author: BARNES, Presiding Judge. RAY, Judge,

text:
    A13A0880.
    ROGERS v. THE STATE.
    (747 SE2d 213)
   BARNES, Presiding Judge.

After a bench trial, the trial court found Anthony Markette Rogers guilty of trafficking in methamphetamine. Rogers appeals, contending that the trial court erred in denying his motion to suppress the methamphetamine because his consent to search was the product of an unreasonably prolonged detention. For the reasons discussed below, we affirm.

“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.” Humphreys v. State, 304 Ga. App. 365 (696 SE2d 400) (2010). Construed in that manner, the evidence shows that on the night of March 27,2007, an officer with the City of Douglasville Police Department was on patrol duty on Interstate 20. The officer was assigned to the F. I. N. D. (Felony Interception and Narcotics Detection) unit and had conducted “thousands” of traffic stops over the course of his career, including many stops where the occupants were transporting illegal drugs. While parked in a stationary position perpendicular to the highway, the officer saw a vehicle pass his patrol car that failed to maintain its lane. The officer began following the vehicle, observed that it was weaving within its own lane of travel, and initiated a traffic stop.

When the officer approached the passenger side of the stopped vehicle, he noted that there were three occupants — a driver, a front seat passenger, and a rear seat passenger. The officer observed that the driver, later identified as Rogers, appeared nervous and was “moving around quite a bit inside [the] vehicle”; that the front seat passenger also appeared nervous, was sitting “like a statue” in his seat, and was attempting to avoid eye contact; and that the rear seat passenger appeared to be pretending to be asleep. The officer also observed that there were multiple air fresheners “strategically” placed throughout the vehicle, which the officer testified was often an indicator of illegal drug activity. Additionally, the officer testified that he smelled the faint odor of burning or burnt marijuana coming from inside the vehicle, an odor that he was familiar with based on his ten years of experience as a police officer.

The officer asked Rogers for his license and registration, had him step out of the vehicle, and patted him down for weapons. As the officer explained the reason for the traffic stop and inquired about his travel itinerary, Rogers appeared “excessively” nervous and was shaking and sweating despite the temperature being only about 55 degrees.

At that point, the officer walked back over to the vehicle, where the two passengers remained seated inside. The officer asked the two passengers to produce their driver’s licenses and inquired about their travel itinerary. Neither passenger had any form of identification.

After briefly speaking with the passengers, the officer walked back over to where Rogers was standing. While completing a written warning citation for the traffic violation, the officer asked Rogers for consent to search the vehicle, which he provided.

After receiving Rogers’s consent to search the vehicle, the officer had the other two passengers get out of the vehicle and patted them down for weapons. The officer then searched the vehicle and discovered 194.74 grams of methamphetamine hidden in a container under the front passenger seat. No marijuana was found.

Rogers and the two passengers were arrested and charged with trafficking in methamphetamine. Rogers moved to suppress the methamphetamine found in his vehicle, and at the hearing on the motion, the officer testified to the events as set out above. The State also introduced into evidence a recording of the traffic stop made from the video camera mounted inside the officer’s patrol car. The trial court denied the motion to suppress, and after a bench trial in which most of the evidence was stipulated to by Rogers, the court found him guilty of the charged offense. The trial court later denied Rogers’s motion for new trial, resulting in this appeal.

In his sole enumeration of error, Rogers maintains that the trial court erred in denying his motion to suppress. Rogers does not contest that the officer had articulable suspicion for stopping his vehicle based on his failure to maintain his lane and weaving within his own lane of travel. See Steinberg v. State, 286 Ga. App. 417, 418-419 (1) (650 SE2d 268) (2007) (failure to maintain lane provides officer with articulable suspicion to justify traffic stop); Veal v. State, 273 Ga. App. 47, 50 (614 SE2d 143) (2005) (“The police can stop drivers who engage in erratic driving behavior, even if it is simply weaving within a lane.”) (footnote omitted). Rather, he maintains that the officer unreasonably prolonged the traffic stop before requesting and receiving permission to search the vehicle, rendering his consent to search invalid as the product of an illegal detention. We are unpersuaded.

“The officer’s purpose in an ordinary traffic stop is to enforce the laws of the roadway, and ordinarily to investigate the manner of driving with the intent to issue a citation or warning.” (Citation and punctuation omitted.) Richbow v. State, 293 Ga. App. 556, 558 (667 SE2d 418) (2008).

[T]o pass constitutional muster, the duration of a traffic stop cannot be unreasonably prolonged beyond the time required to fulfill the purpose of the stop. A reasonable time to conduct a traffic stop includes the time necessary to verify the driver’s license, insurance, and registration, to complete any paperwork connected with the citation or a written warning, and to run a computer check for any outstanding arrest warrants for the driver or the passengers.

(Citations and punctuation omitted.) Hall v. State, 306 Ga. App. 484, 486 (2) (702 SE2d 483) (2010). While conducting these tasks, an officer is authorized to question the driver and passengers and even to “ask .. . questions wholly unrelated to the traffic stop ..., so long as the questioning does not prolong the stop beyond the time reasonably required to complete the purpose of the traffic stop.” (Citations and punctuation omitted.) Sommese v. State, 299 Ga. App. 664, 669 (1) (b) (683 SE2d 642) (2009). See Young v. State, 310 Ga. App. 270, 272-273 (712 SE2d 652) (2011). Furthermore, as “an extension of the constitutionally valid detention resulting from the traffic stop,” an officer can order the driver and passengers out of the vehicle. (Citation and punctuation omitted.) Sommese, 299 Ga. App. at 669 (1) (a). See Maryland v. Wilson, 519 U. S. 408, 414-415 (117 SCt 882, 137 LE2d 41) (1997); State v. Williams, 264 Ga. App. 199, 203 (590 SE2d 151) (2003).

If an officer prolongs the traffic stop beyond the time reasonably required to fulfill the initial purpose of the stop, then the continued detention of the vehicle and its occupants amounts to a second detention. Richbow, 293 Ga. App. at 558. For the officer’s continued detention of the vehicle and its occupants to be constitutionally valid, the officer must have a reasonable articulable suspicion of other illegal activity. Id. See Young, 310 Ga. App. at 272.

Here, the trial court was authorized to find from the facts as set out above that the officer did not unreasonably prolong the duration of the traffic stop before asking Rogers for consent to search his vehicle. There was evidence that only six or seven minutes elapsed from the time that the officer pulled over Rogers’s vehicle to when the officer asked Rogers for his consent to search. During that short period of time, the officer had Rogers exit the vehicle and patted him down out of concern for the officer’s safety, asked Rogers and the passengers for identification and inquired about their travel, and asked Rogers for consent to search the vehicle while issuing a written warning citation to him, all of which were permissible actions by the officer in conducting the traffic stop. Furthermore, there is no evidence that the officer lengthened the detention simply to coerce Rogers into giving his consent. Under these circumstances, we defer to the trial court’s finding that Rogers’s detention by the officer was not unreasonably prolonged beyond the time necessary to fulfill the purpose of the traffic stop and that his consent to the search thus was valid. See Hall, 306 Ga. App. at 486 (2) (“The Fourth Amendment is not violated when, during the course of a valid traffic stop, an officer . . . requests consent to conduct a search.”) (citation and punctuation omitted).

Moreover, even if the officer had prolonged the initial traffic stop beyond the time necessary to fulfill the original purpose of the stop, there was evidence that the officer had a reasonable articulable suspicion of other illegal activity. Specifically, the officer testified that he smelled burning or burnt marijuana coming from inside the vehicle, that Rogers appeared “excessively” nervous, and that the vehicle had multiple “strategically” placed air fresheners, which, taken together, gave the officer a reasonable articulable suspicion of other illegal activity to justify prolonging the duration of the stop. See Warren v. State, 314 Ga.App. 477, 482-483 (3) (724 SE2d 404) (2012) (officer had articulable suspicion to prolong traffic stop based on smell of marijuana and defendant’s appearance and demeanor); Richbow, 293 Ga.App. at 558-559 (“extreme nervousness” and“excesair freshener,” when combined with other material factors, may provide officer with articulable suspicion for continued detention); Bailey v. State, 283 Ga. App. 365, 368 (2) (641 SE2d 548) (2006) (officer had articulable suspicion to prolong traffic stop upon smelling marijuana smoke); Cole v. State, 254 Ga.App. 424 (1) (562 SE2d 720) (2002) (officer had articulable suspicion to prolong traffic stop based on smell of marijuana and defendant’s appearance and demeanor). Thus, Rogers’s consent to search was not the product of an unreasonably prolonged detention.

It is true that marijuana was never found in the vehicle and that the officer never asked Rogers or the two passengers about marijuana, factors that Rogers argues call into question the officer’s testimony that he smelled burning or burnt marijuana. But in deciding a motion to suppress, “[t]he trial court sits as the trier of fact,” and “[w]e cannot [ ] ... usurp the authority of the trial judge to consider such factors as demeanor and other credibility-related evidence in reaching its decision.” (Citations and punctuation omitted.) Humphreys, 304 Ga. App. at 365. “Stated another way, in the absence of evidence of record demanding a finding contrary to the judge’s determination, the appellate court will not reverse the ruling [denying] a motion to suppress.” (Citation omitted.) Richbow, 293 Ga. App. at 556-557. Because the evidence does not demand a finding contrary to the trial court’s determination that the officer had reasonable articulable suspicion justifying the detention in this case, we affirm the court’s denial of Rogers’s motion to suppress.

Judgment affirmed.

Miller, J., concurs. Ray, J., concurs fully and specially.

RAY, Judge,

concurring fully and specially.

Although I concur fully in the opinion by the majority, I write separately to emphasize my view that the police officer for the City of Douglasville had the right to ask for consent to search the automobile irrespective of the believability of his testimony as to whether he smelled the scent of burnt marijuana. Not only were there significant factors which in totality gave articulable suspicion that there might be criminal behavior, i.e., a driver who appeared nervous and moving about the vehicle, shaking and sweating in 55 degree weather, a passenger sitting “like a statue” and avoiding eye contact, another passenger pretending to be asleep, and multiple air fresheners “strategically” placed throughout the vehicle, perhaps more important is the fact that the officer asked for consent to search the vehicle before completing the writing of the traffic violation warning and that the stop was not that long to begin with, a mere six or seven minutes leading up to the request to search. Clearly, this request was reasonable and constitutionally sound, whether or not he had smelled burnt marijuana coming from the car.

Decided July 31, 2013.

J. Scott Key, for appellant.

David McDade, District Attorney, James A. Dooley, Assistant District Attorney, for appellee.

       Two backup officers arrived on the scene almost immediately after the vehicle was stopped.

       Approximately 11 air fresheners were discovered in the vehicle during the subsequent search.

       According to the officer, multiple air fresheners are sometimes used in an effort to hide the odor of drugs or to confuse a drug sniffing dog.


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A13A0925.
    BACCHUS v. THE STATE.
    (747 SE2d 217)
   Dillard, Judge.

Following a trial by jury, Johnathan Bacchus was convicted on multiple counts of rape, child molestation, incest, and cruelty to children in the first degree for acts perpetrated against his daughters. Bacchus appeals his convictions, arguing that his trial counsel rendered ineffective assistance by failing to make certain objections at trial. But for the reasons set forth infra, Bacchus has waived his ineffective-assistance arguments and, accordingly, we affirm his convictions.

The record reflects that Bacchus was represented at trial by Anton Rowe, the same attorney who represents Bacchus on appeal. Following conviction, Rowe initially filed a motion for new trial on Bacchus’s behalf but reserved the right to obtain new counsel and amend the motion. Thereafter, an entry of appearance and amended motion for new trial were filed by attorney Michael Sheridan. The amended motion for new trial added an argument that Bacchus’s trial counsel (Rowe) rendered ineffective assistance.

The trial court heard argument on the motion for new trial, at which point Sheridan appeared on behalf of Bacchus and did not call Rowe to testify. The court ultimately denied Bacchus’s motion. And after doing so, the court inquired as to whether Sheridan would represent Bacchus on appeal. Sheridan advised the court that he would not represent Bacchus on appeal and that he had informed Bacchus that he would need to retain new counsel within 30 days. The trial court then indicated that the Office of the Public Defender would provide appellate representation for Bacchus.

Thereafter, Sheridan filed a motion to withdraw as counsel, which the trial court granted, and new counsel was appointed to represent Bacchus on appeal. That same day, Bacchus’s newly appointed appellate counsel filed a notice of appeal with the trial court. However, just six days later, a second notice of appeal was filed on Bacchus’s behalf by Anton Rowe. And it is Rowe, not the newly appointed public defender, who currently appears as attorney of record in this Court and represents Bacchus in this appeal.

As noted supra, Bacchus’s sole argument on appeal is that his trial counsel rendered ineffective assistance. But because Bacchus chose to pursue this appeal using the same attorney who defended him at trial (despite having hired new counsel to represent him at the motion-for-new-trial hearing and despite havingbeen initially appointed a public defender to represent him on appeal), he has waived appellate review of this issue. Indeed, this situation is wholly distinguishable from one in which an appellant has been represented by the same attorney from trial through direct appeal and makes a claim for ineffective assistance of counsel for the first time on appeal. Nevertheless, just as in those cases, Bacchus’s appellate counsel should be “precluded from presenting a claim of ineffective assistance of counsel concerning a trial in which he participated due to the ethical prohibition of a lawyer acting as a witness.”

Decided July 31, 2013.

Rowe & Rowe, Anton L. Rowe, for appellant.

T. Joseph Campbell, District Attorney, Stewart D. Bratcher, Rosemary M. Greene, Assistant District Attorneys, for appellee.

Accordingly, because Bacchus’s sole enumeration of error has been waived, we affirm his convictions.

Judgment affirmed.

Andrews, P. J., and McMillian, J., concur.

       The validity of the second notice of appeal is neither raised nor addressed by the parties in their appellate briefs, and, in any event, both notices of appeal were filed in a timely manner.

       We note that the record does not include any request by Rowe to withdraw as counsel after Bacchus’s conviction, nor does it contain a withdrawal by the public defender (who was appointed after the denial of the motion for new trial).

       See Capps v. State, 273 Ga. App. 696, 698 (2) (615 SE2d 821) (2005) (“Under these circumstances, having been apprised of the need for new counsel to pursue the ineffectiveness issue, [the appellant] waived appellate review by electing to retain his trial defense counsel as his counsel on appeal.”); see also Hightower v. State, 287 Ga. 586, 593 (8) (698 SE2d 312) (2010) (“To the extent that [the appellant] contends that the failure to object on confrontation grounds constituted ineffective assistance of trial counsel, [the appellant] is represented on appeal by the same counsel who represented him at trial, and he cannot now raise a claim of ineffective assistance of trial counsel.”). Compare McGuire v. State, 185 Ga. App. 233, 237-38 (3) (363 SE2d 850) (1987) (holding that appellant had not waived claim of ineffective assistance of counsel when trial court appointed trial attorney to represent appellant on appeal and instructed the attorney not to raise claims of ineffective assistance against himself).

        See Berry v. State, 262 Ga. 614, 615 (3) (422 SE2d 861) (1992) (holding that issue of ineffective assistance of counsel, though not waived, was not properly before the court when “trial counsel filed a motion for new trial and later filed the instant appeal wherein he raises the issue of ineffectiveness for the first time”); Harrison v. State, 201 Ga. App. 577, 581 (2) (411 SE2d 738) (1991) (holding that issue of ineffective assistance of counsel, though not waived, was not properly before the court when there was no hearing on the issue below and the appellant was still represented by trial counsel); see also Dobbs v. State, 199 Ga. App. 793, 795 (5) (406 SE2d 252) (1991). Cf. Perkinson v. State, 279 Ga. 232, 238 (10) (610 SE2d 533) (2005).

        Harrison, 201 Ga. App. at 581 (2); see Castell v. Kemp, 254 Ga. 556, 556-58 (331 SE2d 528) (1985) (holding that defendant’s trial counsel was disqualified from representing defendant in habeas-corpus proceeding in which defendant asserted that trial counsel rendered ineffective assistance). Cf. Watkins v. State, 206 Ga. App. 575, 575 (1) (426 SE2d 26) (1992) (“[Trial counsel’s] post-judgment action in obtaining the trial court’s permission to withdraw as appellant’s counsel so that other counsel could be appointed to raise the issue of ineffective assistance of counsel did not indicate that [trial counsel] himself acknowledged he rendered ineffective assistance at trial but instead showed that [trial counsel] acted in accordance with his ethical responsibilities to his client and to the judicial process.”). Compare Jefferson v. State, 209 Ga. App. 859, 861 (1) (434 SE2d 814) (1993) (holding that “effectiveness claim created no conflict of interest between defendant and his trial counsel relevant to the issues addressed at the sentencing hearing” and, thus, there was no violation of ethical concerns when counsel represented defendant at same); McGuire, 185 Ga. App. at 237-38 (3) (“The trial court’s direction to defense counsel against raising claims of ineffective counsel against himself is consistent with the ruling in Castell v. Kemp..., which holds that defense counsel is precluded from presenting a claim of ineffective assistance of counsel concerning a trial in which he participated due to the ethical prohibition against a lawyer acting as a witness.”).


author: Phipps, Chief Judge.

text:
    A13A0166.
    AMERICAN NATIONAL HOLDING CORPORATION v. EMM CREDIT, LLC.
    (748 SE2d 683)
   Phipps, Chief Judge.

In this interlocutory appeal, American National Holding, Inc. challenges various pretrial rulings: (i) the denial of its motion for summary judgment on a fraudulent transfer claim asserted against it; (ii) rulings resulting in a party substitution; and (iii) the denial of its motion to preclude admission of certain evidence at trial. For reasons discussed below, the summary judgment ruling is affirmed, the substitution rulings are affirmed, the evidentiary ruling is vacated, and the case is remanded for proceedings not inconsistent with this opinion.

This litigation was commenced on November 14, 2003 by a California company, NCOM, Inc. f/k/a Newcom, Inc. In its complaint, as amended, NCOM alleged that one of its former directors, Alexander Remington, had entered into a plea agreement in September 2002, wherein he pled guilty in a federal court in California to embezzling a specified sum of money from NCOM from 1996 through early 1999; that in 2006, it (NCOM) had obtained in that court a monetary judgment (hereinafter the “California Judgment”) for that amount against Remington, jointly and severally with his domestic partner and a Georgia company (Micro Equipment Corporation) of which Remington owned 95 percent of the stock.

NCOM sought in this litigation to recoup monies owed it under the California Judgment. NCOM named as defendants Remington and several associated persons and entities, including American National Holding Corporation. NCOM alleged that Remington had used the embezzled funds to purchase real and personal properties, which he then fraudulently transferred to the named persons and entities in order to avoid collection upon the California Judgment. During the course of the litigation, as we discuss below, EMM Credit, LLC was substituted for NCOM. Then, on the eve of trial, American National was granted this interlocutory appeal, in which it challenges various rulings.

1. American National contends that the trial court erred in denying its motion for summary judgment on a fraudulent transfer claim asserted against it, maintaining that the claim is time-barred.

Specifically, EMM Credit sought to set aside a deed wherein Remington transferred to American National certain real property located in Gwinnett County, Georgia. Evidence showed that Remington purchased the property on April 18, 1996, and that same day, transferred it to American National. That company had been formed several years earlier with only Remington’s domestic partner and Remington’s two brothers as its stockholders.

In its motion for summary judgment, American National argued that the filing of the fraudulent transfer claim on November 14, 2003 was precluded by the seven-year statute of limitation applicable to OCGA § 18-2-22. The trial court denied the motion, stating that genuine issues of material fact remained for a jury. On appeal, American National seeks reversal of that ruling, advancing two arguments.

(a) American National argues that the fraudulent transfer claim is precluded by the four-year statute of limitation applicable to the Uniform Fraudulent Transfers Act (UFTA), codified at OCGA § 18-2-70 et seq. But American National did not argue that ground when pursuing its motion for summary judgment. “Fairness to the trial court and to the parties demands that legal issues be asserted in the trial court.” It follows then that this argument does not provide a basis for reversal.

(b) Second, American National argues:

[T]he seven-year statute of limitations period under [OCGA § 18-2-22, which provision American National relied upon,] had also expired when Appellee’s [sic] filed their claim, as the alleged fraudulent transfer took place on April 19,1996. Therefore, any claim for fraudulent transfer would have had to be filed on or before April 19, 2003, nearly seven months before the Complaint was filed in this case.

Before the 2002 enactment of the UFTA, fraud in the procurement of title to land was claimed under OCGA § 18-2-22, and the applicable statute of limitation was seven years, which did “not commence until the fraud [was] or should have been discovered.” To overcome American National’s challenge brought on motion for summary judgment, EMM Credit took the position that the limitation period did not begin to run until 2002, when Remington pled guilty to fraudulent activity. And according to an NCOM president, after Remington entered the guilty plea, NCOM procured the California Judgment against Remington (and others) for having committed intentional fraud no later than January 1999. Pretermitting whether OCGA § 18-2-22 governed the fraudulent transfer claim at issue, the record before the trial court did not mandate a finding as a matter of law that NCOM discovered or should have discovered the alleged fraudulent transfer within seven years of the 1996 conveyance.

Therefore, American National has demonstrated no merit in its contention that the trial court erred by denying its motion for summary judgment on the fraudulent transfer claim.

2. American National contends that the trial court erred “when it removed NCOM as a party.”

About four years into the litigation, on September 27, 2007, NCOM filed a motion to substitute EMM Credit as the party plaintiff. It stated that NCOM had obtained the California Judgment (against Remington, his domestic partner, and Micro Equipment Corporation); that EMM Credit held first priority security interest in and to all of its (NCOM’s) assets; and that in partial satisfaction of that interest, NCOM had assigned in March 2007 its California Judgment to EMM Credit. Hence, NCOM summarized:

Because the nucleus of this case is the California Judgment, and because the California Judgment has been assigned ... to EMM Credit Corporation, Plaintiff respectfully requests this Honorable Court [to] exercise its discretion and order that EMM Credit Corporation be substituted as the party Plaintiff for NCOM, Inc., f/k/a NEWCOM, Inc., in this matter.

At a hearing in January 2008, counsel for American National recounted to the court that “on September 27, Plaintiffs filed a motion to substitute the parties for EMM Credit, who is the assignee of the judgment at issue in this case. There’s been no order on that —.” The court remarked, “I wanted to hear what everybody had to say about that today.” Counsel for American National responded, “We have no objection to EMM substituting in as NCOM. We didn’t file a written objection and we don’t have one now.” Consequently, on July 23,2009, the trial court entered an order expressly finding, inter alia, that no objection to the motion had been filed and thus ruling that the motion is “GRANTED. EMM CREDIT, LLC is hereby substituted for NCOM INC. f/k/a NEWCOM, INC.”

On October 4, 2010, American National filed an emergency motion complaining that the substitution had rendered moot counterclaims that it had filed against NCOM on August 5, 2009. As American National explained, NCOM should have procedurally remained a party to the instant case in order to adjudicate those counterclaims. In that motion, American National asked the court, inter alia, to reconsider its substitution order or to allow joinder of NCOM as the “defendant in Counterclaim or a Plaintiff or Involuntary Plaintiff.” The trial court denied the motion.

On appeal, American National charges the trial court with “sua sponte removing NCOM from the case completely.” OCGA § 9-11-25 (c) provides, in pertinent part: “In case of any transfer of interest, the action may be continued by or against the original party unless the court, upon motion, directs the person to whom the interest is transferred to be substituted in the action or joined with the original party.” Here, when the trial court explicitly afforded the parties opportunity to be heard on the motion, American National advised the court that it had “no objection to EMM substituting in as NCOM.” “It is well established that one cannot complain of a judgment, order, or ruling that [one’s] own procedure or conduct procured or aided in causing.” Given the foregoing, we find no abuse of discretion in the trial court’s rulings.

3. American National contends that the trial court erred in denying its motion in limine that sought to exclude from trial a redacted version of Remington’s plea agreement. American National asserts that the document is fraught with hearsay; American National asserts further that Remington was not expected to appear at the trial at the time it was scheduled, and that admission of such document would have deprived it of constitutional rights.

“Atrial court’s ruling on a motion in limine is reviewed for abuse of discretion.” Here, any trial in this case will employ Georgia’s new Evidence Code. At the time of the ruling contested here, however, that Code was not yet applicable and thus the trial court’s decision was not based thereon. Hence, whether the trial court correctly determined that the evidence was admissible under the former Evidence Code is moot. Under these circumstances, we vacate the evidentiary ruling at issue and remand the case for the trial court to exercise its discretion to consider in the first instance whether the evidence is admissible, given the newly enacted Evidence Code and any other relevant circumstances.

Decided July 31, 2013

Reconsideration denied August 8, 2013.

Jacobs & King, Scott R. King, Steven M. Lefkoff, for appellant.

Thompson, OBrien, Kemp & Nasuti, Bret T. Thrasher, Kevin S. Kovalchik, for appellee.

Judgment affirmed in part and vacated in part, and case remanded with direction.

Ellington, P. J., and Branch, J., concur.

       See Division 2, infra.

       See OCGA § 5-6-34 (d) (pertinently providing that, on interlocutory appeal, “all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall he reviewed and determined by the appellate court, without regard to the appealability of the judgment, ruling, or order standing alone”). Cf. Zekser v. Zekser, 293 Ga. 366, 369 (2) (744 SE2d 698) (2013) (holding that, indiscretionary appeals, review is ‘limited to the errors actually enumerated in the application”).

       In this regard, American National relies upon Huggins v. Powell, 315 Ga. App. 599, 601-604 (1) (726 SE2d 730) (2012), which was decided two years after the trial court’s ruling at issue.

       See Cleaveland v. Gannon, 284 Ga. 376, 381 (2) (667 SE2d 366) (2008) (explaining that “the defense of statute of limitation[ ] is an affirmative defense” and thus, where a defendant moves for summary judgment on that ground, the defendant has the burden to show that the applicable statute of limitation bars suit); Porex Corp. v. Haldopoulos, 284 Ga. App. 510, 511 (644 SE2d 349) (2007) (“[A] defendant moving for summary judgment based on an affirmative defense may not rely upon an absence of evidence in the record disproving the affirmative defense.”) (citation and punctuation omitted); accord Hansford v. Robinson, 255 Ga. 530 (1) (340 SE2d 614) (1986) (finding that where the affirmative defense of the statute of limitation was not properly raised, the trial court erred in ruling on the period of limitation in granting summary judgment).

        Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 828-829 (2) (573 SE2d 389) (2002) (citation omitted); accord Hansford, supra (explaining that on motion for summary judgment, nonmovant must be given fair notice of what must be met to overcome motion); Hodge v. SADA Enterprises, 217 Ga. App. 688, 690 (1) (458 SE2d 876) (1995) (explaining that plaintiff had no burden to respond to issue “not raised in the [defendant’s] motion for summary judgment or to present its entire case on all allegations in the complaint” and that “issues that must be rebutted on motion for summary judgment are those raised by the motion”).

       See Pfeiffer, supra at 829(2), n. 12 (citing Blue Cross & Blue Shield v. Weitz, 913 F2d 1544, 1550 (11th Cir. 1990) (summary judgment will not be reversed on appeal for failing to consider argument not articulated by party); Ex parte Ryals, 773 S2d 1011, 1013 (Ala. 2000) (“trial court cannot be reversed on any ground or argument not presented for or against the motion [for summary judgment]”); Minnehoma Financial Co. v. Pauli, 565 P2d 835, 838 (Wyo. 1977) (fundamental rule applicable to appeals from summary judgments is “that parties may not advance new theories or issues in order to secure a reversal of the lower court’s determination”)); Kent v. A. O. White, Jr., Consulting Engineer, Inc., 279 Ga. App. 563, 565 (3) (631 SE2d 782) (2006) (holding that, where issue of statute of limitation was not raised and ruled on in trial court, issue was waived for purposes of appeal); see also Francis v. Francis, 279 Ga. 248, 249 (611 SE2d 45) (2005) (“[T]he scope of review is limited to the scope of the ruling in the trial court as shown by the trial record and cannot be enlarged or transformed through a process of switching or shifting.”) (citation and punctuation omitted).

       See Ga. L. 2002, p. 141, §§ 2, 3. “OCGA § 18-2-22 was repealed on July 1, 2002, when Georgia enacted the Uniform Fraudulent Transfers Act, OCGA § 18-2-70 et seq.” Gerschick v. Pounds, 281 Ga. App. 531, 532 (1) (a), n. 8 (636 SE2d 663) (2006); Miller v. Lomax, 266 Ga. App. 93, 96 (2) (b), n. 1 (596 SE2d 232) (2004) (noting that “OCGA § 18-2-22, entitled, ‘Conveyances by debtors deemed fraudulent,’ was repealed effective July 1, 2002.”).

        Lanier v. Anthony, 261 Ga. App. 848, 852 (1) (583 SE2d 893) (2003).

        Jones v. Spindel, 239 Ga. 68, 69 (1) (235 SE2d 486) (1977) (citations omitted).

       See generally Mayfield v. Heiman, 317 Ga. App. 322, 328 (2) (730 SE2d 685) (2012) (defendant has burden of proof as to the running of the statute of limitation and not to establish the absence of facts showing a tolling; plaintiff then must show that a factual issue exists that the statute has not run, but has been tolled).

       See Miller, supra at 101-102 (4) (“The jury may infer the existence of facts reasonably and logically consequent on those proved.”) (citation and punctuation omitted); Fed. Ins. Co. v. Westside Supply Co., 264 Ga. App. 240, 245 (2) (590 SE2d 224) (2003) (“Where there are facts involving fraud and excuses for delay in discovering the same, the question is one of mixed law and fact, and is one for determination by the jury under proper instructions from the court.”) (citation and punctuation omitted).

       The trial court’s ruling was made prior to the effective date of Georgia’s new Evidence Code. See, however, footnote 17, infra.

       (Emphasis supplied.)

        Dept. of Human Resources v. Phillips, 268 Ga. 316, 320 (2) (486 SE2d 851) (1997) (footnote omitted); see Norman v. Ault, 287 Ga. 324, 329 (3) (695 SE2d 633) (2010) (“A litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal.”) (citation and punctuation omitted).

       See Hovendick v. Presidential Financial Corp., 230 Ga. App. 502, 506 (6) (497 SE2d 269) (1998) (explaining that “when a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up a counterclaim by amendment,” hut whether to allow such a filing falls within the discretion of the trial court). See generally Sheffield v. Preacher, 175 Ga. 719 (165 SE 742) (1932).

        McKissick v. Aydelott, 307 Ga. App. 688, 692 (2) (705 SE2d 897) (2011) (punctuation and footnote omitted).

       Georgia’s new Evidence Code “shall become effective on January 1,2013, and shall apply to any motion made or hearing or trial commenced on or after such date.” Ga. L. 2011, p. 99, § 101.

       OCGA § 5-6-34 (d) (providing, in pertinent part: “Nothing in this subsection shall require the appellate court to pass upon questions which are rendered moot.”).

       See Rivers v. K-Mart Corp., 321 Ga. App. 788 (743 SE2d 464) (2013) (remanding case on interlocutory appeal so that the trial court could exercise its discretion in deciding whether, under the new Evidence Code, evidence of a party’s prior criminal record was admissible).


author: Boggs, Judge.

text:
    A13A1422.
    WHITE v. THE STATE.
    (744 SE2d 857)
   Boggs, Judge.

A Dougherty County jury convicted Brian Jeremy White of attempted burglary. White appeals, arguing that insufficient evidence supports his conviction and that a fatal variance exists between the indictment and the evidence presented by the State. For the following reasons, we affirm.

When we review the sufficiency of the evidence,

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

(Citations omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 318-319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). So viewed, the record shows that on the morning of September 13, 2010, a homeowner left his adult daughter alone at his home. No visitors were expected that morning. Sitting in her father’s living room, the daughter heard multiple hard knocks on the carport door to the house.

When the daughter looked through the door’s peep hole, she observed a young man on the other side. While she looked for a key to open the door, the man rang the doorbell over and over again, kept “banging” on the door, and shook it, “trying to open the door.” Irritated, the daughter opened the door and asked the young man what he wanted. When confronted by the daughter, the young man told her “um, um, um, I have the wrong house.” The daughter slammed the door shut, returned with pen and paper to write down the tag number and description of the vehicle, and observed the man from the door standing beside a maroon truck backed up into the carport with the tailgate down. Two other men were in the cab of the truck. She told the men to leave and called the police.

While driving to the residence, Detective Darryl Jones of the Albany Police Department spotted a maroon truck headed in the opposite direction. The officer pulled around to follow the truck and noticed the truck’s tag number matched the number provided by the daughter. Officers detained the three men in the truck and transported them to the residence where the daughter identified Kavaseay Hines as the young man who knocked on her father’s door, rang the doorbell, and rattled the door handle. She identified White as the driver of the maroon truck. During his investigation, Detective Jones observed damage to the door entering the house from the carport.

1. A person is guilty of criminal burglary in Georgia when, “without authority and with the intent to commit a felony or theft therein, he or she enters or remains within an occupied, unoccupied, or vacant dwelling house of another____” OCGA § 16-7-1 (b). Aperson is guilty of criminal attempt in Georgia when, “with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” OCGA § 16-4-1. Furthermore, in Georgia “[e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” OCGA § 16-2-20 (a).

White contends that the State presented no evidence that he acted with the requisite intent for culpability. We disagree. Although White told the police a different story to explain his presence at the residence, namely that he was there to inquire about unsolicited yard work, “it was the jury’s province to assess witness credibility, resolve the conflicts in the evidence, and determine whether there was a reasonable hypothesis of innocence favorable to [White]. [Cits.]” Anthony v. State, 317 Ga. App. 807, 810 (1) (732 SE2d 845) (2012). Additionally, “[a] s a general rule the [S]tate must, of necessity, rely on circumstantial evidence in proving intent. [Cit.]” Murray v. State, 187 Ga. App. 747, 747 (371 SE2d 272) (1988). Here, the jury evaluated the nature of the circumstances of the morning’s events, as well as the daughter’s eyewitness testimony. While aware of White’s explanation and interpretation of the evidence, the jury was authorized to come to a different and reasonable conclusion based on the State’s case. Therefore, we reject White’s argument that insufficient evidence supported his conviction.

2. White next contends that there was a fatal variance between the indictment and the evidence presented by the State at trial. The indictment alleged that the defendants, individually and as parties to a crime, “did attempt to enter the locked carport of [a] dwelling house ... by prying at the locked carport door ....” White claims that because the State presented no evidence any defendant pried at the door, the State did not prove the crime was committed as alleged in the indictment. This argument is unpersuasive.

We no longer adhere to an overly technical application of the fatal variance rule, focusing instead on materiality. The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused. It is the underlying reasons for the rule which must be served: 1) the allegations must definitely inform the accused as to the charges against him as to enable him to present his defense and not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense. Only if the allegations fail to meet these tests is the variance “fatal.”

Decided June 18, 2013

Reconsideration denied August 8, 2013.

James N. Finkelstein, for appellant.

Gregory W. Edwards, District Attorney, for appellee.

(Citation, punctuation and footnote omitted.) Weeks v. State, 274 Ga. App. 122, 125 (1) (616 SE2d 852) (2005).

In this case, the indictment adequately informed White as to the charges against him. It placed White on notice that the State claimed that he was at a dwelling house without authorization and attempted to enter a locked door to that house. Additionally, a jury could conclude from the circumstantial evidence presented by the State that Hines attempted to pry the door open. To the extent that the indictment varied from the State’s case, it was immaterial and did not affect White’s ability to defend himself. Likewise, the alleged variance also fails to subject White to another prosecution for the same offense. See Smarr v. State, 317 Ga. App. 584, 588-589 (2) (732 SE2d 110) (2012) (concluding that despite the State’s inability to prove the owner of a burglarized gas station as alleged in the indictment, no threat existed to the defendant of another prosecution for the same offense).

Because the State presented sufficient evidence to support White’s conviction and White failed to demonstrate a fatal variance, we affirm his conviction.

Judgment affirmed.

Doyle, P. J., and McFadden, J., concur.

       White concedes in his brief that “[t]he State’s case was obviously premised on a contention that the Appellant may have, as a party to a crime (but not directly) attempted to enter a locked door to a house — not a locked door to a carport.”


author: Miller, Judge.

text:
    A11A1688.
    A11A2146.
    A11A2281.
    LUANGKHOT v. THE STATE. SALEUMSY v. THE STATE. PHOMMACHANH v. THE STATE.
    (747 SE2d 699)
   Miller, Judge.

In Luangkhot v. State, 292 Ga. 423 (736 SE2d 397) (2013), the Supreme Court of Georgia reversed the judgment of this Court in

Decided August 8, 2013.

Bruce S. Harvey, K. Julie Hojnacki, for appellant (case no. A11A1688).

Garland, Samuel & Loeb, John A. Garland, for appellant (case no. All A2146).

David D. Marshall, for appellant (case no. A11A2281).

Daniel J. Porter, District Attorney, Rodney K. Miles, Assistant District Attorney, for appellee.

Luangkhot v. State, 313 Ga. App. 599 (722 SE2d 193) (2012). Therefore, we vacate our earlier opinion and adopt the opinion of the Supreme Court as our own.

Judgment reversed.

Ellington, P. J., and Doyle, P. J., concur.


text:
    A13A0863.
    PULLINS v. THE STATE.
    (747 SE2d 856)
   Miller, Judge.

Following a jury trial, James Pullins was convicted of burglary (OCGA § 16-7-1 (a) (2008)) and criminal trespass (OCGA § 16-7-21 (a)). Pullins filed a motion for new trial, which the trial court denied. On appeal, Pullins contends that (1) the evidence was insufficient to sustain his convictions, and (2) the trial court erred in denying his motion to suppress the pretrial and in-court identifications of him. Finding no error, we affirm.

Viewed in the light most favorable to conviction, the evidence shows that on July 6, 2008 at approximately 1:40 a.m., the victim’s neighbor, Ricky Goss, was watching television in the bedroom of his apartment located in Fulton County, Georgia when he heard some noise. Goss looked out the window and saw Pullins loading the victim’s furniture onto a truck. Goss noticed that the victim’s apartment window was broken, there was glass under the window and Pullins had glass in his hair. Goss confronted Pullins, told Pullins to take the victim’s “stuff” off the truck and said he was going to contact the police. Although Pullins told Goss that he had permission to “be there,” Pullins took a mattress and bedroom furniture off the truck and put them back inside the apartment. Goss then went to the apartment management office and reported the burglary. By the time Goss returned, Pullins and the truck were gone.

An Atlanta police officer, who was already at the apartment complex, responded to the burglary report. When the officer arrived at the victim’s apartment, he found the front door closed, but unlocked, and he found a broken window. The officer interviewed Goss, who gave a physical description of Pullins. The officer located Pullins approximately 15 minutes later. Pullins matched the description that Goss gave to police and was still within the apartment complex. The officer detained Pullins and took him back to the victim’s apartment, where Goss positively identified Pullins as the burglar. The officer then placed Pullins under arrest.

1. Pullins contends that the evidence was insufficient to sustain his convictions. We disagree.

(a) Burglary

“Aperson commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another[.]” OCGA § 16-7-1 (a) (2008).

Here, the evidence showed that Pullins was seen loading the victim’s furniture, television and other items onto a truck. The victim’s missing property, including her television and some clothing, were never recovered. The victim did not know Pullins and did not give him permission to enter her apartment or take any of her belongings. Pullins’s intent can be inferred from his actions in falsely telling Goss that he had permission to be at the victim’s apartment and in taking the items off the truck when Goss told Pullins that he was going to contact the police. See Foster v. State, 288 Ga. 98, 100 (1) (701 SE2d 189) (2010) (defendant’s intent may be inferred from his conduct after the commission of the crime); Palmer v. State, 243 Ga. App. 656, 657 (533 SE2d 802) (2000) (criminal intent maybe inferred from words, conduct, demeanor, motive and all other circumstances connected with the charged crime). To the extent that Pullins argues that none of the stolen items were found in his possession, stolen items need not be recovered to sustain a conviction for burglary. See Wilcox v. State, 310 Ga. App. 382, 385 (713 SE2d 468) (2011). Based on the trial evidence, the jury was authorized to find Pullins guilty of burglary beyond a reasonable doubt.

(b) Criminal Trespass

“A person commits the offense of criminal trespass when he or she intentionally damages any property of another without consent of that other person and the damage thereto is $500.00 or less[.]” OCGA § 16-7-21 (a).

Here, the indictment charged Pullins with intentionally causing less than $500 in damage to the victim’s apartment by breaking a window. The evidence showed that a window was broken in the victim’s apartment and that Pullins had glass in his hair when he was loading the victim’s furniture onto the truck. “Although there was no evidence of the specific monetary amount of damage done to the [window], the jurors were authorized to draw from their own experience in forming an estimate of the damage to the [window], which is an everyday object.” (Citation omitted.) Feagin v. State, 317 Ga. App. 543, 546 (2) (731 SE2d 778) (2012); see also Burrell v. State, 293 Ga. App. 540, 542-543 (2) (667 SE2d 394) (2008). Accordingly, the evidence was sufficient to authorize a rational trier of fact to find Pullins guilty of criminal trespass beyond a reasonable doubt.

2. Pullins also contends that the trial court erred in denying his motion to suppress the pretrial and in-court identification testimony. We discern no error.

Although a show-up identification is inherently suggestive, identification testimony produced from the showup is not necessarily inadmissible. See Butler v. State, 290 Ga. 412, 414 (3) (721 SE2d 876) (2012).

A [one-on-one] show-up may be permissible in aiding a speedy police investigation and because there were possible doubts as to the identification which needed to be resolved promptly and in order to enhance the accuracy and reliability of identification in order to permit the expeditious relief of innocent subjects. We generally first determine whether the identification procedure was impermissibly suggestive.

(Citations and punctuation omitted.) Id. at 414-415 (3). If the showup was reasonably and fairly conducted at or near the time of the offense, it is not impermissibly suggestive, and we need not determine whether there was a substantial likelihood of irreparable misidentification. See id. at 415 (3); see also Wallace v. State, 295 Ga. App. 452, 454 (1) (671 SE2d 911) (2009).

Here, the responding officer canvassed the apartment complex looking for a person who matched the descriptions of the suspected burglar, which the officer received over the radio and from one of the witnesses outside the victim’s apartment. Approximately 15 minutes later, the officer located Pullins inside the apartment complex and took him back to the crime scene where Goss and another neighbor identified him as the person they saw go into the victim’s apartment. Pullins was outside of the officer’s police car when the witnesses identified him. Goss was positive that Pullins was the man who broke into the victim’s apartment because he spoke with Pullins face-to-face when he told Pullins that he was going to get the police. Additionally, both Goss and the other neighbor knew Pullins because he often hung around the apartment complex, and Goss recognized Pullins because Pullins had tried to sell him some lamps earlier that day. Accordingly, the showup was reasonably and fairly conducted at or near the time of the offense, and the trial court did not clearly err in finding that Goss’s identification of Pullins was reliable. See Butler, supra, 290 Ga. at 415-416 (3); Wallace, supra, 295 Ga. App. at 455 (1).

Even assuming that the showup here was impermissibly suggestive, based on the fact that Pullins was handcuffed when the officer removed him from the police car, Pullins still had to show that there was a substantial likelihood of irreparable misidentification. See Butler, supra, 290 Ga. at 415 (3). In evaluating the likelihood of misidentification, we look to the totality of the circumstances, including the

opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Neil v. Biggers, 409 U. S. 188, 199-200 (III) (93 SCt 375, 34 LE2d 401) (1972).

Considering the totality of the circumstances, including Goss’s prior interactions and face-to-face conversation with Pullins, his accurate description of Pullins to police, and the fact that he was positive that Pullins was the man who broke into the victim’s apartment, we find no substantial likelihood of misidentification. See Neil, supra, 409 U. S. at 201 (III); Mercer v. State, 268 Ga. 856, 857 (3) (493 SE2d 921) (1998). Therefore, the trial court did not err in denying Pullins’s motion to suppress the pretrial identification.

Finally, “notwithstanding any taint in pretrial identification procedures, a witness’ in-court identification may still be admitted if it has an independent origin from the illegal identification procedures involved.” (Citations and punctuation omitted.) Holbrook v. State, 209 Ga. App. 301, 302 (1) (433 SE2d 616) (1993). Goss’s identification of Pullins was clearly based on his earlier interactions and conversations with Pullins, not on his view of Pullins at the showup. See id. Accordingly, the trial court also did not err in denying Pullins’s motion to suppress Goss’s in-court identification of him.

Judgment affirmed.

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

Decided August 8, 2013.

Jennifer A. Trieshmann, for appellant.

Paul L. Howard, Jr., District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

        Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).


text:
    A13A0956.
    SMITH v. THE STATE.
    (747 SE2d 859)
   Miller, Judge.

Following a jury trial, Neal Garnett Smith was convicted of possession of cocaine and marijuana. Smith filed a motion for new trial, which the trial court denied after Smith declined the opportunity to have an evidentiary hearing. On appeal, Smith contends that (1) the evidence was insufficient to support his convictions, and (2) the more than three-year delay in his prosecution violated his constitutional right to a speedy trial. For the reasons that follow, we find that the evidence supports Smith’s convictions; however, we vacate the denial of Smith’s motion to dismiss his indictment and remand this case with direction.

Viewed in the light most favorable to conviction, the evidence shows that, in November 2008, a detective with the Vidalia Police Department began a drug investigation involving a Toombs County residence. The residence was leased by Smith’s girlfriend. Smith kept his dogs at the residence, and his mother lived next door. Following a controlled purchase of illegal drugs at the residence, an officer obtained a search warrant.

On or about November 21, 2008, officers executed the search warrant with help from the Tattnall County Sheriff’s Office and the Reidsville Police Department. The detective was on the team that actually made entry into the residence, which had a screened-in front porch. When the officers arrived at the residence, the detective saw a woman standing in the yard in front of the porch. The woman ran into the residence through the front door, and the detective and other officers immediately ran in behind her. When the officers entered the residence, they encountered a few individuals, including Smith’s brother. Small bags of marijuana were also found in the bathroom.

Meanwhile, another team of officers, including a Vidalia police sergeant, entered the back yard of the residence to secure that area. A third team of officers secured the area behind the property. Smith was in the back yard near the dog cages. When the sergeant entered the back yard, Smith took off running. The team of officers behind the property apprehended Smith on the front porch of a residence located on the adjoining property.

When Smith was apprehended, he had cocaine, less than one ounce of marijuana, and $2,600 in cash on or near his person. The cocaine was individually packaged in small bags for sale and had a gross weight of 63.15 grams with an average purity of 41.4 percent. Accordingly, the actual amount of cocaine in the bags weighed approximately 26 grams.

1. Smith contends that the evidence was insufficient to support his convictions. We disagree.

(a) Cocaine Possession

“Any person who sells, manufactures, delivers, or brings into this state or who is in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine,... commits the felony offense of trafficking in cocaine[.]” OCGA § 16-13-31 (a) (1). Furthermore, it is unlawful for any person to possess or have under his control any controlled substance. See OCGA § 16-13-30 (a). Since the indictment in this case alleged that Smith possessed more than 28 grams of cocaine, simple possession of cocaine was a lesser offense included as a matter of fact in the charged offense of cocaine trafficking. See Howard v. State, 220 Ga. App. 579, 583 (2) (469 SE2d 746) (1996).

Possession may be either actual or constructive. Constructive possession exists where a person, though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, and it must be based upon some connection between the defendant and the contraband other than spatial proximity. For this purpose, power may be inferred from access to the drugs, while the matter of intent may be derived from the surrounding circumstances.

(Citations and punctuation omitted.) Reid v. State, 298 Ga. App. 889, 890 (1) (681 SE2d 671) (2009).

As detailed above, the evidence showed that Smith ran from the back yard of his girlfriend’s leased residence and had approximately 26 grams of cocaine on or near his person when he was apprehended on the front porch of the adjoining property. Accordingly, the evidence authorized the jury to infer that Smith had either constructive or actual possession of the cocaine. See White v. State, 313 Ga. App. 605, 606 (1) (722 SE2d 198) (2012) (evidence supported finding that defendant had possession of cocaine found on ground next to dumpster where officers saw defendant drop something); Ware v. State, 297 Ga. App. 400, 401 (1) (677 SE2d 423) (2009) (evidence supported finding that defendant had actual possession where defendant made throwing motion with his hands and officers found cocaine on the ground where defendant had been standing). Although Smith argues that the witnesses gave conflicting testimony, “it is solely within the purview of the factfinder to weigh conflicting evidence and judge the credibility of the witnesses.” (Citation and punctuation omitted.) White, supra, 313 Ga. App. at 606 (1). Notwithstanding any conflicts, the evidence was sufficient to support Smith’s conviction for cocaine possession.

(b) Marijuana Possession

Under OCGA § 16-13-30 (j) (1), it is unlawful for any person to possess marijuana. Here, the evidence showed that Smith had marijuana on or near his person when he was arrested. Accordingly, the evidence was sufficient to support his conviction. See Smoot v. State, 316 Ga. App. 102, 113 (6) (729 SE2d 416) (2012); Johnson v. State, 299 Ga. App. 706, 711 (1) (e) (683 SE2d 659) (2009).

2. Smith also contends that the more than three-year delay between his arrest and the denial of his motion to dismiss the indictment violated his constitutional right to a speedy trial. For the reasons that follow, we vacate the denial of Smith’s motion and remand this case.

In evaluating a defendant’s constitutional speedy trial claim, a trial court must engage in a balancing test that considers four factors —the length of the delay, the reason for the delay, when the defendant asserted his right, and whether the defendant was prejudiced. Barker v. Wingo, 407 U. S. 514, 530 (IV) (92 SCt 2182, 33 LE2d 101) (1972). The trial court must first consider whether the relevant interval or period of delay is sufficiently long to be considered presumptively prejudicial. See Ruffin v. State, 284 Ga. 52, 55 (2) (663 SE2d 189) (2008). If the trial court determines that the delay is presumptively prejudicial, the trial court must then consider “whether [the] delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay’s result.” Doggett v. United States, 505 U. S. 647, 651 (II) (112 SCt 2686, 120 LE2d 520) (1992). The trial court’s order on a defendant’s speedy trial claim “must provide sufficient findings of fact and conclusions of law to permit this Court to determine if the trial court properly exercised its discretion under the Barker analysis.” (Citation omitted.) State v. Porter, 288 Ga. 524, 526 (2) (a) (705 SE2d 636) (2011). We apply an abuse of discretion standard in reviewing the denial of Smith’s motion to dismiss his indictment. See Fallen v. State, 289 Ga. 247, 248 (710 SE2d 559) (2011).

Here, the record shows that the State’s prosecution was delayed because the United States’Attorney’s Office (“USAO”) took the case initially with the intent to prosecute Smith. When the USAO informed the State in March 2011 that it would not be prosecuting Smith, the cocaine had to be sent back to the State Crime Lab for quantitative analysis. The State then submitted the case to the next grand jury, and Smith was indicted on September 1, 2011. Smith subsequently moved to dismiss his indictment on constitutional speedy trial grounds. The trial court denied Smith’s motion, and Smith was tried on the indictment and convicted in February 2012.

Despite the more than three year delay between Smith’s arrest and his trial, we are unable to provide proper appellate review of Smith’s speedy trial claim because neither the transcript of the hearing on Smith’s motion nor the order denying his motion to dismiss the indictment is included in the record on appeal. See Higgenbottom v. State, 288 Ga. 429, 430-431 (704 SE2d 786) (2011) (holding that trial court’s limited findings were insufficient to allow determination of whether trial court abused its discretion in denying defendant’s motion to dismiss his indictment on constitutional speedy trial grounds). Since this Court cannot ascertain if Smith’s right to a speedy trial was violated we must remand for findings of fact and conclusions of law consistent with Barker and Doggett. Accordingly, we vacate the order denying Smith’s motion to dismiss his indictment and remand this case for proceedings consistent with this opinion.

Decided August 8, 2013.

Johnny E. C. Vines, for appellant.

S. Hayward Altman, District Attorney, Charles D. Howard, Assistant District Attorney, for appellee.

Judgment affirmed in part and vacated in part, and case remanded with direction.

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

       Smith was indicted for trafficking in cocaine (OCGA § 16-13-31 (a) (1)) and marijuana possession with intent to distribute (OCGA § 16-13-30 (j) (1)). The jury convicted Smith of the lesser included offenses of cocaine and marijuana possession.

        Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       The cocaine was received by the Georgia Crime Lab in December 2008 and subsequently tested for weight only. Since this case was originally treated as a federal case, the cocaine was not tested for purity until it was determined that the case would be prosecuted on the state level. The cocaine was resubmitted to the Crime Lab in March 2011 with the original seal intact and was then tested for purity

       Smith, also argues that the evidence was tainted because one of the officers involved in executing the search warrant subsequently resigned and was prosecuted for stealing evidence. Smith’s argument is unavailing because the evidence showed that the sergeant in question was not involved with Smith’s arrest.


author: ANDREWS, Presiding Judge.

text:
    A13A1042.
    AUBAIN-GRAY et al. v. HOBBY LOBBY STORES, INC.
    (747 SE2d 684)
   ANDREWS, Presiding Judge.

While shopping on the premises of Hobby Lobby Stores, Inc., Marjorie Aubain-Gray picked up a candle holder. The glass globe resting on the top of the holder fell off and cut her right wrist. Aubain-Gray and her husband, Michael Gray, sued Hobby Lobby contending that Hobby Lobby’s negligence in failing to keep its store in a safe condition was the cause of her injuries. On appeal, AubainGray claims that the trial court erred in granting Hobby Lobby’s motion for summary judgment and in denying her motion for spoliation sanctions. For the reasons set forth below, we disagree and affirm.

1. Aubain-Gray contends that the trial court erred in granting summary judgment to Hobby Lobby because there remain issues of material fact concerning whether a hazardous condition existed on Hobby Lobby’s premises. We disagree.

In an appeal from the grant or denial of a motion for summary judgment, we review the law and the evidence de novo. See Ford v. Bank of America Corp., 277 Ga. App. 708 (627 SE2d 376) (2006). Summary judgment is properly rendered 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. See OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). To prevail on summary judgment, a defendant may show “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.” Id.

So viewed, the evidence shows that Aubain-Gray went shopping at the Hobby Lobby store in Acworth in December 2008. Hobby Lobby grouped its merchandise by type, color, and material, and the home decor items were displayed, according to the store manager, “like [they] would appear at your home.” After shopping for about 15 to 20 minutes, Aubain-Gray saw what she thought was a “yellowish glass vase” located on the top shelf and sitting “a little bit” above her eye level.

Thinking that the vase was one piece, Aubain-Gray picked up the base of the vase with her left hand in order to check the price. When she turned the vase over, the top portion dropped off and fell onto her right wrist, cutting her and causing nerve damage. Aubain-Gray deposed that if she had known that the vase consisted of more than one piece, she would have known not to lift it up.

According to the verified amendment to Aubain-Gray’s complaint, the item she picked up was a multiple piece glass candle holder. The manager of the store in which Aubain-Gray was injured deposed that in a “globe type candle holder,” the lamp portion is usually loose, explaining that “you have to put the candle in, light the candle, [and] clean the wax.”

Aubain-Gray sued Hobby Lobby contending that her injuries were the proximate result of Hobby Lobby’s negligence. According to Aubain-Gray, Hobby Lobby had actual knowledge that the candle holder was multiple pieces; but, when displayed on the shelf it appeared to be one piece. She alleged that Hobby Lobby was negligent in, among other things, failing to use ordinary care to keep its premises safe, in allowing its guests to be subject to unsafe products that were on sale on the premises, and in failing to post warning signs or markings. Hobby Lobby moved for summary judgment, and the trial court granted the motion. This appeal followed.

An owner is liable to an invitee for injuries caused by its “failure to exercise ordinary care in keeping the premises and approaches safe.” (Punctuation omitted.) Sipple v. Newman, 313 Ga. App. 688, 689-690 (722 SE2d 348) (2012) (quoting OCGA § 51-3-1). As we have said,

[a] proprietor’s obligation to keep the premises safe includes a duty to inspect the premises to discover possible dangerous conditions of which he does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises. The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner and not known to the person injured that a recovery is permitted.

(Citation omitted.) Thomas v. Home Depot, U.S.A., 284 Ga. App. 699, 700 (644 SE2d 538) (2007). A proprietor is not, however, the ensurer of its customer’s safety; rather, “what the law requires is such diligence toward making the premises safe as the ordinarily prudent businessman in such matters is accustomed to use.” Winn-Dixie Stores v. Hardy, 138 Ga. App. 342, 344 (4) (226 SE2d 142) (1976).

In a premises liability case, the plaintiff’s threshold burden is to show that the premises were defective or hazardous. See Cohen v. Target Corp., 256 Ga. App. 91, 92 (567 SE2d 733) (2002); Carroll v. Ga. Power Co., 240 Ga. App. 442, 443 (1) (523 SE2d 896) (1999). Although the candle holder’s globe was made of glass, and perhaps hazardous to that extent, Aubain-Gray knew that she was handling a glass object and that people can be cut by glass, and Hobby Lobby did not possess superior knowledge of that danger. See Thomas, 284 Ga. App. at 700 (basis of proprietor’s liability is its superior knowledge of the peril). The gravamen of Aubain-Gray’s complaint, however, is that Hobby Lobby created a hazardous condition by displaying an item that appeared to be of one piece, but in fact consisted of multiple pieces, and by failing to provide any signage or warning to alert an invitee that there were fragile or multi-piece items on display. But “[m]erely stating that a condition is dangerous does not constitute evidence that it is so.” Ford, 277 Ga. App. at 709. And although Aubain-Gray suffered an unfortunate injury, the occurrence of her injury, without more, does not itself show the existence of a hazardous condition or instrumentality. See Metis v. Wal-Mart Stores, 269 Ga. App. 366, 367-368 (604 SE2d 235) (2004) (although boxes fell from a display rack, injuring plaintiff, there was no evidence of a dangerous condition on the premises). Aubain-Gray did not come forward with any evidence to show that a display of a multi-piece item such a glass candle holder is a hazard. See Ford, 277 Ga. App. at 709 (finding that plaintiff failed to submit competent evidence, such as expert testimony, that the chair at issue was defective or hazardous).

Furthermore, Hobby Lobby “is not obligated to protect its customers from any object that could present a danger to them.” Thomas, 284 Ga. App. at 701. And “[a]n owner has no duty to foresee and warn against dangers which are not reasonably expected, and which would not occur except under exceptional circumstances or from unexpected acts of the person injured.” (Citation and punctuation omitted.) Id. See Branch v. Branch, 182 Ga. App. 728 (356 SE2d 759) (1987) (accord). Here, Hobby Lobby’s manager testified that there had not been an incident at the store in which a customer had been injured by a multi-piece glass item. In his experience, most of the time customers would handle a candle holder with two hands. Aubain-Gray does not point to evidence of a similar injury at a Hobby Lobby store. Thus, there is a lack of evidence that Hobby Lobby could reasonably expect, absent exceptional circumstances, that a customer would view a multi-piece candle holder as a one-piece vase and so handle it in a way leading to injury. See, e.g., Thomas, 284 Ga. App. at 702 (finding that the manner in which plaintiff was injured was not foreseeable because “none of the accidents [at Home Depot stores] involving tomato towers was in any way similar to the manner in which [plaintiff] was injured”). We agree with the trial court that as there is no “evidence of the existence of a dangerous condition, there can be no evidence that [Hobby Lobby] had any knowledge of such a danger, and therefore no recovery for [Aubain-Gray].” See Metts, 269 Ga. App. at 367.

2. Aubain-Gray also claims that the trial court erred in denying her motion for spoliation sanctions. We disagree.

Spoliation is “the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” (Citation, punctuation and emphasis omitted.) Silman v. Assoc. Bellemeade, 286 Ga. 27, 28 (685 SE2d 277) (2009). We will not disturb a trial court’s ruling resolving a spoliation issue absent abuse of discretion. See Kitchens v. Brusman, 303 Ga. App. 703, 705 (1) (694 SE2d 667) (2010).

Aubain-Gray moved for spoliation sanctions on the grounds that Hobby Lobby destroyed both the item that caused her injury and the store’s surveillance video from the day of the incident. Hobby Lobby conceded that the disintegrated remains of the glass candle holder were discarded a few days after the accident and that the video “recorded over itself” after 30 days, but argued that it was not bound to preserve the evidence in absence of contemplated or pending litigation. In support of its argument, Hobby Lobby produced the affidavit of its liability claims supervisor averring Hobby Lobby first learned that Aubain-Gray was contemplating litigation on February 9, 2009, when it received a letter of representation from AubainGray’s counsel. The trial court concluded that because the evidence in question was destroyed weeks before Hobby Lobby had notice of contemplated or pending litigation, it could not be sanctioned for spoliation.

Although Aubain-Gray was injured in an accident, this, “without more, is not notice that the injured party is contemplating litigation sufficient to automatically trigger the rules of spoliation.” (Citation and punctuation omitted.) Craig v. Bailey Bros. Realty, 304 Ga. App. 794, 796-797 (1) (697 SE2d 888) (2010). Aubain-Gray contends that Hobby Lobby knew or should have known that litigation was pending or contemplated because the store manager told her that Hobby Lobby would pay her medical bills. However, “notice of potential liability is not the same as notice of potential litigation.” Id. at 796 (1). Further, “a voluntary offer of assistance made on the impulse of benevolence or sympathy,” such as an offer to pay medical bills, is not considered to be an admission of liability. Brown v. Host/Taco Joint Venture, 305 Ga. App. 248, 253 (699 SE2d 439) (2010). See Abundant Animal Care v. Gray, 316 Ga. App. 193, 195 (1) (728 SE2d 822) (2012) (accord). Thus, we can find no fault with the trial court’s finding that the store manager’s alleged offer was insufficient to put Hobby Lobby on notice of pending or contemplated litigation.

Decided August 8, 2013.

Sabrina A. Parker, for appellants.

Mabry & McClelland, James W. Scarbrough, for appellee.

Additionally, Hobby Lobby’s store manager averred that on the date of the accident he had no reason to believe that Aubain-Gray was contemplating litigation. The manager stated that if he had thought Aubain-Gray was contemplating litigation he would have included that impression in the report he sent to the corporate office. He also represented that the information he gathered in response to the incident was the same information that would be gathered for any accident in the store. According to the manager, he did not review the store’s videotape because no camera was in a position to have shown the candle holder or the incident. See Powers v. Southern Family Markets of Eastman, 320 Ga. App. 478, 479 (1) (740 SE2d 214) (2013) (where, among other things, store manager investigated and reported accident as a matter of routine practice, trial court did not abuse its discretion in finding that defendant lacked notice that litigation was pending or contemplated at the time it failed to preserve the video); Paggett v. Kroger Co., 311 Ga. App. 690, 692-693 (2) (716 SE2d 792) (2011) (under the circumstances, including manager’s testimony that he did not believe that customer’s fall might lead to litigation at the time he filled out the incident report, and that the manager did not review the video recording, the trial court did not abuse its discretion in finding that no presumption of spoliation arose from defendant’s failure to preserve the video record). We find no abuse of discretion in the trial court’s denial of Aubain-Gray’s motion for spoliation sanctions. See id.

Judgment affirmed.

Dillard and McMillian, JJ., concur.

       In light of our findings, Aubain-Gra/s additional arguments, apart from the spoliation issue, are moot.


text:
    A13A1088.
    BLITCH v. THE STATE.
    (747 SE2d 863)
   Miller, Judge.

Edwin Blitch was charged with possession of cocaine with intent to distribute (OCGA § 16-13-30 (b)). Trial counsel moved to suppress the cocaine seized during a warrantless search of Blitch’s vehicle, and following a hearing, the trial court took the matter under advisement. The trial court did not issue a ruling on Blitch’s motion, and at Blitch’s trial, the recovered cocaine was admitted into evidence without objection from trial counsel. Blitch was convicted of the charged offense, and he appeals from the denial of his motion for new trial, contending that trial counsel was ineffective for failing to preserve his objections to the legality of the warrantless search. We discern no error and affirm.

“On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.” (Punctuation and footnote omitted.) Goss v. State, 305 Ga. App. 497 (699 SE2d 819) (2010). So viewed, the evidence showed that in October 2005, the Bulloch County Sheriff’s Office received information that Thomas Webb was selling cocaine at a local fair. An undercover police officer contacted Webb and arranged to buy cocaine from him. Following his sale of cocaine to the undercover officer, Webb was arrested. Webb agreed to cooperate with the police, and he revealed that an individual known as “Big Man” supplied him with cocaine. Using Webb’s cell phone, the officers called Big Man, gave the phone to Webb, and directed Webb to arrange for the delivery of $200 worth of crack cocaine to a convenience store located near the fairgrounds. The officers overheard Webb’s conversation with Big Man, who agreed to meet Webb at the designated area within ten minutes. The officers then quickly set up a surveillance team in the area of the convenience store.

While the police officers waited, they placed additional phone calls to Big Man to determine his location. During the last phone call, Big Man advised Webb that he was about to pull his vehicle, a Lincoln, into the parking lot of the convenience store. Around the same time, officers observed a green Lincoln Town Car drive slowly through the parking lot. The officers closed in on and pursued the vehicle. The officers subsequently stopped the vehicle and identified Blitch as the driver. Blitch was informed of the reason for the stop, removed from the vehicle, and handcuffed. An officer then asked for and obtained Blitch’s consent to search the vehicle. During the search, officers found crack cocaine packed in small ziplock bags and located in the center console. Blitch was charged and convicted of possession of cocaine with intent to distribute.

On appeal, Blitch contends that trial counsel was ineffective for failing to preserve his objections to the legality of the warrantless search of his vehicle when, after the trial court reserved ruling on his motion to suppress, trial counsel failed to object to the admission of the evidence seized from that search. Blitch argues that the police officers lacked probable cause to conduct the warrantless search because the information they ascertained gave them only a reasonable suspicion that he was involved in criminal activity. We disagree.

To prevail on a claim of ineffective assistance of counsel, a criminal defendant “must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance.” (Citation and punctuation omitted.) Devega v. State, 286 Ga. 448, 450 (4) (689 SE2d 293) (2010). When a defendant bases his claim of ineffective assistance upon the failure to preserve a motion to suppress, the defendant must make a strong showing that if trial counsel had preserved the issue, the damaging evidence would have been suppressed. See Fernandez v. State, 275 Ga. App. 151, 156-157 (3) (b) (619 SE2d 821) (2005). As shown below, Blitch has failed to meet this burden.

Preliminarily, we note that Blitch consented to the search of his vehicle. Blitch argues that his consent was not voluntary because he was in handcuffs at the time. However, “voluntary consent may be given while a suspect is handcuffed.” (Footnote omitted.) Maloy v. State, 293 Ga. App. 648, 651 (2) (667 SE2d 688) (2008). Prior to giving consent, Blitch was informed of the reason for the stop, and therefore he knew why the officer requested his consent to search. See id. There is no evidence that Blitch’s consent was the product of coercion, duress, or deceit. Consequently, Blitch has failed to show that his consent was invalid, see id., or that his motion to suppress would have been granted in light of this evidence.

Even if Blitch’s consent was not voluntarily given, the officers nevertheless had probable cause to search his vehicle.

Although the general rule under the Fourth Amendment to the United States Constitution is that police officers must secure a warrant prior to conducting a search, there is an exception to that requirement for the searches of automobiles. The automobile exception provides that a police officer may search a car without a warrant if he has probable cause to believe the car contains contraband, even if there is no exigency preventing the officer from getting a search warrant.

(Punctuation and footnotes omitted.) Brown v. State, 311 Ga. App. 405, 407 (2) (715 SE2d 802) (2011).

Because there is no exigency requirement in this context, the warrantless search of an automobile will be upheld so long as there was probable cause to suspect it contained contraband, even if the driver was arrested and handcuffed and the keys were taken from him before the car was searched.

(Citations, punctuation and footnote omitted.) State v. Sarden, 305 Ga. App. 587, 589 (699 SE2d 880) (2010). An officer has probable cause to search an automobile when the totality of the facts and circumstances would cause a reasonably prudent person to believe that contraband was present in the vehicle. See Brown, supra, 311 Ga. App. at 407-408 (2). Additionally,

when probable cause is based, at least in part, upon information supplied by an informant, the State must demonstrate that the information is reliable. The information, however, is not to be judged by any rigid test. Generally, probable cause is determined by the totality of the circumstances surrounding (1) the basis of the informant’s knowledge and (2) the informant’s veracity or reliability. A deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.

(Citation, punctuation and footnote omitted.) Lopez v. State, 292 Ga. App. 518, 520 (664 SE2d 866) (2008).

Here, the facts and circumstances before the police officers gave them probable cause to search Blitch’s vehicle. While the police officers developed probable cause based, in part, upon the information provided by an informant, the informant in this case had a sufficient basis of knowledge and was reliable. Webb’s basis of knowledge was self-evident because, as a seller of cocaine, he would necessarily have a source who supplied him with cocaine and had the means of setting up the drug transaction. See Lopez, supra, 292 Ga. App. at 520. Webb set up the proposed drug transaction under police supervision, and “[t]his factor weighed in favor of probable cause that the person coming to supply him with [cocaine] would have [cocaine] in that person’s possession.” (Citation and footnote omitted.) Id. at 520-521. Additionally, by telling officers that he would lead them to his suppliers and by agreeing to set up the drug buy, Webb proved his reliability. Id. at 521-522 (an individual under arrest who makes inculpatory statements and coordinates drug buy is a fact indicating reliability).

Decided August 8, 2013.

Peter D. Johnson, for appellant.

Moreover, Webb’s reliability was established because the information he provided was corroborated by the police officers. See Lopez, supra, 292 Ga. App. at 522 (an informant’s information predicting the future behavior of a suspect may establish reliability where the details are corroborated by police). The officers overheard Webb’s telephone conversations with Blitch, including the last conversation where Blitch stated that he would soon be arriving at the convenience store where the drug buy was to take place and that he would be driving a Lincoln. Shortly after the phone call, the police officers observed Blitch driving a Lincoln in the parking lot of the convenience store within the approximate time when the drug transaction was to take place. Considering the totality of the circumstances, the officers had probable cause to conduct a warrantless search of Blitch’s vehicle. See, e.g., id.; Stanford v. State, 251 Ga. App. 87, 89-90 (1) (553 SE2d 622) (2001) (probable cause present when officers observed the defendant driving a vehicle matching the description given by the informant to the location supplied by the informant and within close proximity of the time the informant predicted); Britt v. State, 208 Ga. App. 157, 158 (430 SE2d 28) (1993) (officers developed probable cause where they observed a truck matching the description given by an informant at the exact location where a drug buy was to take place).

Based on the foregoing, Blitch cannot establish that his motion to suppress would have been granted had counsel not waived the issue. Therefore, his ineffective assistance claim fails.

Judgment affirmed.

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

Richard A. Mallard, District Attorney, Joseph B. Black, Assistant District Attorney, for appellee.

       The State contends that the search was authorized as a search incident to arrest. However, the United States Supreme Court has limited the search-incident-to-arrest exception to those situations where “the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search,” or where “it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” (Citation and punctuation omitted.) Arizona v. Gant, 556 U. S. 332, 343 (III) (129 SCt 1710, 173 LE2d 485) (2009). Given that Blitch had been handcuffed, was outside his vehicle, and, therefore, could not access his car to retrieve evidence at the time it was searched, the search was not permitted as a search incident to arrest. See Sarden, supra, 305 Ga. App. at 589, n.l. Nevertheless, the automobile exception is a separate and distinct rationale for upholding the search of a vehicle under the Fourth Amendment. See Gant, supra, 556 U. S. at 347 (IV) (reaffirming the viability of the automobile exception).


text:
    A13A1239.
    BROOKS v. THE STATE.
    (747 SE2d 688)
   Miller, Judge.

Following a jury trial, Xavier Brooks was convicted of armed robbery (OCGA § 16-8-41 (a)). Brooks appeals from the denial of his motion for new trial, contending that the evidence did not support his conviction and that trial counsel was ineffective. For the reasons that follow, we affirm.

On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict. . . . [W]e neither weigh the evidence nor assess the credibility of witnesses, but merely ascertain that the evidence is sufficient to prove each element of the crime beyond a reasonable doubt. Moreover, conflicts in the testimony of the witnesses are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [Sjtate’s case, the jury’s verdict will be upheld.

(Punctuation and footnotes omitted.) Goss v. State, 305 Ga. App. 497, 497-498 (1) (699 SE2d 819) (2010).

So viewed, the evidence shows that after midnight on July 28, 2009, the victim left work at a club and went to a nearby convenience store. Around the same time, Brooks and two friends, Nathan Murray and Malachi Payne, who had been riding around in Payne’s vehicle, stopped at the same convenience store. While the victim was sitting in his parked car, he counted over $100 that he had in his possession. Brooks and Payne stated that they had “to get that,” and they then followed the victim’s vehicle when the victim left the convenience store.

The victim proceeded to a store to drop off a payment and then to a nearby Taco Bell, where he was followed by Brooks, Payne, and Murray. As Brooks, Payne, and Murray neared the Taco Bell, Payne stopped the vehicle, and the three men pushed it to the side of the restaurant. All three men approached the victim’s vehicle, which was in the drive-thru lane, and Payne told the victim that his car would not start, and asked the victim for some jumper cables. The victim informed Payne that he did not have any jumper cables. The victim asked the Taco Bell drive-thru attendant if she had any jumper cables, and she replied that she might and that she would go to her car to look. Although the victim informed Brooks, Murray, and Payne that the Taco Bell employee might have jumper cables, the men asked the victim if he could drive one of them to a store to buy jumper cables.

The victim then drove Brooks to a store. Brooks exited the victim’s vehicle and went around the building to the store’s entrance. When Brooks returned several minutes later, he told the victim that the store did not have any jumper cables, so the victim drove Brooks back to the Taco Bell where Payne and Murray were waiting. Upon returning to the Taco Bell, Brooks got out of the victim’s vehicle. Murray asked the victim if he could drive them home, and the victim agreed. Murray entered the victim’s vehicle and sat in the front passenger seat, while Brooks sat in the back seat behind the victim. Murray then took the victim’s keys out of the ignition, and Brooks hit the victim on the side of the head. Payne, who had remained outside the victim’s vehicle, then opened the driver’s side door, pulled the victim out of the vehicle, and began beating the victim. Meanwhile, Brooks and Murray rummaged through the victim’s vehicle and took, among other things, the victim’s wallet, camera, and cell phone. Payne also took the victim’s driver’s license and threatened to go to the victim’s residence and kill him if he reported the incident to the police. Brooks, Payne, and Murray then left in Payne’s vehicle.

The victim then went into the Taco Bell and asked employees to call the police. Police officers received a radio report with the descriptions of Payne’s vehicle — a golden-colored sedan — and the perpetrators. About five minutes after the radio report was issued, an officer spotted a car matching the description of the car referenced in the report coming from the direction of the crime scene. The officer pulled behind the vehicle and followed it until it stopped in a driveway. Upon exiting the vehicle, the officer made contact with Payne, Brooks, and Murray and informed them that he was investigating an armed robbery. The victim was brought to the scene, and he positively identified Payne, Brooks, and Murray as his assailants. Police officers then grabbed Murray and Payne to arrest them, and when they attempted to grab Brooks, he broke free and took off running. The officers subsequently recovered the victim’s property from Payne’s vehicle, the victim’s cell phone charger in Murray’s pocket, and the victim’s car keys in a bag that Brooks had been holding prior to his flight. Additionally, during a search of the victim’s vehicle, the officers located a stick on the rear floorboard where Brooks had been sitting when he struck the victim and that the victim stated had not been there before the incident.

1. On appeal, Brooks contends that the evidence was insufficient to sustain his conviction for armed robbery. We disagree.

A person commits the offense of armed robbery when, with intent to commit theft, he ... takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.

OCGA § 16-8-41 (a). Under OCGA § 16-2-20 (a), “[e] very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” One is concerned in the commission of a crime if, inter alia, he directly commits the crime or “[i]ntentionally aids or abets in the commission of the crime.” OCGA § 16-2-20 (b) (3).

Brooks argues that his conviction cannot be sustained because it was based solely upon the testimony of Murray, his accomplice. The rule that a felony conviction may not be based upon the uncorroborated testimony of an accomplice, however, applies only when the accomplice is the sole witness upon whose testimony the State relies. Sellers v. State, 294 Ga. App. 536, 539 (2) (669 SE2d 544) (2008). In this case, in addition to Murray’s testimony, the State introduced other evidence, including the victim’s testimony, that implicated Brooks. Notably, the victim identified Brooks as the person who hit him on the head just prior to being beaten by Payne, and the victim saw Brooks rummage through his vehicle and take several items. The victim’s testimony alone was sufficient to support a finding that Brooks committed armed robbery. See former OCGA § 24-4-8 (2012) (“The testimony of a single witness is generally sufficient to establish a fact.”); see also Reed v. State, 293 Ga. App. 479, 481 (1) (668 SE2d 1) (2008) (victim’s testimony, by itself, was sufficient to sustain conviction for armed robbery). Additionally, the victim’s car keys were found in a bag that Brooks had been holding when he was stopped by an officer, and Brooks fled from the officers when they attempted to arrest him. See Bryson v. State, 316 Ga. App. 512, 515 (1) (729 SE2d 631) (2012) (a jury may infer a defendant’s guilt from evidence of flight). Thus, the evidence here was sufficient to sustain Brooks’s conviction for armed robbery. See id. (evidence was sufficient to sustain conviction for armed robbery where defendant matched description given by witnesses, he fled from officers, he drove getaway car, and he was in possession of the victim’s property).

2. Brooks also contends that his trial counsel was ineffective for failing to subpoena his girlfriend, her cellular phone records, or Brooks’s cellular phone records to show that Brooks spoke at length to his girlfriend during the night in question and, therefore, he was unable to participate in the planning of the armed robbery. We disagree.

To establish an ineffective assistance of counsel claim, [Brooks] must show that the counsel’s performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984). [Brooks] must show that both prongs of the Strickland test are met. Further, a strong presumption exists that the counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Ineffectiveness claims are mixed questions of law and fact. We accept the trial court’s findings of fact unless clearly erroneous and apply the law to the facts independently.

(Citation and punctuation omitted.) Sellers, supra, 294 Ga. App. at 537 (1).

At the motion for new trial hearing, trial counsel testified that he contacted Brooks’s girlfriend and after speaking with her, determined that she would not provide testimony that she had been on the phone with Brooks during the entire period of time alleged by Brooks. Trial counsel testified that he elected not to call the girlfriend as a trial witness and did not subpoena the phone records because such evidence would not have supported Brooks’s defense.

It is well established that the decision as to which defense witnesses to call is a matter of trial strategy and tactics; tactical errors in that regard will not constitute ineffective assistance of counsel unless those errors are unreasonable ones no competent attorney would have made under similar circumstances.

(Citations and punctuation omitted.) Dickens v. State, 280 Ga. 320, 321 (2) (627 SE2d 587) (2006).

Moreover, at the motion for new trial hearing, Brooks failed to show that his girlfriend’s testimony or the subject telephone records would have been relevant and favorable to his defense or that it would have changed the outcome of the trial. The girlfriend did not testify at the new trial hearing, and the telephone records were not proffered. When a defendant bases his ineffective assistance of counsel claim on counsel’s decision not to call a particular witness, he must introduce either testimony from the uncalled witness or a legally recognized substitute for her testimony. Manriquez v. State, 285 Ga. 880, 881 (2) (684 SE2d 650) (2009). “Where, as here, the defendant fails to proffer the testimony of an uncalled witness, he cannot prove that there is a reasonable probability that the trial would have ended differently.” (Citations and punctuation omitted.) Felder v. State, 286 Ga. App. 271, 278 (5) (a) (648 SE2d 753) (2007). Accordingly, Brooks has failed to show that trial counsel’s decision not to call his girlfriend or subpoena the subject telephone records was an unreasonable trial strategy that constituted deficient performance or that he was prejudiced as a result.

Decided August 8, 2013.

Lorie L. Williams-Smith, for appellant.

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

Judgment affirmed.

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

       Brooks was also charged with two counts of obstruction of an officer (OCGA § 16-10-24 (b)); however, the State nolle prossed these counts.

       This provision has been retained hut renumbered as OCGA § 24-14-8 in Georgia’s new Evidence Code.