent walking surface where she fell constituted a “known tripping hazard” that had been the subject of a repair work order in 2007 and another in 2008. She claimed that Gentry, who served Athens-Clarke County as the Superintendent of the Streets and Drainage Division of the Public Works Department, “was charged with the ministerial task of completing the ordered repair of the tripping hazard” and that he negligently failed to discharge that ministerial duty. In moving for summary judgment, Gentry argued that, as a matter of law, his alleged conduct was discretionary, rather than ministerial in nature and, therefore, that he is entitled to the protection of official immunity. Following a hearing, the trial court denied Gentry’s motion, finding that questions of fact existed as to whether Gentry had a ministerial duty to repair the alleged hazard once he was made aware of it.

The doctrine of official immunity, also known as qualified immunity, offers public officers and employees limited protection from suit in their personal capacity. Qualified immunity protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption. Under Georgia law, a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure. The rationale for this immunity is to preserve the public employee’s independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight. Thus, damage suits are maintainable in this state against government officers and agents for failure to perform ministerial duties, but such officers and employees are immune from negligence claims when the acts complained of involve a discretionary function of an office. The difference between ministerial and discretionary acts has been explained as follows: A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed. Procedures or instructions adequate to cause an act to become merely ministerial must be so clear, definite and certain as merely to require the execution of a relatively simple, specific duty.

(Citations and punctuation omitted.) Effingham County v. Rhodes, 307 Ga. App. at 506-507 (3).

There is no evidence in the record that Gentry negligently performed a ministerial act. Rather, the record shows that Gentry was a senior supervisor with wide discretion in managing the public works proj ects and employees in his division according to his personal deliberation and judgment. Gentry’s supervisor, David Clark, the Director of the Public Works Department, had established no policies, procedures, or protocols that required Gentry to personally inspect the roadways or any work that was performed by the work crews and inspectors in his division. Moreover, Clark did not instruct Gentry to directly supervise or inspect any repairs in the vicinity of Hutchins’ fall on East Clayton Street. Clark is the only person with direct supervisory authority over Gentry. The record shows that the persons who directly supervised the work performed on East Clayton Street during the relevant period were a crew manager and an inspector, both of whom reported to Gentry. Moreover, the crew manager deposed that he had discretion to modify work orders as needed to make road repairs without first getting approval from Gentry or an intermediate supervisor.

Decided February 1, 2013.

Begnaud & Marshall, Andrew H. Marshall, for appellant.

The record contains only two documents that can be construed as written protocols, and they concern the generation of work requests within the Streets and Drainage Division for street and sidewalk repair and maintenance. Neither protocol establishes any specific inspection or repair duties for Gentry in his capacity as superintendent. Further, the work orders in the record concerning repairs to East Clayton Street were not signed by Gentry, but were signed by other managers or supervisors within his division. Thus, given that there is no evidence in the record of any procedures or instructions concerning Gentry’s responsibility to inspect, maintain, or repair the road at issue in this case, there was no basis to conclude that there existed any procedures or instructions adequate to cause an act to become merely ministerial. “Absent such applicable standards, [the plaintiffs] cannot establish that the defendant’s actions were ministerial — namely, that the procedures or instructions were so clear, definite and certain as merely to require the execution of a relatively simple, specific duty.” (Citation and punctuation omitted.) Id. at 507 (3). Rather, the record before us shows that Gentry’s decisions were made in the personal judgment afforded government officials; consequently, his decisions are properly characterized as discretionary. See id. at 507-508 (3). Therefore, the trial court erred in denying Gentry’s motion for summary judgment.

Judgment reversed.

Phipps, P. J., and Dillard, J., concur.

Howell & Johnson, Evan H. Howell, Michael W. Johnson, for appellees.

       Hutchins filed a complaint against “Athens-Clarke County,” David Clark, the Director of the Athens-Clarke County Department of Transportation and Public Works, and Gentry, the Superintendent of the Streets and Drainage Division of the Public Works Department, alleging that the defendants negligently maintained the area and are responsible for her injuries and damages. Hutchins’ husband also brought a claim for loss of consortium. Pursuant to a consent order, the superior court granted judgment on the pleadings in favor of the Unified Government of Athens-Clarke County. The remaining defendants, Clark and Gentry, moved for summary judgment on official immunity grounds. The trial court granted Clark’s motion, but denied Gentry’s.

       The plaintiffs have not alleged that Gentry acted with malice or an intent to injure.

       Gentry’s remaining claims of error are moot.


source: Caselaw Access Project

author: Ellington, Chief Judge.

license: Public Domain

text:
    A12A2425.
    SMITH v. THE STATE.
    (738 SE2d 95)
   Ellington, Chief Judge.

Following a bench trial, the Superior Court of Newton County found Luther Smith guilty beyond a reasonable doubt of making a terroristic threat, OCGA § 16-11-37 (a). Following the denial of his motion for a new trial, Smith appeals, contending that the evidence was insufficient to support a finding that he had the requisite criminal intent. Finding no error, we affirm.

When reviewing a conviction after a bench trial,

[t]he issue before [the appellate court] is whether the evidence was sufficient to support a conviction under the standards of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Therefore, we view the evidence in the light most favorable to the [trial court’s judgment], and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence [,] nor do we determine the [witnesses’] credibility. Instead, we determine only whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

(Citations and punctuation omitted.) Brown v. State, 298 Ga. App. 545, 545-546 (680 SE2d 579) (2009). In particular, “[t]he intention with which an act is done is peculiarly for the finder of fact. It is often difficult to prove with direct evidence an individual’s intent as it existed at the time of the act for which [he] is being prosecuted. Thus, intent is often proved through the use of circumstantial evidence.” (Punctuation and footnotes omitted.) Williams v. State, 271 Ga. App. 755, 756 (610 SE2d 704) (2005).

Viewed in the light most favorable to the judgment, the evidence shows the following. On April 2, 2010, Smith entered a hair salon in Covington and asked the owner where he could have a check cashed. The owner of the salon told Smith that she did not know. After saying, “all I’m trying to do is get my d—n check cashed,” Smith left the salon. A few minutes later, Smith came back into the salon and loudly said to the owner and others present, “All I was trying to do was get my mother f-----g check cashed, and y’all act like y’all don’t know where no check cashing place is. I will tell y’all mother f—-s to get down on the floor and spray all you mother f—-s.” After arguing loudly with the owner for another ten minutes, prompting her to call 911, Smith left the salon and drove away.

A person commits the offense of a terroristic threat [, inter alia,] when he or she threatens to commit any crime of violence ... with the purpose of terrorizing another [.]... No person shall be convicted under this subsection on the uncorroborated testimony of the party to whom the threat is communicated.

OCGA § 16-11-37 (a). Here, the indictment accused Smith of committing terroristic threats specifically by threatening to commit aggravated assault with the purpose of terrorizing the salon’s owner and one of the customers. As such, the State was required to prove two essential elements: (1) that Smith threatened the victims with aggravated assault and (2) that he acted with the purpose of terrorizing them. Nelson v. State, 277 Ga. App. 92, 97 (1) (c) (625 SE2d 465) (2005). In arguing that his threat to make the victims get on the floor and to “spray” them, though laced with profanity and made in a loud tone of voice, was insufficient as a matter of law to show that he intended to terrorize them, Smith cites Hobby v. State, 298 Ga. App. 52 (679 SE2d 72) (2009). In that case, the finding of an intent to make a terroristic threat was based on evidence that the defendant threw a leaf blower at the victim, knocked him off his motorcycle, threatened to kill him, and then physically attacked him; the victim was injured. Id. at 53 (1).

Although there was evidence in Hobby v. State that physically violent conduct that injured the victim preceded and followed the verbal threat, however, such evidence is not the only basis for finding an intent to terrorize the victim of threat under Georgia law. Smith does not even attempt to argue that there could have been some purpose for his threat, such as humor, other than terrorizing the victims. We conclude that the evidence authorized a rational finder of fact to find that Smith’s purpose in returning to the salon after his request was rebuffed, loudly cursing, the victims, and threatening to force them to the floor and shoot them was to terrorize the victims. Enuka v. State, 314 Ga. App. at 467-468 (1); Williams v. State, 271 Ga. App. at 756; Jordan v. State, 214 Ga. App. at 347; Moss v. State, 139 Ga. App. at 136-137 (1).

Decided February 1, 2013.

Deepa M. Patel, Amanda R. Flora, Matthew W. Bridges, for appellant.

Layla H. Zon, District Attorney, Christopher M. DeNeve, Assistant District Attorney, for appellee.

Judgment affirmed.

Phipps, P. J., and Dillard, J., concur.

       See, e.g., Enuka v. State, 314 Ga. App. 466, 467-468 (1) (724 SE2d 471) (2012) (The evidence was sufficient to sustain a terroristic threat conviction where it showed that, after an enraged and profane confrontation with the victim, the defendant angrily returned to the scene and told the victim that he was “a dead man.”); Williams v. State, 271 Ga. App. at 756 (The evidence was sufficient to sustain a terroristic threat conviction where it showed that the defendant told a seven-year-old child that she was going to kill the child’s mother.); Jordan v. State, 214 Ga. App. 346, 347 (447 SE2d 341) (1994) (The evidence was sufficient to sustain a terroristic threat conviction where it showed that, during an acrimonious encounter with a police officer, the defendant told the officer that he better get a bulletproof vest for his head, “because we got your 308’s, your 9 millimeters,... your UZI’s[, and] your infrared[;] we got it all.”); Moss v. State, 139 Ga. App. 136, 136-137 (1) (228 SE2d 30) (1976) (The evidence was sufficient to sustain a terroristic threat conviction where it showed that the defendant threatened to kill police officers who were arresting him for creating a disturbance.).


author: Ellington, Chief Judge. DILLARD, Judge,

text:
    A12A1703.
    MOSBY v. THE STATE.
    (738 SE2d 98)
   Ellington, Chief Judge.

The State indicted Michael Mosby in the Superior Court of Gwinnett County on multiple counts of sexual offenses against four of his children. As to all but one count, the State alleged that the offenses occurred during a specified date range, rather than on a certain day.* Mosby filed a special demurrer, arguing that he expected his defense to include evidence that he did not reside in the family home at the time of several of the alleged offenses and, therefore, that the State should be required “to vastly narrow the alleged date range [s] so that [he] may better defend himself against the allegations” in the indictment. Mosby also filed a motion to dismiss and plea in bar, arguing that, as indicted, several counts are barred by the applicable statutes of limitation. After a hearing, the trial court overruled the special demurrer and denied the motion to dismiss, and Mosby appeals. As explained below, we reverse.

1. Mosby contends that the trial court erred in overruling his special demurrer because the State presented no evidence showing that it could not more specifically identify the dates of the offenses charged in Counts 1 through 14.

Generally, an indictment which fails to allege a specific date on which the crime was committed is not perfect in form and is subject to a timely special demurrer. However, where the State can show that the evidence does not permit it to allege a specific date on which the offense occurred, the State is permitted to allege that the crime occurred between two particular dates.

(Punctuation and footnotes omitted.) State v. Layman, 279 Ga. 340, 340-341 (613 SE2d 639) (2005). Further, “if an indictment alleges that a crime occurred between two particular dates, and if evidence presented to the trial court shows that the State can reasonably narrow the range of dates during which the crime is alleged to have occurred, the indictment is subject to a special demurrer.” Id. at 341. Thus, even when the State cannot identify a single date on which the offense occurred, the range of dates alleged in the indictment should not be unreasonably broad.

As we have emphasized, the exception to the single-date requirement is not applicable where the State fails to present evidence to the trial court to show that the State is unable to identify a single date on which an offense occurred, as, for example, when the victim is a child who may be incapable of adequately articulating exactly when the offense occurred — the State may not rely upon speculation or upon generalities about child victims. Blackmon v. State, 272 Ga. App. 854, 854-855 (614 SE2d 118) (2005). As Mosby’s counsel cogently argued at the hearing on his special demurrer,

Mr. Mosby is entitled to an evidentiary hearing. [Mr. Mosby] [h] aving filed his special demurrer, it falls to the State to put up evidence that they were unable to narrow the dates any better than they did____[The prosecutor’s arguments] would not be sufficient to constitute evidence before this Court.... [Mr. Mosby’s] defense will be prejudiced if we can’t have [the] date range [s] narrowed down. So I do call on the prosecutor to introduce evidence^] subject to scrutiny[,] about why that has not been done.

The State failed to answer this call, however, and relied only on its argument that the exception applies because “a child victim often cannot furnish the precise date of an alleged offense [;]... the law says that sometimes these children don’t remember exact dates [.]” As in Blackmon v. State, regardless whether the State was in fact unable to pinpoint the particular dates of the alleged crimes in this case,

we cannot speculate about such a matter____While evidence that the victim is a minor who is incapable of adequately articulating exactly when the offense occurred is a factor the trial court can take into account in determining whether the [S]tate carried its burden of showing that it cannot establish a specific date or time frame in which the offense or recurring offenses occurred, no such evidence appears in the record before us, and it appears the trial court did not require the [S]tate to make any such showing below.

(Punctuation and footnote omitted.) 272 Ga. App. at 855. Absent the required evidentiary showing, we must conclude that Counts 1 through 14 are imperfect and subject to the special demurrer. Id. Consequently, the trial court erred in overruling Mosby’s special demurrer, and, therefore, Blackmon v. State mandates that we reverse the trial court’s ruling.

We note that, if the trial court had overruled Mosby’s special demurrer without conducting a hearing at which the State had an opportunity to present evidence on the issue of its ability to identify the dates on which the offenses occurred, we would, as suggested by Judge Dillard in his dissenting opinion, vacate, rather than reverse, the trial court’s ruling and remand for the required evidentiary hearing. See Moore v. State, 294 Ga. App. 570, 576-577 (2) (669 SE2d 498) (2008). In this case, however, the State was afforded an opportunity to present evidence and failed to do so or to request a continuance of the hearing if necessary. Under the circumstances presented here, we conclude that remanding to give the State a second opportunity to shoulder its burden is inappropriate and unauthorized, barring legislative action which is beyond the purview of this Court.* *

Of course, our holding does not preclude the State from reindicting Counts 1 through 14 upon the return of this case to the trial court. Blackmon v. State, 272 Ga. App. at 855. See Division 2, infra.

2. Mosby contends that, as pled, eight counts of the indictment are barred by the applicable statutes of limitation and, therefore, that the trial court erred in denying his motion to dismiss and plea in bar to this extent. Although we have determined that the trial court erred in overruling Mosby’s special demurrer, for the reasons explained in Division 1, supra, we address the issue in light of the State’s ability to seek a new indictment upon the return of this case to the trial court.

(a) Mosby challenges Counts 1, 3, 4, and 6, which charged him with committing child molestation against A. M., “a child under the age of sixteen years,” during the 2001 calendar year. The record shows that A. M.’s date of birth is November 8, 1988; consequently, she was under 14 years of age at the time of each offense. OCGA § 17-3-1, as it was in effect at the time, provided that, where the victim was under 14 years of age at the time of the offense, prosecution for these felonies must be within seven years after the commission of the crime. As the State contends, however, pursuant to OCGA § 17-3-2.1 (a), the statutory period did not begin to run, at the earliest, until November 9, 2004, when A. M. reached 16 years of age.* ***5* Further, Counts 1, 3, 4, and 6 alleged that Mosby committed the offenses against a child under the age of 16, which sufficiently invoked the statute of limitation tolling provision set forth in OCGA § 17-3-2.1. State v. Godfrey, 309 Ga. App. 234, 238 (2) (709 SE2d 572) (2011). The indictment was filed on July 6, 2011, well before the seven-year statutory period expired on November 9, 2011. Accordingly, the trial court did not err in denying Mosby’s plea in bar as to these counts. Id. at 239 (2).

(b) Mosby raises a similar challenge to Counts 2 and 5, which charged him with committing aggravated child molestation against A. M., “a child under the age of thirteen years,” during the first ten months of 2001. Because the State did not allege that the victim was under the age of 16 in these counts, the tolling provision of OCGA § 17-3-2.1 was not invoked. See State v. Godfrey, 309 Ga. App. at 239 (2) (Alleging that the defendant committed child molestation and aggravated child molestation to a child under the age of 14 did not constitute an allegation that the victim was under the age of 16, as required to invoke the tolling provision of OCGA § 17-3-2.1.). Because the State failed to invoke the tolling provision of OCGA § 17-3-2.1 in Counts 2 and 5, and because the indictment was filed more than seven years after the commission of the crimes, the State failed to prosecute Mosby for these offenses within the time provided by law.

(c) Mosby raises a similar challenge to Count 9, which charged him with committing incest against A. M. during 2001. See OCGA § 16-6-22 (a) (1). The State did not allege that the victim was under the age of 16 in this count, however, and, therefore, as with Counts 2 and 5, the tolling provision of OCGA § 17-3-2.1 was not invoked. Consequently, the State failed to prosecute Mosby for this offense within the time provided by law.

(d) Mosby contends that prosecution is barred as to Count 10, which alleged that, between December 25 and December 31,2003, he committed aggravated sexual battery, OCGA § 16-6-22.2, against Br. T. As Mosby contends and the State concedes, the applicable period of limitation is seven years. And, as Mosby contends, the offense of aggravated sexual battery is not subject to the tolling provisions of OCGA § 17-3-2.1 (a). Consequently, the State failed to prosecute Mosby for this offense within the time provided by law.

Judgment reversed.

Phipps, P. J., Barnes, P. J., Miller, P. J., and McFadden, J., concur. Dillard and McMillian, JJ., dissent.

DILLARD, Judge,

dissenting.

I respectfully dissent. The record reflects that both Mosby and the State presented oral argument before the trial court, but Mosby specifically requested an evidentiary hearing on his special demurrer, positing that mere arguments to the court “would not be sufficient to constitute evidence before the Court.” But instead of holding an evidentiary hearing as Mosby requested, the trial court summarily denied his special demurrer. In doing so, the trial court erred; and the majority likewise errs in concluding that the indictment is subject to the special demurrer prior to an evidentiary hearing being held by the trial court. Accordingly, I would vacate the trial court’s order and remand for an evidentiary hearing on Mosby’s special demurrer.

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

Decided February 4, 2013.

Corso, Kennedy & Campbell, Arturo Corso, for appellant.

Daniel J. Porter, District Attorney, Marlene S. Zekser, Assistant District Attorney, for appellee.

       As to A. M., the indictment charged Mosby with committing incest during the 2001 calendar year, child molestation four times during 2001, and once during 2003, and aggravated child molestation twice during the first ten months of 2001 and once during 2004. As to Br. T., the indictment charged Mosby with committing child molestation during 2003 and aggravated battery during the last week of2003. As to A. T., the indictment charged Mosby with committing the offense of enticing a child during 2004. As to Be. T., the indictment charged Mosby with committing child molestation once during 2004 and once during 2005. Collectively, these were listed as Counts 1 through 14 in the indictment. The indictment also charged Mosby with committing child molestation against Be. T. on December 25, 2006 (Count 15).

       See also State v. Gamblin, 251 Ga. App. 283, 283-284 (1) (553 SE2d 866) (2001) (affirming order sustaining a special demurrer as to two counts of child molestation and sexual battery that were alleged to have occurred within a two-year period on the basis that the State failed to show that the exact dates were unknown). We note that the cases cited by the State, including Schwindler u. State, 254 Ga. App. 579, 582 (2) (563 SE2d 154) (2002); Gentry v. State, 235 Ga. App. 328, 329(3) (508 SE2d 671) (1998); and Hutton v. State, 192 Ga. App. 239, 241 (4) (384 SE2d 446) (1989), are inapposite because different standards apply to rulings on special demurrers that are reviewed before trial and those reviewed after trial. State v. Gamblin, 251 Ga. App. at 284 (1); see also Blackmon v. State, 272 Ga. App. at 854 (accord). In reviewing a special demurrer filed after a trial has already occurred, this Court is able to review all the evidence to determine whether a defendant was in fact surprised or otherwise prejudiced by the lack of specificity in an indictment. State v. Gamblin, 251 Ga. App. at 284 (1).
      Because we are reviewing [Mosby’s] indictment before any trial, [on the other hand,] we do not conduct a harmless error analysis to determine if he has actually been prejudiced by the alleged deficiencies in the indictment; rather, we must apply the rule that a defendant who has timely filed a special demurrer is entitled to an indictment perfect in form and substance.
      (Footnote omitted.) Blackmon v. State, 272 Ga. App. at 854. See also State v. Gamblin, 251 Ga. App. at 284 (1).

       We note that State v. Layman, cited by Judge Dillard, stood in a very different procedural posture from this case and provides no authority for vacating the trial court’s ruling and remanding this case for a hearing. See 279 Ga. at 341-342 (After the State presented extensive evidence on the issue of whether it was able to narrow the range of dates on which the crimes allegedly occurred, the trial court found that the State could reasonably narrow the range of dates and sustained the demurrer. The Supreme Court of Georgia agreed with the trial court’s analysis of the evidence on that issue and, therefore, affirmed its ruling.).

       Because neither Mosby’s special demurrer nor his motion to dismiss and plea in bar raised any challenge to Count 15, our decision regarding his appeal from the trial court’s rulings does not affect that count.

       See OCGA § 17-3-3 (“If an indictment is found within the time provided for in Code Section 17-3-1 or 17-3-2, or other applicable statute, and is quashed or a nolle prosequi entered, the limitation shall be extended six months from the time the first indictment is quashed or the nolle prosequi entered.”); Wallace v. State, 253 Ga. App. 220, 222 (3) (558 SE2d 773) (2002) (When a defendant files a special demurrer challenging the form of an imperfect indictment, “the quashing of [the] indictment merely bars trial on the flawed indictment; it does not bar the State from reindicting the defendant.”) (footnote omitted).

       [Unless otherwise specified,] [p]rosecution for felonies . . . must be commenced within four years after the commission of the crime, provided that prosecution for felonies committed against victims who are at the time of the commission of the offense under the age of 14 years must be commenced within seven years after the commission of the crime.
      OCGA § 17-3-1 (c) (2001). See State v. Godfrey, 309 Ga. App. 234, 238, n. 1 (709 SE2d 572) (2011) (“Former OCGA § 17-3-1 (e)[, which] provided a seven-year limitation period for prosecutions involving victims under the age of 14,... [is] applicable to offenses committed prior to 2002”).

       For crimes committed during the period beginning on July 1,1992, and ending on June 30, 2012, if the victim of a violation of:
      (5) Child molestation or aggravated child molestation, as defined in Code Section 16-6-4;. . . [or]
      (7) Incest, as defined in Code Section 16-6-22, is under 16 years of age on the date of the violation, the applicable period within which a prosecution shall be commenced under Code Section 17-3-1 or other applicable statute shall not begin to run until the victim has reached the age of 16 or the violation is reported to a law enforcement agency, prosecuting attorney, or other governmental agency, whichever occurs earlier. . . .
      OCGA § 17-3-2.1 (a). We note that Mosby does not contend that the offenses were reported to law enforcement before November 9, 2004.

       “A person commits the offense of incest when such person engages in sexual intercourse or sodomy... with a person whom he or she knows he or she is related to either by blood or by marriage as... [fjather and child or stepchild[.]” OCGA § 16-6-22 (a) (1). There is no limitation regarding the age of the victim.

       OCGA § 17-3-1 (c) (2011) (“[FJelonies committed against victims who are at the time of the commission of the offense under the age of 18 years shall be commenced within seven years after the commission of the crime.”).

        See State v. Layman, 279 Ga. 340, 341 (613 SE2d 639) (2005) (noting that an “indictment is subject to a special demurrer” only when the “indictment alleges that a crime occurred between two particular dates, and if evidence presented to the trial court shows that the State can reasonably narrow the range of dates during which the crime is alleged to have occurred” (emphasis supplied)).

        See Moore v. State, 294 Ga. App. 570, 576 (2) (669 SE2d 498) (2008) (vacating denial of special demurrer and remanding for an evidentiary hearing).


author: DOYLE, Presiding Judge.

text:
    A12A1861.
    SUGARLOAF PLAZA, LLC. et al v. TOUCHMARK NATIONAL BANK et al.
    (738 SE2d 104)
   DOYLE, Presiding Judge.

This appeal arises from the trial court’s order confirming a sale under power of certain Gwinnett County property instigated by Touchmark National Bank and TMAK Properties, LLC (collectively “Touchmark”), after Sugarloaf Plaza, LLC, the borrower on the underlying note, and Alan Ahlzadeh, Barham Ahlzadeh, and Dennis Ahlzadeh, each guarantors (collectively “Sugarloaf”), failed to repay the deed to secure debt on the property. Sugarloaf appeals, challenging the confirmation order because Touchmark failed to admit a certified copy of the deed to secure debt or evidence that a default occurred and thereby triggered Touchmark’s power to foreclose. For the reasons that follow, we affirm.

The trial court is the trier of fact in a confirmation proceeding, and an appellate court will not disturb its findings if there is any evidence to support them. Furthermore, we do not determine witness credibility or weigh the evidence and we view the evidence in the light most favorable to the trial court’s judgment.

In the event that a non-judicial foreclosure sale does not bring the amount owed under a secured instrument, OCGA § 44-14-161 sets forth the confirmation procedure that a person instituting a foreclosure proceeding must follow in order to obtain a deficiency judgment on the remainder against the debtor. OCGA § 44-14-161 (a) requires that the lienholder report the sale to the superior court of the appropriate county within 30 days and petition that court for confirmation of the sale. The Code section requires that the court conduct a hearing on the petition and “require [s] evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.” In addition to the showing of true market value, the court “shall also pass upon the legality of the notice, advertisement, and regularity of the sale.”

1. Sugarloaf argues that the trial court erred by confirming the foreclosure sale because Touchmark failed to admit into evidence a certified copy of the deed to secure debt.

OCGA § 44-14-161 (c) requires the trial court to pass on the legality of the notice, the advertisement, and the regularity of the sale. When a power of sale is exercised all that is required of the foreclosing party is to advertise and sell the property according to the terms of the instrument, and that the sale be conducted in good faith.
The duty of the court is to test the fairness of the technical procedure of the actual sale and to [e]nsure that the sale has brought at least the true market value of the property. The statute does not contemplate that the court shall undertake to decide controversies between the parties as to the amount of the debt or side agreements which could have been the basis of an injunction preventing the foreclosure sale. Issues which go to the heart of the underlying obligation itself should be raised within the confines of a subsequent suit for a deficiency judgment.

Pretermitting the issue of whether the trial court erred by overruling Sugarloaf’s objection to admission of a noncertified copy of the deed to secure debt, Sugarloaf has not shown error to support reversal of the trial court’s order confirming the sale. Sugarloaf argues that without an admissible copy of the deed to secure debt, the trial court was not able to confirm the sale because (1) the court could not determine whether the sale met the requirements of the document; (2) the court could not determine whether the entity conducting the sale was the appropriate party in interest; and (3) the court could not determine whether the sale was properly advertised. This Court has repeatedly held, however, that issues such as the right to foreclose or those related to the underlying debt are irrelevant to the confirmation proceeding. With regard to issues of notice and advertisement, the attorney who conducted the sale provided admissible testimony as to the advertisement, notice, and regularity of the actual sale, supporting documents thereto, including the newspaper advertisement, affidavit of publication, and deed under power of sale, were admitted without objection; and the trial court was authorized to accept that testimony as credible and to rely on the other properly admitted documents to support its confirmation order.* Finally, Sugarloaf has failed to advance any argument regarding how the advertisement, notice, or sale were defective or irregular in contravention of the other properly admitted evidence.

Decided February 4, 2013.

Kutak Rock, Elizabeth L. Fite, for appellants.

2. Sugarloaf argues that the trial court erred by confirming the foreclosure sale because Touchmark failed to provide sufficient evidence of a default necessary to trigger the power of sale. This issue, however, is irrelevant to a confirmation proceeding.

Judgment affirmed.

Andrews, P. J., and Boggs, J., concur.

Smith, Gambrell & Russell, John R. Autry, Kelley B. Gray, for appellees.

       See OCGA § 44-14-161.

       Defendant Jay Parekh is not a party to this appeal.

       (Punctuation omitted.) Greg A. Becker Enterprises v. Summit Investment Mgmt. Acquisitions I, 314 Ga. App. 721 (725 SE2d 841) (2012).

       See OCGA § 44-14-161 (a).

       See id.

       OCGA § 44-14-161 (b).

       OCGA § 44-14-161 (e).

       (Punctuation omitted.) Winstar Dev. v. SunTrust Bank, 308 Ga. App. 655, 662 (3) (708 SE2d 604) (2011) (physical precedent only), citing Hudson Trio, LLC v. Buckhead Community Bank, 304 Ga. App. 324, 329 (3) (696 SE2d 372) (2010).

       (Citations and punctuation omitted.) Alexander v. Weems, 157 Ga. App. 507 (1) (277 SE2d 793) (1981).

       See White Oak Homes v. Community Bank & Trust, 314 Ga. App. 502, 505 (3) (724 SE2d 810) (2012) (“A confirmation proceeding is a limited statutory proceeding in which an assignment issue is not relevant.”). See also McCain v. Galloway, 267 Ga. App. 505, 507 (1) (600 SE2d 449) (2004) (issue of whether individual instituting foreclosure was a real party in interest irrelevant to the confirmation proceeding). Cf. Harris & Tilley, Inc. v. First Nat. Bank of Cartersville, 157 Ga. App. 88, 91 (5) (276 SE2d 137) (1981) (holding that the trial court properly refused to dismiss confirmation proceedings wherein guarantors challenged the legality of releases issued to borrower covered by original deed to secure debt because the matter was irrelevant to the issue of confirmation).

       See Pine Grove Builders v. SunTrust Bank, 307 Ga. App. 764-766 (2) (706 SE2d 129) (2011) (holding that sufficient evidence supported the trial court’s confirmation of the sale under power because the bank produced testimony that the sale occurred from an eyewitness to the sale). Compare with Franklin v. First Ga. Banking Co., 310 Ga. App. 259, 260-261 (712 SE2d 642) (2011) (no competent evidence presented that the sale actually occurred or the outcome of that sale beyond the document, which constituted hearsay evidence). Cf. Winstar Dev., 308 Ga. App. at 662 (3) (physical precedent only) (holding that attorney’s testimony that she witnessed sale was competent evidence to establish regularity of sale and nothing in the statute required a trial court to deny confirmation if no deed under power of sale was admitted into evidence).

       See White Oak Homes, 314 Ga. App. at 505-506 (4).

       See Hamilton Mtg. Corp. v. Bowles, 142 Ga. App. 882, 884 (3) (237 SE2d 198) (1977).


text:
    A12A2342.
    PERKINS v. THE STATE.
    (738 SE2d 106)
   DOYLE, Presiding Judge.

Following a jury trial, Adrian Perkins was convicted of seven counts of armed robbery. He appeals the denial of his motion for new trial, arguing (1) that the trial court erred by impermissibly commenting on the evidence in violation of OCGA § 17-8-57 and (2) that the State failed to prove venue as to two of the counts of armed robbery. We affirm, for the reasons that follow.

Construed in favor of the verdict, the record shows that the State charged Perkins with eight counts of armed robbery and one count of aggravated assault against eight individuals in six separate incidents, alleging that Perkins used a handgun in each incident. The trial court dead-docketed the aggravated assault charge and one count of armed robbery, which counts related to a single victim.

At trial, the State introduced evidence that Perkins approached each victim with a handgun and demanded their property including, in some instances, their vehicles. One victim was unable to identify Perkins, but another victim involved in the same incident identified him in a photographic lineup. The other five victims identified Perkins in photographic lineups and at trial as their assailant. Perkins’s fingerprints were found on three of the stolen vehicles, and a witness testified that Perkins told her that “he robbed people all the time.” The State also introduced similar transaction evidence in which the victim identified Perkins as the individual who robbed him at gunpoint.

The jury found Perkins guilty on all seven counts of armed robbery. The trial court denied Perkins’s subsequent motion for new trial, and this appeal followed.

1. Perkins argues that the trial court impermissibly commented on the evidence in violation of OCGA § 17-8-57. This argument presents no basis for reversal.

During the trial, the trial court advised counsel and the defendant, outside the presence of the jury, as follows:

[0]ne of the jurors has reported to the bailiff that one of the people in this courtroom, she thinks it was a family member, gestured to her and tried to get her to come over and talk to him. It was an intimidating factor on their part. I’m not sure exactly who it was. I’m going to bring the juror in, and I’m going to ask if that person is present in the courtroom, and then I’ll have to decide what to do.

The juror explained that as she was leaving a restaurant during the lunch break, a man signaled for her to go over and talk to him; she showed the man her juror badge and walked away. The juror described the man and was then directed to return to the jury room. The court then had Perkins’s family members escorted into the courtroom and advised them that it had “reason to believe that the person who may have been gesturing to the juror was a family member” and warned them that anyone who contacted any members of the jury court staff, or the parties would be cited for contempt and jailed. Then, after all of the jurors returned to the courtroom, the trial court asked the juror who reported the incident whether “the person who gestured towards [her was] in the courtroom at this time,” and she responded in the negative.

Later, before court recessed for the day, the trial court explained: “[B]ecause of the earlier incident, I’m going to ask the bailiff to escort the jurors to the parking deck. And I will direct that any family members of Mr. Perkins remain in the courtroom until after the jurors have departed the parking deck. That will be the order of the court. . . .” The following day, before releasing the jurors for lunch, the trial court explained to them: “[W]hen you go to lunch you will have deputies with you. We had an incident yesterday where someone attempted to talk to one of the jurors. That’s impermissible, so security will be with you. . . .”

During the jury instructions, the trial court instructed the jurors that “by no ruling or comment. . . has the court intended to express any opinion about the facts of this case, upon the credibility of the witnesses, upon the evidence, or upon the guilt or innocence of the defendant.”

On appeal, Perkins argues that he was denied his right to a fair trial as a result of the trial court’s comments, which Perkins alleges violated OCGA § 17-8-57. Although Perkins failed to object to the trial court’s comments, “we will nevertheless analyze this argument under the plain error rule.” 3OCGA § 17-8-57 provides:

It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision in the case reversed, and a new trial granted in the court below with such directions as the Supreme Court or Court of Appeals may lawfully give.

“ ‘To violate this statute, the comments must focus on a disputed issue of fact.’ ”

Here, in the presence of the jury, the trial court asked the juror whether the man who attempted to contact her at lunch was in the courtroom, directed the bailiff to accompany the jurors to the parking deck, and directed Perkins’s family members to remain in the courtroom until after the jurors left the parking lot. These comments did not “express or intimate” the trial court’s opinion regarding the evidence or Perkins’s guilt. Thus, Perkins’s argument that his conviction should be reversed because the trial court violated OCGA § 17-8-57 is without merit.

2. Perkins contends that the State failed to prove venue for two of the armed robbery counts.

Generally, a criminal action must be tried in the county in which the crime was committed, and the State may establish venue by whatever means of proof are available to it, including direct and circumstantial evidence. As an appellate court, we view the evidence in a light most favorable to support the verdict and determine whether the evidence was sufficient to permit a rational trier of fact to find beyond a reasonable doubt that the crime was committed in the county where the defendant was indicted.

Decided February 4, 2013

Brian Steel, for appellant.

Robert D. James, Jr., District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellee.

Here, one of the victims testified that he went to a nightclub in DeKalb County and parked “close to” the club, “maybe a five minutes’ walk.” He and his companion were robbed when they returned to the car. There was no direct evidence that the scene of the robbery was located in DeKalb County. Instead, the direct evidence established only that the nightclub, located a five-minute walk away from the scene of the robbery, was in DeKalb County. “Establishing the venue of a near-by site does not establish the venue of the murder site itself.” There was, however, “circumstantial evidence from which the jury could conclude beyond a reasonable doubt that venue was in [DeKalb] County.” The police detective who compiled the photographic lineup that the victim eventually viewed testified that he was a DeKalb County police detective, and the photographic lineup admonition form that the victim signed was labeled “DeKalb Police.” “In light of the well-settled principle that public officials are believed to have performed their duties properly and not to have exceeded their authority unless clearly proven otherwise, the jury was authorized to find the police officer acted within the territorial jurisdiction in which he testified he was employed, [DeKalb County] .” Accordingly, this enumeration is without merit.

Judgment affirmed.

Andrews, P. J., and Boggs, J., concur.

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

        Wright v. State, 294 Ga. App. 20, 21 (3) (668 SE2d 505) (2008). See also Linson v. State, 287 Ga. 881, 883 (2) (700 SE2d 394) (2010) (“[A] violation of OCGA § 17-8-57 will always constitute ‘plain error,’ meaning that the failure to object at trial will not waive the issue on appeal. On appeal, the issue is simply whether there was such a violation. If so, it is well established that the statutory language is mandatory and that a violation of OCGA § 17-8-57 requires a new trial.”) (citations and punctuation omitted).

        Bush v. State, 317 Ga. App. 439, 441 (2) (731 SE2d 121) (2012).

       See Linson, 287 Ga. at 883 (2); Wright, 294 Ga. App. at 21 (3) (trial court’s admonition to defense counsel to controlhis clients, who “think this is a comedy,” didnot violate OCGA § 17-8-57 because it “was not directed toward a material issue nor was it an intimation on [the defendant’s] guilt or innocence”).

       (Citations omitted.) Chapman v. State, 275 Ga. 314, 317 (4) (565 SE2d 442) (2002), citing Ga. Const. 1983, Art. VI, Sec. II, Par. VI and OCGA § 17-2-2 (a).

        Chapman, 275 Ga. at 317 (4), citing Jones v. State, 272 Ga. 900, 903-904 (3) (537 SE2d 80) (2000).

        Chapman, 275 Ga. at 317 (4).

       (Citations omitted.) Id. at 317-318(4). But see King v. State, 271 Ga. App. 384, 387 (1) (609 SE2d 725) (2005) (“the investigating officers’ county of employment does not, in and of itself, constitute sufficient proof of venue to meet the beyond a reasonable doubt standard”).


text:
    A12A2452.
    FORD v. THE STATE.
    (738 SE2d 111)
    Decided February 4, 2013.

      Benjamin A. Pearlman, for appellant.

      Kenneth W. Mauldin, District Attorney, James V. Chafin, Assistant District Attorney, for appellee.
   DOYLE, Presiding Judge.

Gary Ford filed a direct appeal from the trial court’s denial of his pre-trial plea in bar based upon an alleged violation of his constitutional right to a speedy trial. The Supreme Court of Georgia has recently ruled, however, that such a claim is not directly appealable and that a defendant must follow the interlocutory appeal procedures of OCGA § 5-6-34 (b). Ford’s appeal is therefore dismissed.

Appeal dismissed.

Andrews, P. J., and Boggs, J., concur.

       See Sosniak v. State, 292 Ga. 35, 36 (2) (734 SE2d 362) (2012).

       See Stevens v. State, 292 Ga. 218 (734 SE2d 743) (2012); Morris v. State, 319 Ga. App. 198 (734 SE2d 926) (2012).


author: McFADDEN, Judge.

text:
    A12A2575.
    BATTS v. THE STATE.
    (738 SE2d 109)
   McFADDEN, Judge.

Daymond Leroy Batts, Jr., appeals his conviction for hindering the apprehension or punishment of a criminal in violation of OCGA § 16-10-50 (a) (1). Batts argues that the evidence was insufficient to support the conviction. Because there is sufficient evidence to support the jury’s verdict, we affirm.

When a defendant challenges the sufficiency of the evidence supporting his criminal conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). It is the function of the jury, not the reviewing court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. Id. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citations and punctuation omitted.) Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001).

Viewed in the light most favorable to the prosecution, the evidence shows that on August 28, 2008, Eugene Leslie shot and killed Jason Wade at Wade’s residence. After the shooting, Leslie and his friend, Elizabeth Moore, left Wade’s residence and returned to their motel room, where they called and sent text messages to Batts, who is Leslie’s nephew.

Batts came to their room, and Leslie told Batts that he had killed Wade. Batts told Leslie that there was nothing he could do for Leslie, and that Leslie’s best'bet was to get out of town and return to New York. The next day, Batts helped Moore and Leslie move to another motel.

Although the police had been given Leslie’s name, they could not locate him and began searching for him. The day after the shooting, with help from Leslie’s cell phone service provider, the police were able to narrow down his location. They began surveillance in that area, spotted Batts’s vehicle, and stopped it. Batts and Leslie were arrested. Batts admitted that he had been in another city in Georgia with Leslie earlier that day. He also knew that the police were looking for someone that matched Leslie’s description.

Under OCGA § 16-10-50 (a) (1),

[a] person commits the offense of hindering the apprehension or punishment of a criminal when, with intention to hinder the apprehension or punishment of a person whom he knows or has reasonable grounds to believe has committed a felony or to be an escaped inmate or prisoner, he . . . [h] arbors or conceals such person.

The jury was authorized to conclude beyond a reasonable doubt that Batts knew Leslie had committed a felony; that he aided in harboring Leslie by helping him move from one motel to another and by driving him to another city; and that his acts were intentional. This evidence was sufficient to support his conviction under Jackson v. Virginia, 443 U. S. 307. See Moore v. State, 94 Ga. App. 210, 215 (1) (94 SE2d 80) (1956) (evidence that defendant knew that a man had “killed [another] without justification and that by allowing him to ride in his automobile away from the scene of the crime — albeit for only a short distance — he aided [the man] in escaping arrest” was sufficient to support conviction).

Judgment affirmed.

Barnes, P. J., and McMillian, J., concur.

Decided February 4, 2013.

James I. Collins, Jr., for appellant.

George H. Hartwig III, District Attorney, Marie R. Banks, Assistant District Attorney, for appellee.


author: BARNES, Presiding Judge.

text:
    A11A0720.
    HODGES v. THE STATE.
    (738 SE2d 111)
   BARNES, Presiding Judge.

A jury convicted Mario Hodges of aggravated assault, possession of a firearm during the assault, and misdemeanor involuntary manslaughter as a lesser included offense of felony murder. Hodges appealed, arguing that the trial court erred in sustaining the State’s objection to state-of-mind evidence, in qualifying a witness as an expert, and in giving the State’s requested jury charge on revenge as a motive, and that his trial counsel was ineffective for failing to obtain an expert witness to rebut the State’s claim he acted with excessive force. For the reasons that follow, we affirm.

1. This court addressed Hodges’ first enumeration of error in Hodges v. State, 311 Ga. App. 46 (714 SE2d 717) (2011), and reversed, holding that the trial court erred by excluding evidence regarding Hodges’ state of mind when he shot the victim. The Supreme Court of Georgia granted the State’s petition for certiorari and reversed this court, concluding that the trial court did not err by refusing to allow Hodges to testify about a violent incident regarding the victim and third parties. State v. Hodges, 291 Ga. 413 (728 SE2d 582) (2012). We hereby adopt the Supreme Court’s reasoning regarding Hodges’ first enumeration of error and hold that the trial court did not err in this respect.

2. Hodges asserts that the trial court erred in allowing a crime scene technician to testify as an expert on blood spatter analysis, arguing that the technician was not qualified to be an expert and that the testimony should have been excluded because the State failed to comply with discovery requirements. We review a trial court’s decision to allow expert opinion evidence for abuse of discretion. Ashley v. State, 316 Ga. App. 28, 31 (2) (728 SE2d 706) (2012).

(a) Hodges first contends that the trial court erred in allowing the witness as a blood spatter expert because she was not qualified. Whether a witness is sufficiently qualified to render an opinion within her area of expertise is a question of law for the trial court to decide. Ashley, 316 Ga. App. at 31 (2). “To qualify as an expert, generally all that is required is that a person must have been educated in a particular skill or profession; his special knowledge may be derived from experience as well as study. Formal education in the subject at hand is not a prerequisite for expert status.” (Citation and punctuation omitted.) Thomas v. State, 290 Ga. 653, 658 (5) (723 SE2d 885) (2012).

Holmes did not object to the witness’s testimony on the ground that she was insufficiently qualified, however. After the State asked questions regarding the witness’s training and experience, it proffered her as an expert in crime scene investigations and blood spatter analysis. When the trial court asked if Hodges had any questions regarding the witness’s expertise, he responded that he had no objection to her testifying about her observations from processing the crime scene, “but if she’s going to be giving some sort of opinion, that’s well beyond what’s been provided to us and would be improper.” The court ruled that the witness could “testify [to] what she observes and what it’s consistent with,” and qualified her as an expert “for this purpose.” The next day, after the witness had testified on direct and on cross-examination, Hodges moved for a mistrial, but again, not on the basis that the witness was unqualified, but because the State had not reduced the expert opinions to writing and given it to him.

“It is well settled that grounds which may be considered on appeal are limited to those which were raised at trial, and an objection on a specific ground at trial waives any objection to that evidence on other grounds on appeal.” (Punctuation and footnote omitted.) Seibert v. State, 294 Ga. App. 202, 206 (2) (670 SE2d 109) (2008). Accordingly, we do not review this issue.

(b) Hodges also argues that, if the technician was properly qualified as an expert, then the State should have given him a written summary of her findings no later than ten days before trial pursuant to OCGA § 17-16-4 (a) (4). Because the State did not do so, he contends, the trial court should have excluded the opinion evidence. The applicable version of OCGA § 17-16-4 (a) (4), effective until January 1, 2013, provides that the State must permit the defendant to inspect and copy any reports “of scientific tests or experiments, including a summary of the basis for the expert opinion rendered” if the State intends to introduce in evidence the test results. It further provides that “[i]f the report is oral or partially oral, the prosecuting attorney shall reduce all relevant and material oral portions of such report to writing and shall serve opposing counsel with such portions no later than ten days prior to trial.” Id.

OCGA § 17-16-6 provides:

If at any time during the course of the proceedings it is brought to the attention of the court that the state has failed to comply with the requirements of this article, the court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances. . . .

“[T]o obtain the exclusion of evidence for the State’s alleged discovery violation, [Hodges] must show both prejudice and bad faith.” Clay v. State, 290 Ga. 822, 841 (5) (B) (725 SE2d 260) (2012); see also Leger v. State, 291 Ga. 584, 586 (2) (732 SE2d 53) (2012). In this case, Hodges showed neither. Further, he did not seek a recess or continuance or request any other remedy authorized by OCGA § 17-16-6, except to object to the witness being qualified as an expert and giving opinion evidence.

Hodges argues that the Supreme Court’s analysis in Stinski v. State, 286 Ga. 839, 857 (62) (691 SE2d 854) (2010), “is a clear signal that both parties must reveal to each other the conclusions that experts have reached based upon their analysis of the information that they have obtained,” and that the State’s failure to do so here is reversible error. The Supreme Court in Stinski held that the trial court did not err in ordering Stinski’s psychologist to provide the State with a copy of the interview notes upon which she was relying as the basis for her expert opinions during the sentencing hearing, as a remedy for the defendant’s failure to give the State an updated “summary” of the basis for those opinions. Id. at 857 (62). The holding in Stinski does not support the argument that admitting opinion evidence over objection based on a discovery violation, absent a showing of bad faith and prejudice, is reversible error.

3. Hodges argues that the trial court erred in giving the State’s requested charge that self-defense must be motivated by fear and “not in a spirit of revenge,” asserting that the charge was improper because the State introduced no evidence that Hodges’ actions were motivated by revenge.

In its lengthy charge on the affirmative defenses of justification and self-defense, the trial court mentioned revenge three times. The trial court instructed the jury that for the “use of force to be justified under the law, the accused must have really acted upon the influence of these fears [of imminent harm] and not in a spirit of revenge,” that a person is not justified in assaulting someone “solely in revenge for a past or previous wrong,” and that the jury was authorized to convict the defendant if it found force was used “for the sole purpose of avenging a past or previous wrong.”

Jury charges must be correct statements of the law and, as a whole, must not mislead a jury of ordinary intelligence. Sims v. State, 296 Ga. App. 461, 464 (3) (675 SE2d 241) (2009). Here, Hodges does not contend that the charges were incorrect statements of the law, only that no evidence supported them. “[T]o authorize a jury instruction on a subject, there need only be produced at trial slight evidence supporting the theory of the charge. Whether the evidence presented is sufficient to authorize the giving of a charge is a question of law.” (Punctuation omitted.) Robison v. State, 277 Ga. App. 133, 135 (2) (625 SE2d 533) (2006). Here, Hodges and the victim had been friends a long time but had an ongoing dispute about money Hodges owed to the victim, and had argued about it the night before the victim died. Hodges himself testified that the victim had threatened to kill him and “get [his] people.” Thus, at least slight evidence supported the charges as given. Accordingly, we find no error in the trial court’s charge to the jury on justification and defense of self.

4. Hodges contends that his trial counsel was ineffective for failing to call an expert witness to rebut the State’s claim he used excessive force. To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and that the inadequate performance prejudiced the defense. Harris v. State, 268 Ga. 412 (490 SE2d 96) (1997), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). The defendant must overcome the strong presumption that counsel’s conduct fell within the broad range of professional conduct and demonstrate a reasonable probability that the outcome of the proceedings would have been different were it not for counsel’s deficiencies. Id. at 412-413. We will affirm a trial court’s determination that a defendant was not denied effective assistance of counsel unless that determination is clearly erroneous. Herndon v. State, 235 Ga. App. 258, 259 (509 SE2d 142) (1998).

Decided February 5, 2013.

Lee W. Fitzpatrick, for appellant.

To explain the circumstances surrounding his third shot at the victim, who was running away, Hodges’ trial counsel presented an expert witness at sentencing who testified about the effects of “tunnel vision,” in which once a person begins to act in a threatening situation, he does not stop until the threat has ended. Hodges argues that his trial counsel was ineffective for failing to present this expert during the trial.

Trial counsel testified at the motion for new trial hearing that he focused his efforts on establishing that Hodges acted in self-defense by finding witnesses who could testify about the victim’s violent acts. He further testified that he wanted to bring forth evidence which law enforcement officials had failed to consider and show that this evidence was consistent with Hodges’ description of events. He reviewed voluminous evidence, received additional discovery material from the State a couple of weeks before trial, and secured the last witness to testify about matters related to self-defense only days before trial. He did not consider calling an expert to talk about Hodges’ psychological state when he fired his weapon at the victim the third time, but knew that was an issue and planned to question the law enforcement witnesses to establish that even trained officers might not recall every detail about a stressful event like a gun fight. One of the officers testified that Hodges told him he “kind of blacked out” after firing the shotgun the first time, and defense counsel brought out in cross-examination that the officer believed him. Further, trial counsel testified, he intended to show that no evidence established that Hodges knew the victim had been hit with the first shot, which explained the second shot. Counsel did not consider hiring an expert for trial because his plan was not “to try to go that route in the trial itself. Just because of the nature of experts and how they are perceived sometimes, [he] didn’t want the jury to be thinking we were trying to pay somebody to say the right thing.”

Under these circumstances, trial counsel’s decision not to call an expert to discuss Hodges’ psychological state during the incident was “within the realm of trial tactics and strategy and provides no basis for a claim of ineffective assistance of counsel.” Pippins v. State, 263 Ga. App. 453, 458 (4) (a) (588 SE2d 278) (2003). Accordingly, the trial court committed no error in determining that Hodges was not denied effective assistance of counsel.

Judgment affirmed.

Ray and McMillian, JJ., concur.

Patrick H. Head, District Attorney, Jason R. Samuels, Anna G. Cross, D. Victor Reynolds, Assistant District Attorneys, for appellee.

       Because Hodges has not argued that the jury charges at issue are legally incorrect, we do not consider whether cases holding that the absence of revenge is an essential element of justification are still good law. E.g., Thompson v. State, 281 Ga. App. 627, 632 (4) (636 SE2d 779) (2006); Hill v. State, 250 Ga. App. 9, 12 (1) (550 SE2d 422) (2001); Jack v. State, 245 Ga. App. 216, 218 (3) (536 SE2d 235) (2000). We note, however, that the 1933 Code’s requirement that a defendant claiming justification show that he did not act in a “spirit of revenge,” Lackey v. State, 217 Ga. 345, 347 (3) (122 SE2d 115) (1961), was removed from the 1968 Code, § 26-902, and its successor, OCGA § 16-3-21 (a). Our law now provides that a defendant may prove he was justified in using force if he reasonably believed it was necessary to prevent death or great injury to himself or a third person, or to prevent a forcible felony, and no longer requires that he show he did not act from revenge. Brooks v. State, 227 Ga. 339, 342 (3) (180 SE2d 721) (1971).


author: Dillard, Judge.

text:
    A12A1715.
    HERNANDEZ-LOPEZ v. THE STATE.
    (738 SE2d 116)
   Dillard, Judge.

In this interlocutory appeal, Salomon Hernandez-Lopez appeals the trial court’s denial of his motion to suppress, which was related to a traffic stop following a law-enforcement officer’s use of a license-plate reader system. Hernandez-Lopez argues that (1) the officer lacked reasonable, articulable suspicion to perform the traffic stop and (2) the license-plate reader system fails to meet foundational requirements for admissibility as established for radar detectors. For the reasons set forth infra, we affirm the trial court’s denial of Hernandez-Lopez’s motion to suppress.

Construing the evidence most favorably to uphold the trial court’s findings and judgment, the record reflects that some of the Gwinnett County Sheriff’s Department patrol cars are equipped with license-plate reader (“LPR”) systems. This system consists of mounted cameras that read license plates of passing vehicles to transmit the information to a database of wanted persons. The database is updated daily and includes information about the wanted person and the relevant vehicle. The information is provided by the Georgia Bureau of Investigation, Department of Motor Vehicles, Federal Bureau of Investigation, and Warrant Division. When the LPR recognizes a license plate linked to a wanted person, the system makes an audible alert; notifies the officer of a “wanted person”; and provides the officer with an opportunity to view the information the system has retrieved, including the person’s name and date of birth, the reason the person is sought, and a color photograph of the vehicle and its license plate.

On the day in question, an officer with the Gwinnett County Police Department was patrolling Georgia State Route 316 in a car with an LPR system when he received a “wanted person” alert. The alert indicated that the wanted person was a male named Eloy Hernandez-Lopez and that he was being sought for failure to appear in court. Upon identifying the relevant vehicle and seeing that it was driven by an adult male, the officer conducted a traffic stop.

When the officer approached the vehicle, he asked Hernandez-Lopez for his driver’s license, but Hernandez-Lopez responded that he did not have a driver’s license and instead provided the officer with a Mexican identification card. The officer learned that although the driver’s last name matched that of the wanted person—Hernandez-Lopez—his first name did not. The officer then returned to his patrol car with the identification card and ran Hernandez-Lopez’s full name and date of birth through the Georgia Crime Information Center (GCIC), but the system returned that no such driver was found. Thereafter, Hernandez-Lopez was arrested for driving without a license.

Hernandez-Lopez was subsequently charged by accusation for driving without a valid license and filed a motion to suppress the officer’s traffic stop. Following a hearing on the matter, the trial court denied the motion but granted a certificate of immediate review. We granted Hernandez-Lopez’s application for interlocutory appeal, which follows.

At the outset, we note that when deciding whether to grant or deny a motion to suppress, a trial court sits as the trier of fact, and “its findings are akin to a jury verdict and will not be disturbed unless no evidence exists to support them.” Accordingly, we cannot, and will not, “usurp the authority of the trial judge to consider such factors as demeanor and other credibility-related evidence in reaching its decision.” With these guiding principles in mind, we turn now to Hernandez-Lopez’s enumerations of error.

1. Hernandez-Lopez first argues that the officer lacked reasonable, articulable suspicion to perform a traffic stop based on the alert received through the LPR. We disagree.

To begin with, stopping and detaining a driver to check his license and registration is appropriate when an officer has a reasonable and articulable suspicion that “the driver or vehicle is ... subject to seizure for violation of the law.” In this respect, we have held that “articulable suspicion must be an objective manifestation that the person stopped is, or is about to be, engaged in criminal activity,” and that this “determination can only be made after considering the totality of the circumstances . . . .” And based upon this holistic approach, the detaining officer must “have a particularized and objective basis for suspecting the particular person stopped of criminal activity.”

Here, based on the alert and information he received from the LPR system, the officer had reason to believe the male driver of the relevant vehicle was wanted for failure to appear in court, which provided reasonable, articulable suspicion to conduct a traffic stop.

The information retrieved via the LPR system is not unlike that an officer retrieves by way of running vehicle-tag numbers through GCIC, which we have previously held provides justification for an initial stop. Moreover, in an unpublished opinion, the Eleventh Circuit recently addressed use of the LPR system in the context of a case invoking the right to be free from an unreasonable search, noting that the Supreme Court of the United States has “concluded in similar contexts that visual surveillance of vehicles in plain view does not constitute an unreasonable search for Fourth Amendment purposes,” and that “[t]his is true even if the surveillance is aided by the use of technology to augment the officers’ sensory faculties.” Similarly, the LPR system at issue in the case sub judice merely aided the officer by augmenting his sensory faculties, providing an enhanced ability to process tag information through a law-enforcement database rather than requiring the officer to manually conduct random checks. And the information retrieved by the system’s recognition of the license-plate numbers—i.e., identifying information of a wanted person, the offense allegedly committed by the wanted person, and a photograph of the relevant license plate and vehicle—gave the officer reasonable, articulable suspicion to justify a traffic stop of the vehicle driven by Hernandez-Lopez. Thereafter, the officer had probable cause to arrest Hernandez-Lopez for driving without a license.

2. Next, Hernandez-Lopez argues that the trial court erred in denying his motion to suppress when the LPR system failed to meet foundational requirements for admissibility, as have been established for radar detectors. We disagree.

For data collected by a radar device to be admissible into evidence, the State must establish that (1) the device is marketed under a particular name or is similar and approved by the Department of Public Safety for the measurement of speed, (2) the law-enforcement agency has a particular license, (3) the device has been certified for compliance by a special technician, and (4) the device has passed tests for accuracy. Hernandez-Lopez argues that, in order to be admissible, the LPR system at issue was required to meet similar requirements and that the State failed to establish same. But Hernandez-Lopez’s argument is misplaced because the admissibility of a radar detector is inapposite as that device is used to prove commission of the offense at issue, whereas the use of the LPR merely provides an officer with reasonable, articulable suspicion to justify an investigatory stop. Accordingly, the trial court did not err by denying the motion to suppress on this ground.

Decided February 5, 2013.

Vanessa K. Narea, for appellant.

Rosanna M. Szabo, Solicitor-General, Latawsha Y. Little-Hill, Dana W. Pagan, Assistant Solicitors-General, for appellee.

Judgment affirmed.

Ellington, C. J., and Phipps, P. J., concur.

        See Humphreys v. State, 304 Ga. App. 365, 365 (696 SE2d 400) (2010) (“In reviewing a trial court’s order on a motion to suppress, we construe the evidence most favorably to uphold the court’s findings and judgment.”).

        Id.

        Id. (punctuation omitted).

        Id. at 366; see also Delaware v. Prouse, 440 U. S. 648, 663 (VII) (99 SC 1391, 59 LE2d 660) (1979) (“[E]xcept in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment.”).

        Humphreys, 304 Ga. App. at 366 (punctuation omitted).

        Id.

         See Hastings v. State, 211 Ga. App. 873, 874 (2) (441 SE2d 83) (1994) (holding that officer had “sufficient articulable suspicion for [a] stop” when a bench warrant had been issued for appellant for failure to appear in court).

        See Humphreys, 304 Ga. App. at 367 (“[T]he particularized and objective basis for the initial stop was the information from GCIC—in this case, that the male owner of the registered vehicle [the appellant] was operating had a suspended driver’s license.”); see also Thompson v. State, 289 Ga. App. 661, 661 (658 SE2d 122) (2007) (concluding that stop was authorized when officer “randomly checked [defendant’s] vehicle’s tag and learned that the tag on the vehicle was registered to a different vehicle”); Self v. State, 245 Ga. App. 270, 274 (3) (a) (537 SE2d 723) (2000) (holding that stop was justified when officer testified that “he checked the vehicle’s license tag prior to stopping it and determined that the tag belonged to a pickup truck” because “the potential violation of OCGA § 40-2-6 supported the stop of the vehicle”).

        See United States v. Wilcox, 415 Fed. Appx. 990 (11th Cir. 2011) (per curiam).

        Id. at 992 (II); see New York v. Class, 475 U. S. 106, 114 (III) (B) (106 SC 960, 89 LE2d 81) (1986) (“[I]t is unreasonable to have an expectation of privacy in an object required by law to be located in a place ordinarily in plain view from the exterior of the automobile.”); United States v. Knotts, 460 U. S. 276, 282 61) (103 SC 1081, 75 LE2d 55) (1983) (“Nothing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case.”); see also OCGA § 40-2-41 (providing that “every vehicle required to be registered under this chapter, which is in use upon the highways,'shall at all times display the license plate issued to the owner for such vehicle, and the plate shall be fastened to the rear of the vehicle in a position so as not to swing and shall be at all times plainly visible”).

        See Wilcox, 415 Fed. Appx. at 992 (II); see also Knotts, 460 U. S. at 284 (II) (‘We have never equated police efficiency with unconstitutionality, and we decline to do so now.”).

        See People v. Davila, 901 N.Y.S.2d 787, 791 (N.Y. Sup. 2010) (holding that, despite failure to adhere to two-step protocol set forth by police department before stopping a vehicle subject to an LPR alert, officers conducted a lawful stop based on the return of an alert); see also United States v. Lurry, Case No. 09-20312-JPM-dkv, 2010 WL 4628178, at *6 (II) (A) (W.D. Tenn. June 23, 2010) (recommending denial of motion to suppress and concluding that “the license plate reader’s alert raised a reasonable, particularized suspicion that the driver of the vehicle was involved in criminal activity”), adopted in part and rejected in part on other grounds, Case No. 2:09-cr-20312-JPM, 2010 WL 4628129, at *5 (III) (b) (W.D. Tenn. Nov. 8, 2010) (overruling defendant’s objection to traffic stop and determining that officer “had an objectively reasonable suspicion to conduct an investigatory stop” when LPR system alerted officer “that the car’s owner or occupant had an outstanding warrant”). But cf. Green v. City & County of San Francisco, Case No. C 10-02649 RS, 2011 WL 4434801, at *5 (IV) (A) (N.D. Cal. Sept. 23, 2011) (suggesting that LPR alert alone does not automatically support a vehicle stop without independent officer verification of information supplied by system).

        See Horne v. State, 318 Ga. App. 484, 489 (3) (733 SE2d 487) (2012) (following lawful traffic stop for a different offense, “[w]hen the officer learned that [defendant] did not have a valid driver’s license, the officer had probable cause to arrest [defendant] for driving without a license”).

        See Hardaway v. State, 207 Ga. App. 150, 151 (427 SE2d 527) (1993); see also OCGA § 40-14-7 (superseding a fifth requirement); Carver v. State, 199 Ga. App. 842, 842 (406 SE2d 236) (1991) (recognizing that fifth requirement was superseded by statute).

        See Hardaway, 207 Ga. App. at 150-52 (reversing speeding conviction when State failed to strictly comply with third requirement for admissibility of radar detector).

        See supra Division 1.

       We do not address Hernandez-Lopez’s contention that operation of the LPR system “is overly intrusive as it creates an unreasonable detention of an individual who may not have broken any laws or committed any traffic offense whatsoever” because this argument was not made below. See Owens v. State, 308 Ga. App. 374, 380 (3) (707 SE2d 584) (2011).


text:
    A12A1792.
    In the Interest of J. R. L., a child.
    (738 SE2d 144)
   BARNES, Presiding Judge.

J. R. L., a 16-year-old male, was charged in the Juvenile Court of Fannin County with first-degree vehicular homicide and multiple other crimes arising out of a fatal motor vehicle collision. Following a hearing, the juvenile court entered an order transferring the case to the Superior Court of Fannin County on the ground that J. R. L. should be tried as an adult pursuant to OCGA § 15-11-30.2 (a). J. R. L. appeals from the transfer order, contending that the juvenile court abused its discretion by finding that he was not amenable to treatment in the juvenile system and that the interests of the child and the community required the transfer of jurisdiction to the superior court. Concluding that the juvenile court acted within its discretion in ordering the transfer of the case, we affirm.

Before transferring jurisdiction from juvenile to superior court [pursuant to OCGA § 15-11-30.2 (a)], the juvenile court must find that there are reasonable grounds to believe that the child committed the delinquent act alleged; the child is not committable to an institution for the mentally retarded or mentally ill; the interests of the child and the community require that the child be placed under legal restraint and the transfer be made; and the child was at least 15 years of age at the time of the alleged delinquent conduct.

(Citation omitted.) In the Interest of D. M., 299 Ga. App. 586 (683 SE2d 130) (2009). On appeal from a transfer order, “the function of this Court is limited to ascertaining whether there was some evidence to support the juvenile court’s determination that the requirements of OCGA § 15-11-30. have been met, and absent an abuse of discretion, we will affirm the order transferring jurisdiction.” In the Interest of D. C., 303 Ga. App. 395 (1) (693 SE2d 596) (2010).

The evidence presented at the transfer hearing showed that late at night on July 1, 2011, J. R. L. was driving his pickup truck south on Highway 515 in Fannin County. There was one passenger in the truck with him. J. R. L. was driving fast and lost control of the truck, nearly hitting a concrete barrier at the entrance to a gasoline station before the passenger took control of the wheel to prevent the collision. After nearly missing the concrete barrier, J. R. L. regained control of the steering wheel, was laughing, and began to jerk the steering wheel back and forth in an erratic manner, causing the truck to sway. J. R. L. then lost control of the truck for a second time, went off the highway, and struck a guard rail before continuing down the highway on the right shoulder of the road. As he drove down the shoulder of the road, J. R. L. ran a red light at a high rate of speed, narrowly missing a sheriff’s deputy in his cruiser. As the deputy pulled out onto Highway 515 to intercept J. R. L., he saw that there was traffic stopped at a red light at the next intersection.

A Honda minivan occupied by a husband, his pregnant wife, and their four young children was stopped at the red light. J. R. L. crashed into the rear of the minivan at 75 m.p.h. in what was a 55 m.p.h. zone. As a result of the collision, the parents’ six-year-old daughter was killed; their three-year-old son suffered a spinal cord injury and is now quadriplegic, hydrocephalic, and ventilator-dependent; their nine-year-old daughter broke her pelvis and several other bones; their ten-year-old daughter broke her right femur and right wrist; and the pregnant wife suffered a head laceration and broke multiple ribs.

When the sheriff’s deputy arrived at the scene of the collision, he saw J. R. L. on the ground next to the truck and went over to him. As J. R. L. tried to speak, he was “thick-tongued,” which the deputy knew from experience was common in individuals who were intoxicated or under the influence of some substance. A criminal investigator with the Appalachian Judicial Circuit District Attorney’s Office later took the statement of J. R. L.’s passenger, who admitted that he and J. R. L. had been “huffing” computer duster shortly before the collision occurred.

According to the passenger, he had met J. R. L. at a fireworks show earlier that evening, and J. R. L. had asked him if he had ever “huffed.” The passenger indicated that he had not. J. R. L. showed the passenger a can of “Perfect Duster” computer duster and demonstrated to the passenger how to “huff” by inhaling the chemical vapors from the can through his mouth. When the passenger expressed concern that huffing could be harmful, J. R. L. told him not to worry because he huffed all the time.

The passenger got into J. R. L.’s truck, and J. R. L. drove them to a package store where they purchased beer from someone who J. R. L. knew would sell to underage kids. After purchasing the beer, J. R. L. drove them around as they looked for a party to attend. As they drove, the passenger said he wanted to try huffing the computer duster, and J. R. L. agreed to teach him. J. R. L. parked the truck in a strip mall parking lot. Once in the parking lot, the passenger huffed from the computer duster two times while receiving instruction from J. R. L., and J. R. L. huffed three times. The passenger also drank some beer. J. R. L. then decided to continue driving to a restaurant parking lot down the road, where they would be able to drink beer and continue huffing with less risk of being seen. J. R. L. pulled out onto Highway 515 and began driving fast and erratically, and the fatal collision happened moments later.

Following the collision and the investigation revealing that J. R. L. had been huffing computer duster, the State filed a delinquency petition charging him with homicide by vehicle in the first degree for the death of the six-year-old child, multiple counts of serious injury by vehicle for the injuries sustained by the various family members, driving under the influence of an intoxicating substance to the extent that he was less safe to drive, reckless driving, failure to maintain lane, failure to perform duty on striking a fixed object, and possession of an open container of alcoholic beverage in the passenger area. The State filed a motion to transfer the case to the superior court pursuant to OCGA § 15-11-30.2 (a), and the juvenile court conducted a motion hearing.

During the hearing, in addition to the evidence discussed above, the State presented the expert testimony of a forensic toxicologist with the Georgia Bureau of Investigation Crime Lab. The toxicologist had tested a blood sample taken from J. R. L. after the collision, and she testified that it contained difluoroethane, the chemical propellant in computer duster and an aerosol. According to the toxicologist, difluoroethane acts as a central nervous system depressant and can result in effects similar to alcohol intoxication, including an initial euphoric feeling, increased risk-taking behavior, dizziness, disorientation, loss of muscle control, slurred speech, and slowed reaction times.

A supervisor in the Department of Juvenile Justice also testified at the hearing about the options for dealing with J. R. L. in the juvenile system in that judicial circuit. He testified that if the case remained in juvenile court, the maximum sanction would be a disposition order committing J. R. L. to the custody of the Department of Juvenile Justice for two years. See OCGA § 15-11-70 (a). According to the supervisor, if a commitment order was issued, the department’s screening committee would examine factors such as J. R. L.’s legal history and psychological evaluation and would decide on a placement for him in a youth detention center, a residential treatment program, a foster home, or his own home. The supervisor noted that placements in a treatment program generally last only six to nine months. He further testified that because J. R. L. had never before been committed to the custody of the department and had not committed a designated felony act under OCGA § 15-11-63, there was no chance that he would be placed in a youth detention center, given the department’s screening guidelines. The supervisor testified that J. R. L. would be seen “face-to-face” by someone in the department at most only three times a month if placed under home supervision for any part of his commitment, and that the drug test kits used by the department do not currently screen for inhalants like difluoroethane.

After hearing from the State’s witnesses and several witnesses who testified on behalf of J. R. L., the juvenile court, following the factors outlined in OCGA § 15-11-30.2 (a) (3), entered a detailed order finding that transfer was appropriate. The court found that there were reasonable grounds to believe that J. R. L. committed the delinquent acts as alleged, that he was not committable to an institution for the mentally retarded or the mentally ill, and that he was at least 15 years of age at the time of the motor vehicle collision. None of these findings are disputed by J. R. L. on appeal.

The juvenile court then balanced the interest of J. R. L. in having the case remain in juvenile court with the interest of the community in having the case prosecuted in superior court. The court first found that J. R. L. was amenable to treatment in the juvenile system, and that the State had not contested that issue. The court concluded that J. R. L.’s amenability to treatment in the juvenile system, his lack of criminal history, his good grades, and his aspiration to attend college weighed in favor of keeping the case in juvenile court.

The juvenile court, however, went on to detail four factors in the community’s interest that weighed in favor of transfer to superior court. The first factor was the seriousness of J. R. L.’s offenses and the severity of the injuries he caused, including the death of one child and the permanent paralysis of another. The second factor was the fact that J. R. L. was the instigator of the misconduct: he made the decision to huff, he taught his passenger how to huff, and he was driving to a location to drink beer and continue huffing when the fatal collision occurred. The third factor was the limited options for detention and supervision available to the juvenile court in dealing with J. R. L., as outlined by the Department of Juvenile Justice supervisor who testified at the hearing. In this regard, the court concluded that an order committing J. R. L. to the department would be insufficient “to do justice for the harm [he] caused to the community,” and would be inadequate because J. R. L. would not be placed in a secure youth detention center preventing him from committing this kind of offense again. Finally, the fourth factor considered by the juvenile court was that the community had a strong interest in having a full public trial, as would be available in superior court, when “felonious conduct causes death and debilitation on its highways.”

After discussing the four factors in the community’s interest weighing in favor of transfer to superior court, the juvenile court noted that J. R. L. had presented opinion testimony from members of the community that the community’s interest would not be served by transferring the case. But the court found that the opinion testimony carried little weight “because each person who testified was connected to [J. R. L.] or his family.”

Upon balancing the interests of J. R. L. and the community, the juvenile court found that the community’s interest in placing J. R. L. under legal restraint and transferring his case to superior court for prosecution outweighed J. R. L.’s interest in treatment as a juvenile. Accordingly, the juvenile court found that the State had met the criteria for transfer set out in OCGA § 15-11-30.2 (a) (3) and ordered that the criminal case against J. R. L. be transferred to superior court so that he could be tried as an adult. This appeal followed.

1. J. R. L. contends that the juvenile court “abused its discretion when it concluded that [he] was not amenable to treatment in the juvenile system.” The juvenile court, however, did not reach that conclusion. Rather, the juvenile court expressly found that J. R. L. was amenable to treatment, but then went on to find that the amenability factor was outweighed by the community’s interest in having J. R. L. treated as an adult. Hence, J. R. L.’s contention is based upon a misreading of the transfer order and is without merit.

2. J. R. L. further contends that the juvenile court abused its discretion in finding that the community’s interest in having him prosecuted in superior court outweighed his interest in having the case remain in juvenile court. We disagree.

“Determinations of a juvenile court made on an exercise of discretion, if based upon evidence, will not be controlled by this [C]ourt.” (Citation and punctuation omitted.) In the Interest of R. J., 191 Ga. App. 712, 715 (3) (382 SE2d 671) (1989). Moreover, even if, as in the present case, “there is evidence that the child may be amenable to treatment, the juvenile court may still transfer the case if it finds that the amenability factor is outweighed by the interest of the community in treating the child as an adult.” (Citation and punctuation omitted.) In the Interest of D. M., 299 Ga. App. at 591 (2). And the juvenile court can consider a “broad[ ] range of community interests” as part of its analysis. In the Interest of R. J., 191 Ga. App. at 715 (3).

The record supports the juvenile court’s determination that transfer was appropriate, even though J. R. L. was amenable to treatment in the juvenile court. In its transfer order, the juvenile court found that the amenability factor was outweighed by other factors weighing in favor of the community’s interest in having the case transferred, namely, the seriousness of the offenses, the fact that J. R. L. was the instigator, the limited options for detention and supervision available to the juvenile court in dealing with J. R. L., and the community’s need for a full and public trial.3 Georgia precedent makes clear that all of these factors can be considered by a juvenile court in determining the weight given to the community’s interest. See, e.g., State v. M. M., 259 Ga. 637, 640 (3) (386 SE2d 35) (1989) (“heinous nature of the offenses” weighed in favor of community’s interest in having case transferred); In the Interest of D. C., 303 Ga. App. at 398 (1) (b) (severity of the offenses and fact that juvenile was an instigator and coordinator of the crimes weighed in favor of community’s interest in having case transferred); In the Interest of S. K. K., 280 Ga. App. 877, 879 (2) (635 SE2d 263) (2006) (fact that “there would be insufficient time for the juvenile system to provide adequate treatment in a secure facility” weighed in favor of community’s interest in having case transferred); In the Interest of W. N. J., 268 Ga. App. 637, 641 (2) (602 SE2d 173) (2004) (severity of the offense and fact that juvenile was the instigator of the offense were factors weighing in favor of community’s interest in having case transferred); In the Interest of R. J., 191 Ga. App. at 715 (3) (“public’s right to know the events and the outcome” of the case weighed in favor of community’s interest in having case transferred).

Decided February 5, 2013

Michael J. Puglise, for appellant.

Furthermore, while J. R. L. contends that the juvenile court did not adequately take into account the lay and expert witnesses who testified on his behalf against transferring the case to superior court, the juvenile court clearly did not abuse its discretion in this regard. Questions regarding the credibility of the witnesses, the weight of the evidence, and the resolution of conflicts in the testimony were for the juvenile court to decide, not this Court. See generally In the Interest of K. A. F., 310 Ga. App. 142, 143 (712 SE2d 138) (2011) (“Because it is the juvenile court’s role to resolve conflicts in the evidence, we do not weigh the evidencef.]”); In the Interest of A. D., 295 Ga. App. 436, 437 (671 SE2d 909) (2009) (noting that “it is the role of the trial court, not this Court, to assess the credibility of witnesses”).

For these combined reasons, we conclude that the juvenile court did not abuse its discretion in determining that the community’s interest in having J. R. L. prosecuted as an adult in superior court outweighed his interest in having the case stay in juvenile court. The juvenile court’s order transferring the case pursuant to OCGA § 15-11-30.2 (a), therefore, is affirmed.

Judgment affirmed.

McFadden and McMillian, JJ., concur.

Joe Hendricks, District Attorney, CoryP. DeBord, Jenny L. Carver, Assistant District Attorneys, for appellee.

       “An order transferring a case from juvenile to superior court is a final order that is directly appealable.” In the Interest of R. W., 299 Ga. App. 505, n. 1 (683 SE2d 80) (2009).

       A commitment order may be extended by the juvenile court for an additional two-year term under certain circumstances. See OCGA § 15-11-70 (a).

       The State did not seek to transfer the case on the theory that J. R. L. was nonamenable to treatment in the juvenile system.

       J. R. L. contends that the juvenile court relied “almost exclusively” on the severity of the offenses in weighing the community’s interest. His contention lacks merit. The transfer order, on its face, demonstrates that the juvenile court considered four separate factors in weighing the community’s interest, as discussed above.

       J. R. L. also argues that the juvenile court “impermissibly took judicial notice of the feelings of the community when it opined [in the transfer order] that ‘[a] n incident of this nature is, in the Court’s view, more personal in a rural community like Fannin County than in more metropolitan areas.’ ” His argument is without merit. In the very next sentence of the transfer order, the juvenile court made clear that it was not relying upon its own personal views about the feelings of the community by stating: “Admittedly, the Court cannot be certain of that view given the enormity of this incident; however, the Court is certain that the residents of this community deserve to know when felonious conduct causes death and debilitation on its highways.”