text:
    A15A1460.
    SHEROD v. THE STATE.
    (779 SE2d 94)
   Dillard, Judge.

In this interlocutory appeal, Timothy Lewis Sherod challenges the trial court’s denial of his motion to suppress evidence that was discovered after a traffic stop and subsequent search of the tractor-trailer he was driving. Sherod argues the court erred in denying his motion to suppress the evidence when (1) the traffic stop was unlawfully prolonged and lacked reasonable articulable suspicion, and (2) the drug-detection canine did not provide probable cause to search. For the reasons set forth infra, we affirm.

At the outset, we note that the Supreme Court of Georgia has reiterated three fundamental principles to follow in reviewing a ruling upon a motion to suppress. First, the trial judge sits as the trier of fact at a hearing on a motion to suppress. And because the trial judge hears the evidence, the judge’s findings based upon conflicting evidence are “analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them] .” Second, the trial judge’s decision with regard to questions of fact and credibility “must be accepted unless clearly erroneous.” Finally, we (as the reviewing court) must construe the evidence “most favorably to the upholding of the trial court’s findings and judgment.”

As to the first principle, our Supreme Court has further instructed that, “[t]o properly follow [it], we must focus on the facts found by the trial court in its order.” And here, the trial court made no written findings of fact in its order denying the motion to suppress; however, the court orally announced its factual findings on the record at the conclusion of the hearing. As a result, we will now review those findings.

We also note that the trial court’s order reflects that its ruling was made “[u]pon consideration of all the evidence submitted, including testimony, documents, photos, and/or any other evidence that was admitted . . . .” The record shows that during the hearing, without any objection, the State played a video recording of the traffic stop to refresh the officer’s recollection of events, and both the State and Sherod refer to this video in their appellate briefs and throughout their argument to the trial court below. Nevertheless, the video was not admitted into evidence at the hearing and, as a result, no video was transmitted with the record on appeal.

Turning to the facts of this case, the evidence before the trial court consisted of testimony from the K-9 officer who conducted the traffic stop, and that testimony showed that the officer was patrolling Interstate 20 in Douglas County on September 28, 2013. At approximately 9:15 a.m., the officer encountered Sherod’s tractor-trailer and noticed it weave over the white fog line two times, at which point the officer initiated a traffic stop with the intention of checking Sherod’s logbook to ensure that he had received adequate rest.

Upon approaching the tractor-trailer, the officer saw only one occupant, Sherod, the driver. But the officer also observed that the curtains to the sleeping compartment were closed and, when he questioned Sherod as to why they were closed, Sherod responded that he had a co-driver who was lying down on the bunk. The officer then requested to see Sherod’s license, logbook, and bill of lading, and he found it unusual when Sherod retrieved the documents from behind the sleeper curtain, keeping the curtain closed while doing so. He also observed that Sherod was nervous during this exchange, with heavy breathing and shaking hands.

After receiving the requested documents, the officer asked Sherod to exit the tractor-trailer while he reviewed them. Then, after Sherod had done so and was standing at the back of the truck, the officer walked back to the cab and asked to speak with the co-driver. As the co-driver emerged from the sleeper compartment, the officer noticed that he too kept the curtain tightly closed. Thereafter, the officer took the co-driver’s license and logbook to review as well.

While reviewing the two logbooks, the officer noticed that on at least one occasion during the drivers’ trip to and from California, both were listed as being off duty or in the sleeper compartment at the same time. The officer was suspicious of these notations because, in his experience, when a driver transports a load of perishable produce with a co-driver (as Sherod was doing), “the wheels never stop turning.” Thus, the officer found it odd that during these periods, there were no notations that the truck was being loaded, unloaded, waiting to be loaded, or waiting for a warehouse to open when nobody was driving.

Specifically, the logbooks show that beginning at 1:00 a.m. on September 25, both drivers were in the sleeper compartment, with Sherod in the compartment for a ten-hour period and the co-driver in the compartment for a nearly 24-hour period. There was, then, at least a ten-hour period in which no one was driving the truck. Sherod apparently explained this as having occurred when a particular pickup destination closed early. But the officer thought this explanation strained credulity because, in his experience, logbooks generally note when a truck is waiting to be loaded or unloaded, or for a warehouse to open; and the officer found it hard to believe that the truck was not loaded until 11:00 a.m. after waiting all night to unload. Thus, according to the officer, this information in the logbooks, coupled with the drivers’ nervous behavior related to keeping the sleeper-compartment curtain closed, caused him to “believe that there might be something else going on.”

In addition to reviewing the logbooks, the investigating officer also asked another officer who arrived on scene to run a check on the drivers’ licenses, and was advised that both individuals had prior criminal histories, with drug-related convictions on the part of the co-driver in 1994 and 1998. The officer also recalled that the load on the truck was not “sealed,” which he also found to be unusual. The officer explained that whether or not a load is sealed depends upon the shipping company, which means that it may or may not be unusual to find an unsealed load and that “there are occasions where it’s not [unusual].” But “more times than not” with shipments of produce, even in situations with partial pickups at several locations, the load will be sealed between destinations.

After reviewing the logbooks, the officer decided to issue a written warning citation to Sherod. The officer testified that at the point when he returned Sherod’s documents and issued the written citation, Sherod was not free to leave. And immediately after issuing the citation, the officer asked Sherod for consent to search the truck, which Sherod did not give. The officer then asked for permission to walk his K-9 dog around the truck, and when Sherod did not give consent for that either, the officer informed Sherod that he nevertheless intended to detain the drivers to walk the dog around the truck.

According to the officer, this detention — which occurred approximately 32 minutes after the initial stop began — -lasted approximately two minutes because as soon as the K-9 was released from the patrol car and walked up to the truck, the dog alerted to the presence of illegal contraband and sat at the entrance to the sleeper compartment. Thereafter, a search of the sleeper compartment revealed two boxes and two large bags filled with more than 200 pounds of marijuana. The drivers were immediately arrested and later indicted for trafficking marijuana.

At the motion-to-suppress hearing, the officer explained that he decided to conduct a K-9 sniff due to the inconsistencies in the drivers’ logbooks, Sherod and the co-driver’s nervous/suspicious behavior, the fact that the truck’s load was not sealed, the co-driver’s criminal drug history, and the officer’s years of drug interdiction experience. And at the conclusion of the hearing, the trial court denied the motion to suppress and found that, based upon the drivers’ suspicious behavior related to the curtain on the sleeping compartment, the co-driver’s criminal drug history, the inconsistency in the logbooks as compared to what the officer would normally expect to see, and the lack of a seal on the load, the officer had reasonable articulable suspicion of criminal activity so as to warrant further detention to conduct a K-9 sniff of the vehicle. We granted Sherod’s application for interlocutory appeal, and this appeal follows.

1. Although Sherod’s enumerations of error reflect a contention that “the trial court erred by holding that law enforcement did not unlawfully prolong the initial traffic stop to perform a search of the vehicle,” his somewhat convoluted argument devoted to this enumeration asserts both that the initial stop was prolonged and that the officer lacked reasonable articulable suspicion of criminal activity to perform a K-9 sniff of the vehicle.

On a motion to suppress contraband discovered during a search and seizure, the State bears the burden of proving that the search and seizure were lawful. Thus, on a motion to suppress evidence discovered during a traffic stop, “the State bears the burden of proving that the search of the car was lawful, and to carry this burden, the State must show that it was lawful to detain [the defendant] until the time the drug dog indicated the presence of drugs.” With these guiding principles in mind, we will now address Sherod’s contentions.

Sherod first argues that the investigating officer violated his Fourth Amendment rights by prolonging the traffic stop. The Supreme Court of Georgia has recently explained that there are two categories of claims that an officer illegally prolonged a traffic stop. In the first category are cases in which the officer allegedly extended the stop “beyond the conclusion of the investigation that warranted the detention in the first place.” And in the second category of cases, the detention has not been extended beyond the conclusion of the original investigation but, rather, “it is claimed that the investigation took too long.” In this second category of cases, courts examine whether the police “ ‘diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.’ ” In either category, the touchstone of our analysis is the reasonableness of the officer’s conduct. In other words, we ask whether the officer’s conduct in prolonging the stop was reasonable “given the objective facts known to the officer and the circumstances under which he was working.” And the question of the reasonableness of this conduct is, of course, a question of law.

Sherod appears to conflate these two scenarios, in turns arguing that the investigating officer took too long to pursue the original purpose of the traffic stop and also that, after issuing a warning citation, the officer illegally extended the stop beyond the conclusion of the initial investigation. But at the hearing (and now on appeal), the State did not dispute that after the officer issued the written citation to Sherod, a second detention began. And, as further discussed supra, the trial court believed that the initial stop was not at issue and therefore, the question before the court was whether the officer had reasonable articulable suspicion to further detain Sherod while his K-9 sniffed the tractor-trailer. Thus, because there was no finding that a second detention began earlier than at the point the warning was issued, and Sherod has not made a cogent argument or pointed to evidence of same, we will only consider whether the investigating officer had reasonable articulable suspicion of other illegal activity to justify further detaining Sherod after concluding the initial stop.

It is well established that after the tasks related to the investigation of the traffic violation and processing of the traffic citation have been accomplished, “an officer cannot continue to detain an individual without [reasonable] articulable suspicion.” And reasonable articulable suspicion requires “a particularized and objective basis for suspecting that a citizen is involved in criminal activity.” This suspicion need not meet the higher standard of probable cause, but it must only be more than mere caprice or a hunch. In assessing whether a reasonable articulable suspicion exists, “courts must look to the totality of the circumstances” — i.e., “objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers.”

Here, the trial court determined that the investigating officer had reasonable articulable suspicion of other illegal activity based upon the drivers’ suspicious behavior related to the curtain on the sleeping compartment, the co-driver’s criminal drug history, the inconsistency in the logbooks as compared to what the officer would normally expect to see, and the lack of a seal on the load. We agree.

At the time the officer decided to detain Sherod to conduct a K-9 sniff, he knew the following: that a co-driver had been lying down to rest behind the closed curtain of the tractor-trailer’s sleeping compartment when Sherod stopped and when he retrieved the requested documentation; that Sherod retrieved the requested documentation from behind the closed curtain, which was, in the officer’s experience, unusual; that the co-driver kept the curtain closed when he later emerged from the sleeping compartment; that the co-driver had two drug-related criminal convictions dating back to 1994 and 1998; that the cargo load was not sealed; and that on one occasion during a cross-country trip to California and back to Georgia, neither driver was behind the wheel for one 10-hour period, which was, in the officer’s experience, unusual when transporting perishable goods.

As to the sleeping compartment, the officer found both drivers’ behavior with regard to the closed curtain suspicious. And with regard to the logbooks, the officer noticed that Sherod was nervous while retrieving the documents from behind the closed curtain, and the books showed at least one unusual 10-hour period during which no one was driving the vehicle with no notation that the truck was waiting to be loaded, unloaded, or for a warehouse to open. Then, as far as the lack of a seal was concerned, the officer testified a seal would generally be present when hauling a load of perishable goods. Finally, the co-driver’s two drug-related criminal convictions, when considered together with all of the other information available to the officer at the time of Sherod’s detention, “contributes powerfully to the reasonable suspicion calculus.” We must also be mindful that our totality-of-the-circumstances analysis includes information available to the officer concerning “the modes or patterns of operation of certain kinds of lawbreakers,” and that from such experience and training, an officer “draws inferences and makes deductions ... that might well elude an untrained person.”

Decided November 3, 2015

The Pilgrim Law Group, J. Mac Pilgrim, for appellant.

Brian K. Fortner, District Attorney, Rachel D. Ackley, Assistant District Attorney, for appellee.

Thus, viewing the totality of the circumstances, as we must, we agree with the trial court that the officer had reasonable articulable suspicion.

2. Sherod next argues that the trial court “erred by not giving sufficient weight to evidence that the drug dog detection canine used by law enforcement did not provide probable cause to search the vehicle.” In an equally confusing explanation, Sherod asserts that the search of the tractor-trailer was unlawful because “(1) the underlying traffic stop was unlawfully prolonged; and (2) [the officer’s] use of his canine raised doubts as to the canine’s ability to adequately detect odors of unlawful chemical compounds.”

We reject the first contention for the reasons set forth in Division 1 supra. As to the second argument, Sherod further clarifies in his reply brief that he “does not argue that [the officer’s] drug detection canine was not qualified to perform any type of search, merely that in this particular case, the conduct of the canine and/or [the officer] rendered the search invalid.” Sherod appears to assert that the officer may have influenced his canine to alert to drugs. However, as we have previously held, whether a drug-detection dog “in fact alerted... was a question of fact for the trial court, which we must accept unless clearly erroneous.” There being no indication of same, this enumeration of error is wholly without merit.

Accordingly, for all of the foregoing reasons, we affirm the trial court’s denial of Sherod’s motion to suppress.

Judgment affirmed.

Ellington, P. J., and McFadden, J., concur.

        Miller v. State, 288 Ga. 286, 286 (1) (702 SE2d 888) (2010).

        Id.

        Id.

        Id.

        Id. at 287 (1) (emphasis omitted).

        See Scruggs v. State, 309 Ga. App. 569, 575 (4) (711 SE2d 86) (2011) (noting that, after listening to testimony at the motion-to-suppress hearing, “[t]he trial court then orally announced her factual findings on the record” and that, “[t]herefore, we apply the clearly erroneous standard to our review of this ruling”).

       Emphasis supplied.

        But see OCGA § 24-6-612 (providing for the use of written materials to refresh recollection); Russell v. State, 295 Ga. 899, 903 (5) (764 SE2d 812) (2014) (declining to decide whether trial court erred by refusing to allow defendant to show a full video recording of forensic interview to refresh child witness’s recollection).

        See Court of Appeals Rule 18 (b) (“When the notice of appeal directs that transcripts of a trial or a hearing be included in the record, copies of all video or audio recordings that were introduced into evidence shall be transmitted to this Court along with the trial or hearing transcript. It shall be the responsibility of the party tendering the recordings at a trial or a hearing to ensure that a copy of the recording is included in the trial court record; however, it is the burden of the appealing party to ensure that a complete record is transmitted to this Court on appeal, including the transmission of video or audio recordings____”). Cf. Rodriguez v. State, 295 Ga. 362, 368(2) (b), n. 11 (761 SE2d 19) (2014) (“[W]e note that a video recording of the traffic stop was tendered in evidence at the hearing below, but it does not appear in the record on appeal. We must assume, therefore, that the recording supports the decision of the trial court.” (emphasis supplied)). We also note that Sherod’s brief makes reference to facts that were not adduced at the motion-to-suppress hearing, citing to portions of the record that reflect photocopies of CDs and DVDs that contained discovery provided to Sherod by the State. We, of course, consider only the facts and evidence that were before the trial court when it ruled upon Sherod’s motion to suppress. See Paul v. Joseph, 212 Ga. App. 122, 125 (2) (441 SE2d 762) (1994) (“Appellate courts will review only evidence presented to the trial court before its ruling on the motion. Additional evidence will not be admitted on appeal.” (punctuation omitted)). However, in light of the parties’ various references to material not included in the transmitted record, and out of an abundance of caution, this Court contacted the trial court to inquire about any audio or video recordings that might be missing. The trial court responded that its practice is to only send an appellate court CDs and DVDs that were admitted into evidence, and again, that there were no CDs or DVDs admitted into evidence in this case.

       The co-driver was later identified as Jerry Coles. While Coles and Sherod were jointly indicted, and although Coles joined in Sherod’s motion to suppress, he is not a party to this appeal.

       The officer testified that he looked back “a couple of weeks prior to the stop because [the driver is] supposed to maintain the logbook for a 30-day period.” Accordingly, the officer started to examine the books as far back as September 1, 2013.

       The officer did not speak with the co-driver and, thus, did not hear his explanation.

       It is unclear from the testimony exactly when the other officer arrived, but at least two other officers arrived in separate patrol cars before Sherod was issued a citation. The officer testified that their arrival was due to a policy that requires “at least two officers to search a vehicle.”

       According to the officer, a seal “secures the integrity of the load, makes sure nobody’s messing with the load while it’s in transit, or moving narcotics in and out of a load of produce and contaminating it with germs or dirt or whatever else.”

       Although the record does not specify, this citation was presumably for Sherod’s alleged failure to maintain lane.

       Sherod also contends in conclusion that officers “violated the Fourth Amendment when they pursued an investigation into a minor traffic violation as a ruse to obtain access to the interior of the vehicle to confirm [an] anonymous tip about alleged drug activity.” Sherod also made this same argument to the trial court. But any facts as to an “anonymous tip about alleged drug activity” were not adduced at the motion-to-suppress hearing and, thus, were not considered by the trial court. As further addressed in footnote 9, supra, in support of these facts, Sherod cites to photocopies of CDs and DVDs of reciprocal discovery, not to the transcript of the motion-to-suppress hearing. And none of these alleged facts were a basis for the trial court’s ruling on the motion to suppress, as belied by the court’s findings on the record. Furthermore, the court noted that “[t]he initial stop is apparently not in contest here,” before making its finding that there was reasonable articulable suspicion to further detain the defendants to conduct a K-9 sniff. Nevertheless, we note that it is well established that “[w]hen an officer observes a traffic law violation, the resulting stop is not pretextual.” Worlds v. State, 328 Ga. App. 827, 829 (1) (762 SE2d 829) (2014) (punctuation omitted). And here, the officer initially stopped Sherod’s tractor-trailer after observing a failure to maintain its lane of travel. See OCGA § 40-6-48 (1) (“A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety . . . .”).

       OCGA § 17-5-30 (b); see Davis v. State, 266 Ga. 212, 213 (465 SE2d 438) (1996) (“Once a motion to suppress has been filed, the burden of proving the lawfulness of the warrant is on the state and that burden never shifts. The only burden upon the challenger of a search warrant is that of producing evidence to support his challenge, which burden is shifted to him only after the state has met its initial burden of producing evidence showing the validity of the warrant.” (citations omitted)).

        Bodiford v. State, 328 Ga. App. 258, 261 (1) (761 SE2d 818) (2014) (punctuation omitted); accord Dominguez v. State, 310 Ga. App. 370, 372 (714 SE2d 25) (2011).

       See U. S. Const, amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”); Ga. Const, art. 1, § 1, ¶ XIII (“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause supported by oath or affirmation particularly describing the place or places to be searched and the person or things to be seized.”).

        See Rodriguez, 295 Ga. 362.

        Id. at 369 (2) (b).

        Id.

        Id. (quoting United States v. Sharpe, 470 U. S. 675, 686 (II) (B) (105 SCt 1568, 84 LE2d 605) (1985)).

        Bodiford, 328 Ga. App. at 261 (1).

        Id. at 261-62 (1).

        Id. at 262 (1).

        See supra footnote 16.

        See Rodriguez v. United States,_U. S._,_(II) (135 SCt 1609, 191 LE2d 492) (2015) (holding that “[a] uthority for the seizure... ends when tasks tied to the traffic infraction are — or reasonably should have been — completed,” and remanding to lower court for consideration of whether detention for dog sniff was supported by individualized suspicion).

       As previously discussed, many of Sherod’s arguments rely upon facts that were not adduced at the motion hearing and are not reflected in the record — either because Sherod cites to photocopies of CDs and DVDs that contained discovery, or because Sherod (and the State) cite to the video recording of the traffic stop, which the State failed to admit into evidence notwithstanding its reliance upon same. Nevertheless, it appears undisputed by the record evidence that is before us that in the approximately 30 minutes before issuing the warning citation, the investigating officer reviewed the drivers’ pertinent documents and questioned Sherod, and we have previously held that a period of approximately 30 minutes was not an inappropriate amount of time to pursue the initial investigation of a traffic stop of a tractor-trailer by reviewing pertinent documents and questioning the driver. See Valentine v. State, 323 Ga. App. 761, 763, 765 (2) (748 SE2d 122) (2013).

        Weems v. State, 318 Ga. App. 749, 752 (1) (734 SE2d 749) (2012) (punctuation omitted); accord Faulkner v. State, 256 Ga. App. 129, 130 (567 SE2d 754) (2002).

        State v. Whitt, 277 Ga. App. 49, 50(625 SE2d 418) (2005); accord Padron v. State, 254 Ga. App. 265, 268 (1) (562 SE2d 244) (2002).

        Whitt, 277 Ga. App. at 50; Padron, 254 Ga. App. at 268 (1).

        State v. Thompson, 256 Ga. App. 188, 189 (569 SE2d 254) (2002).

        State v. Causey, 246 Ga. App. 829, 832 (1) (b) (540 SE2d 696) (2000) (quoting United States v. Cortez, 449 U. S. 411, 417-18 (101 SCt 690, 66 LE2d 621) (1981)).

        See Hardaway v. State, 309 Ga. App. 432, 433 (1) (710 SE2d 634) (2011) (affirming denial of motion to suppress when driver “shoved his arm between the console and the driver’s seat up to his elbow” and “it appeared that [the driver] was trying to conceal something” but driver told officer “he was looking for his wallet but ultimately retrieved it from the driver’s side visor”); Jones v. State, 259 Ga. App. 849, 850 (578 SE2d 562) (2003) (affirming denial of motion to suppress when, while initiating traffic stop, officer observed driver reach under passenger seat and appear to forcibly push something under with his arm, causing officer to believe driver was hiding something).

        See Valentine, 323 Ga. App. at 762, 765 (2) (affirming denial of motion to suppress when logbook showed excessive downtime and an unexplained detour); United States v. Gonzales, 342 Fed. Appx. 446, 449 (IV) (11th Cir. 2009) (affirming conviction after denial of motion to suppress when officer developed reasonable articulable suspicion of illegal activity based upon, inter alia, “extreme nervousness” displayed by both drivers and inconsistencies between the drivers’ logbooks and their individual statements to the officer); United States v. Monzon-Gomez, 244 Fed. Appx. 954, 960-61 (III) (B) (11th Cir. 2007) (affirming the denial of motion to suppress when drivers gave conflicting explanations for where they were coming from, and documentation did not list a delivery destination in current state or reflect a scheduled delivery that would confirm one driver’s explanation for their route); United States v. Rodriguez, Crim. Case No. 1:10-CR-0407-TWT-JFK-3, 2011 WL 5191805, at *4 (N.D. Ga. 2011) (denying motion to suppress when logbook did not contain any notation of a stop in Atlanta, although officer knew from other sources that the driver had stopped there, and approximately four hours were wholly unaccounted for in logbook and driver had no explanation for the extra travel time).

        See Monzon-Gomez, 244 Fed. Appx. at 957 (II), 961 (III) (B) (affirming denial of motion to suppress when door to refrigerated trailer was locked with a suspicious combination lock instead of the seal that officer knew was “supposed” to be on door); Rodriguez, Crim. Case No. l:10-CR-0407-TWT-JFK-3, 2011 WL 5191805, at *4 (denying motion to suppress when bill of lading and seal both reflected inconsistencies with normal operating procedures when a computer-generated seal was marked through with pen and a handwritten seal was placed above, and that type of seal could be purchased at any truck stop and was not the type issued by the company from which it was purportedly received; trailer was also locked with a titanium bolt seal that would require bolt cutters and would prevent law enforcement from getting inside without same).

        United States v. Santos, 403 F3d 1120, 1132 (II) (B) (2) (e) (10th Cir. 2005); see Brown v. State, 269 Ga. 830, 832-33 (2), n. 2 (504 SE2d 443) (1998) (listing as “reasonably-founded suspicious factors” the following: “an officer’s knowledge of past criminal involvement by individuals inside the stopped vehicle', irregularities in licensing and insurance documentation or the driver’s authority to be operating the stopped vehicle; and the location where the stop occurred” (emphasis supplied)); Giles v. State, 284 Ga. App. 1, 4 (1) (642 SE2d 921) (2007) (considering prior arrest history as a relevant factor in totality of circumstances analysis). Cf. Martin v. State, 316 Ga. App. 220, 226 (2) (729 SE2d 437) (2012) (holding that “a past arrest for possession, without more, is simply not enough to provide reasonable articulable suspicion that the person is currently in possession”).

        Evans v. State, 262 Ga. App. 712, 716 (1) (b) (586 SE2d 400) (2003) (punctuationomitted).

        Id. (punctuation omitted); accord Giles, 284 Ga. App. at 4 (1).

        See supra note 33 and accompanying text.

        McKinney v. State, 326 Ga. App. 753, 756 (1) (755 SE2d 315) (2014).


source: Caselaw Access Project

author: McFADDEN, Judge.

license: Public Domain

text:
    A15A1594.
    LEHMAN v. THE STATE.
    (779 SE2d 101)
   McFADDEN, Judge.

After a jury trial, Donald Ray Lehman was convicted of possession of methamphetamine and possession of oxycodone, and sentenced to ten years probation. He appeals, arguing that the evidence presented at trial was insufficient to support his convictions and that the trial court erred in refusing to give his written request to charge on the law of mere association. We agree that the evidence is insufficient to support the convictions and therefore reverse. Accordingly, we do not reach Lehman’s jury charge argument.

[0]n an appeal following a conviction, the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility.

Webb v. State, 228 Ga. App. 624, 625 (2) (492 SE2d 312) (1997) (citations and punctuation omitted). So viewed, the evidence showed that on April 20, 2013, a deputy sheriff pulled over the pickup truck in which Lehman was a passenger because a headlight was not working. Lehman’s co-defendant, Kermit Nobles, Jr., owned the truck and was the driver. The officer had Nobles step out of the vehicle and obtained Nobles’s consent to search the vehicle. The officer searched the truck while Lehman was still inside the truck and Nobles was still outside, and saw a container on top of a pile of clothes on the back seat floorboard. The container held 0.11 grams of methamphetamine and one tablet of oxycodone. Both Lehman and Nobles denied having knowledge of the container and were each arrested.

Lehman argues that the evidence presented at trial showed only his presence in the truck where the drugs were found and was insufficient to allow the jury to conclude that he was in constructive possession of the contraband.

“Evidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction.” Whipple v. State, 207 Ga. App. 131, 132 (1) (427 SE2d 101) (1993) (citation and punctuation omitted). A finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity or mere presence in the vehicle where the contraband is found. Id. The only evidence of Lehman’s constructive possession offered by the state other than spatial proximity is the testimony of Nobles. Nobles testified that the arresting officer conducted two separate searches of the vehicle and saw the container only on the second search. As the container was not found on the first search, yet was found on the second search when Lehman was the sole occupant of the vehicle, the state argues that Lehman had exclusive opportunity for control of the contraband. However, the arresting officer did not testify that he had conducted multiple searches, nor was he called back to corroborate Nobles’s testimony.

Decided November 3, 2015.

Steven M. Harrison, for appellant.

Timothy G. Vaughn, District Attorney, Gregory A. Oberry, Assistant District Attorney, for appellee.

While the testimony of a single witness is generally sufficient to establish a fact, in “felony cases where the only witness is an accomplice, the testimony of a single witness shall not be sufficient.” OCGA § 24-14-8 (emphasis supplied). As the testimony of Nobles is the only evidence other than spatial proximity connecting Lehman to the contraband, the evidence was insufficient to support a conviction based on constructive possession. See Claybrooks v. State, 189 Ga. App. 431 (375 SE2d 880) (1988). Compare Davenport v. State, 308 Ga. App. 140, 145-146 (1) (b) (706 SE2d 757) (2011) (methamphetamine convictions affirmed because accomplice’s testimony regarding the defendant’s constructive possession corroborated by observations of investigating officers).

Given our disposition, we do not reach Lehman’s argument that the trial court erred in refusing to give the charge of mere association to the jury. But see Miller v. State, 249 Ga. 96, 98 (2) (287 SE2d 543) (1982) (charge on mere presence covered in substance same principles involved in requested mere association charge).

Judgment reversed.

Ellington, P. J., and Dillard, J., concur.


author: ELLINGTON, Presiding Judge.

text:
    A15A1382.
    WHITE et al. v. THE RINGGOLD TELEPHONE COMPANY.
    (779 SE2d 378)
   ELLINGTON, Presiding Judge.

This appeal concerns a petition by The Ringgold Telephone Company to condemn approximately 0.03 acres of land in Catoosa County for the purpose of providing telephone and telecommunication services. Appellants Brian D. White and Woodland Manor, LLC were among the respondents named in the petition. Following a hearing before a special master, the trial court entered an order condemning the property for Ringgold’s use upon its payment of $3,974.69 into the registry of the court. On appeal, White and Woodland Manor contend that the trial court erred in denying their motion to dismiss the petition and in entering the condemnation order because, as a statutory prerequisite to the condemnation, Ringgold was required to show that it could not procure the property by contract, and because Ringgold’s petition was premature pending resolution of a previously filed lawsuit by White against Ringgold in which Ringgold’s easement rights to the property were at issue. For the reasons set forth below, we disagree and affirm.

The record shows that on March 26, 2004, White and Ringgold agreed that White would grant a perpetual easement to Ringgold to place “communication cabinet[s] . . . along with a concrete pad” on a portion of certain Catoosa County real property (the “Property’) then owned by White. The easement was recorded in the county records shortly thereafter. Consistent with the easement, Ringgold placed a concrete pad and telecommunication cabinets on the Property and began providing its customers with Internet and telephone services from the facility.

Under the terms of their agreement, Ringgold agreed to provide NexTV video service and Internet service at no charge to White’s residence and office, subject to the condition, among others, that “[t]he video service and internet service being provided for herein shall continue until [Ringgold] sells, transfers, assigns, disposes of, ceases operation of or stops [Ringgold’s] NexTV service television product and/or internet service [.]”

On November 19, 2012, White, who alleged that Ringgold had stopped providing the agreed-upon cable and Internet service, filed a complaint in the Superior Court of Catoosa County seeking damages for breach of contract and a declaratory judgment canceling the easement and requiring the removal of the concrete pad and Ring-gold’s cable and Internet equipment. White also asserted claims for breach of implied promise to pay, trespass, and ejectment.

On September 4, 2013, while White’s lawsuit was pending and the parties were engaged in discovery, Ringgold filed an in rem condemnation petition seeking fee simple rights and an access easement to the Property, described as a “.03 acres, more or less” parcel in Catoosa County. White and Woodland Manor moved to dismiss the petition on the ground that Ringgold already had a contractual right to possess the Property and so could not show that it failed to secure the Property by contract. The trial court denied the motion to dismiss and proceeded to appoint a special master to make and file with the clerk of court an award and a report of findings.

At the outset of the special master hearing, the parties stipulated to the accuracy of the legal description of the Property, Ringgold’s compliance with the “technical requirements” of Title 22, and the fair market value of the Property as of the date of the hearing. The special master heard testimony from four witnesses, including Phil Erli, Ringgold’s executive vice president, and Mike Schmidt, an engineering manager for Ringgold. Schmidt, an expert in the field of engineering, testified, among other things, that it was necessary for Ringgold to take the Property in order to continue to provide safe, reliable, and quality telephone service to its customers. Erli testified, among other things, to the negotiations between Ringgold and White for the purchase of the Property.

According to Erli, he approached White in 2010 and told him that Ringgold was exiting the NexTV business. White suggested that Ringgold buy the Property. The parties initially agreed on a purchase price, but a title search revealed a number of problems, liens, and encumbrances. Ringgold informed White that it needed clear title to move forward. White later telephoned Ringgold and demanded that it remove its facilities from the Property, and White thereafter filed his civil action against Ringgold. Before pursuing the condemnation, Ringgold made a final offer to purchase the Property in an amount at least equal to what it believed to be just and adequate compensation. White and Woodland Manor offered no evidence at the hearing.

Following the hearing, the special master filed an award recommending to the court that the Property be condemned by a judgment inrem upon payment of $3,974.69 into the registry of the court. White and Woodland Manor timely excepted to the special master’s award to the extent it was based on a finding that it was necessary for Ringgold to condemn the property. The trial court, following another hearing, and upon consideration of White and Woodland’s exception, adopted the award of the special master and found the Property to be condemned in rem to the use of Ringgold upon payment of $3,974.69 into the registry of the court.

On appeal, White and Woodland Manor argue that the trial court erred in denying their motion to dismiss the petition and entering its order authorizing the condemnation of the Property because Ring-gold was required to establish that it had failed to secure the Property by contract to satisfy the statutory prerequisite set forth in OCGA § 22-1-6, and to show that the taking was necessary. Ringgold cannot make this showing, they argue, because Ringgold is currently in possession of the Property and its contractual rights thereto remain to be determined in the pending action between Ringgold and White. To the extent the issue is one of law, particularly whether White’s pending civil action prohibited the trial court from proceeding with the condemnation, our review is de novo. See Eagle’s Landing Christian Church v. Henry County, 308 Ga. App. 416, 416-417 (708 SE2d 23) (2011). The trial court, however, sits as the finder of fact in ruling on exceptions to the special master’s ruling, and its “judgment will not be disturbed if there is any evidence in the record to sustain it.” (Citation and punctuation omitted.) MARTA v. Central Parking System of Ga., 167 Ga. App. 649, 652 (3) (307 SE2d 93) (1983).

White and Woodland Manor contend that, as prerequisite to the taking, Ringgold was required to comply with OCGA § 22-1-6,which states:

If a person who is authorized to exercise the power of eminent domain cannot by contract procure the property or the easement, right of way, waterway, franchise, or other interest sought to be condemned, the person may take or damage the property or interest upon paying or tendering to the owner thereof just and adequate compensation.

By reference to this statute, our Supreme Court has said: “Failure to secure the property by contract, by reason of the inability of the parties to agree upon the compensation to be paid therefor, is an essential prerequisite to the condemnation of private property for public uses.” Elberton v. Hobbs, 121 Ga. 750 (49 SE 780) (1905). The Supreme Court later held that “it is necessary, preliminary to the commencement of the proceedings, for the condemnor to make an effort to agree with the owner of the property upon the price to be paid for the land.” Miller v. State Highway Dept., 200 Ga. 485 (1) (37 SE2d 365) (1946). The evidence at the special master hearing showed that Ringgold made an effort to agree on a purchase price for the Property, but that those negotiations ultimately failed. This was sufficient to show that Ringgold could not procure the property by contract within the meaning of OCGA § 22-1-6. See Miller v. State Highway Dept., 200 Ga. at 485 (1) (Where county representative stated that he wanted to pay the purchase price for the land, if he and the owner could agree on it, or by arbitration, and owner said that he did not want either one, nor “the road at this place,” there was sufficient compliance with requirement that condemnor make an effort to agree upon price to be paid.).

White and Woodland Manor nevertheless contend that until Ringgold’s contractual rights to the Property are resolved in the pending lawsuit, the requirement of OCGA § 22-1-6 that the condemnor “cannot by contract procure the property” will remain unsatisfied. The Georgia courts, however, have consistently found that condemnation actions are separate from suits for damages related to the property to be taken and that “the latter is no reason to delay the former.” Black v. Fayette County, 268 Ga. 570, 571-572 (2) (492 SE2d 517) (1997). See Simon v. Dept. of Transp., 245 Ga. 478, 479 (265 SE2d 777) (1980) (“Though the law generally favors the prevention of a multiplicity of actions, it appears that condemnation law in Georgia rather strictly limits the relevant evidence in condemnation cases and therefore separate suits for different kinds of damages are not uncommon.”); Cook v. State Highway Bd., 162 Ga. 84, 95-96 (132 SE 902) (1926) (The condemnation proceeding by the highway department was not a bar to the owners’ action for damages against the counties, and the action for damages was not a ground for arresting the condemnation proceeding.). White and Woodland Manor show no basis for creating an exception to this rule here. The two suits involve different causes of action. Compare OCGA § 9-2-44 (a) (“[T]he pendency of a former action for the same cause of action between the same parties in the same or any other court having jurisdiction shall be a good cause of abatement.”). Further, the dispute between White and Ringgold concerns the easement rights arising from the 2004 agreement, whereas in the condemnation proceeding Ringgold sought to procure a fee simple interest in the Property. White and Woodland Manor argue that public policy favors that “[p]eople should do what they say they will do,” Baker v. Jellibeans, Inc., 252 Ga. 458 (1) (314 SE2d 874) (1984), but White has an available remedy for the alleged breach of contract. See id. (Where there is consideration for the promise, “the law will require competent adults to do what they voluntarily promise to do or pay damages for the breach[.]”) (punctuation omitted; emphasis supplied). The purpose of the special master condemnation proceeding, on the other hand, is to provide a “quick and effective adjudication of the just and adequate compensation to be paid the owner or owners of such property before taking the same.” OCGA § 22-2-102.1. White and Woodland Manor show no authority under Title 22, or otherwise, which would authorize the delay or abatement of the condemnation proceedings. Rather, the two actions are separate, and White’s filing of the first action did not preclude the special master and the trial court from addressing Ringgold’s petition for taking. See Black v. Fayette County, 268 Ga. at 571-572 (2).

White and Woodland Manor also claim that Ringgold did not show the required “necessity to condemn the private property.” OCGA § 22-2-102.2 (5). They point out that Ringgold is currently occupying the Property and providing services to its customers, and, they argue, it is therefore not necessary to condemn the Property at this time. The uncontroverted evidence showed that the Property, which was centrally located to Ringgold’s service area and on an elevation not susceptible to flooding, was necessary for its provision of safe, reliable, and quality telephone service. In the process of negotiations with White, Ringgold determined that there were liens and encumbrances on the Property such that it “probably [could not] get clean title.” Ringgold then sought to condemn the Property in rem after White, in his civil suit, sought to eject Ringgold therefrom. Thus, the evidence showed that the Property was required for Ringgold’s provision of reliable telephone service and that its continued access to the Property was in doubt. See OCGA § 22-2-101 (Special Master Act intended to provide a simpler and effective method of condemnation in, among others, “cases where there are conflicting interests or doubtful questions”). “Moreover, Georgia law provides that the condemnor is the exclusive judge of necessity in the condemnation of private property for public purposes.” Mosteller Mill, Ltd. v. Ga. Power Co., 271 Ga. App. 287, 291-292 (3) (609 SE2d 211) (2005). See OCGA § 22-2-102.1; Zuber Lumber Co. v. City of Atlanta, 237 Ga. 358, 360 (4) (227 SE2d 362) (1976) (The Special Master Act “provides that the condemning body is the exclusive judge as to the necessities of the public needs. A large discretion is vested in a party having the right to condemn, in the selection of particular property to be condemned.”) (citation and punctuation omitted). We agree with the trial court that the evidence was sufficient to show the necessity of the taking.

Decided November 4, 2015

Gershiser, Peters, Elliott & Cannon, R. Wayne Peters, Gary L. Henry, for appellants.

Troutman Sanders, Douglas A. Henderson, Courtney E. Ferrell; MarshallM. Bandy, Jr.;Locke Lord, Elizabeth J. Campbell, Adamson B. Starr, for appellee.

In light of the foregoing, we find that the trial court did not err in denying White and Woodland Manor’s motion to dismiss the petition, nor in overruling their exception to the special master’s award.

Judgment affirmed.

Dillard and McFadden, JJ., concur.

       Testimony at the special master hearing shows that White subsequently conveyed the property to Woodland Manor.

       Ringgold asserted, and White and Woodland Manor do not contest, that Ringgold is a telegraph or telephone company that may exercise the right of eminent domain under Title 22. See OCGA §§ 46-5-1 (a); 46-5-63 (12). Ringgold filed the in rem condemnation under the provisions for proceedings before a special master, OCGA §§ 22-2-100 through 22-2-114.

       See Styers v. Atlanta Gas Light Co., 263 Ga. 856, 860 (2) (439 SE2d 640) (1994) (“[T]he timely filing of exceptions to non-value issues passed on by the special master is the means by which judicial review of those issues may be had.”).

       Ringgold does not contest that it was required to comply with OCGA § 22-1-6. See OCGA § 22-2-102 (a) (providing, by 2006 amendment, “in addition to the requirements set forth in Chapter 1 of this title,” condemnor shall “file a petition in a superior court having jurisdiction for a judgment in rem against the property....”). Compare Harwell v. Ga. Power Co., 154 Ga. App. 142, 148 (6) (267 SE2d 769) (1980) (attempt to negotiate the purchase price is not prerequisite to condemnation under special master procedure). We note that the subject of pre-condemnation negotiations is addressed with specificity in OCGA § 22-1-9. Whether Ringgold complied with OCGA § 22-1-9 is not at issue in this appeal.


author: Doyle, Chief Judge.

text:
    A15A1186.
    POSTELL v. ANDERSON et al.
    (779 SE2d 397)
   Doyle, Chief Judge.

J. Timothy and Danelle Anderson (collectively, “the plaintiffs”) sued Pamela Postell, seeking to recover for injuries sustained by their minor child, S. A., during a wheelchair accident while in Postell’s care. Postell, a paraprofessional at S. A.’s school, moved for summary judgment, arguing that she was immune from liability. The trial court denied the motion, and this appeal followed. Because we conclude that Postell was immune from suit, we reverse.

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

Viewed in favor of the plaintiffs, the record shows that Postell, who held a certificate from the Georgia Professional Standards Commission, worked as a paraprofessional at Mountain Road Elementary School in Cherokee County, where she was assigned to assist in the special education classroom taught by her supervisor, Susan Frankel. On October 25,2011, Postell transported 14-year-old, wheelchair-bound S. A. and another student, J. B. (a special education kindergarten student who had behavioral problems), to observe a tulip-planting, which took place at the school sign at the bottom of a hill; other students were there as well. At one point, J. B. grabbed another kindergartner around her neck. Jennifer Meadows, another teacher who was supervising other children at the event, separated J. B. and the other student and tried to comfort and calm them; J. B., however, was “wild.” In an attempt to help, Postell took her hands off of S. A.’s wheelchair and turned toward J. B. and the other student. S. A.’s wheelchair then rolled away and flipped over.

The plaintiffs filed suit against Postell, who moved for summary judgment, arguing that she was immune from suit because her actions were discretionary. The trial court denied the motion, concluding that there were questions of fact regarding S. A.’s location at the time her wheelchair rolled away, particularly whether her wheelchair was on a hill. This appeal followed.

1. Postell contends that the trial court erred by denying her motion for summary judgment, arguing that she was immune from liability because her actions were discretionary, not ministerial. We agree.

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

“A ministerial duty may be established by evidence such as a written policy, an unwritten policy, a supervisor’s specific directive, or a statute.”

Here, in support of their argument that Postell’s actions were ministerial, the plaintiffs rely on two things. Neither is sufficient. First, as the plaintiffs contend, Postell, as a paraprofessional, was required to follow the instructions of her certified teachers, in this case, Frankel and Meadows. In her statement given after the accident, Frankel relayed her conversation with Postell immediately before Postell transported S. A. and J. B. to the tulip-planting activity:

I described the parking lot and designated area in which the activity would take place. I told [Postell] that she would take the students to . .. Meadows’[s] classroom and go with her and her students. I said to follow her direction as she would be the certified teacher.... [After making sure S. A.] was “buckled in,” I then described to [Postell] how [Postell] would feel going down the driveway toward the designated area for the tulip bulb planting. I cautioned her about grav ity, the chair was heavy],] and if she [was] not careful[J the chair could get away from her.... [After the activity,] Meadows will tell you when it is time to leave. When you do leave the area, you will be going uphill. Once you start up the hill, do not stop for any reason as gravity will be working against you.

The plaintiffs argue that these instructions constituted a specific directive giving rise to a ministerial duty. We disagree. As we have repeatedly held, “supervising and disciplining school children constitute discretionary acts.” In this case, notwithstanding Frankel’s warnings about gravity and the weight of the wheelchair, and regardless of the factual discrepancies regarding whether the wheelchair was on flat or sloped ground when it rolled away, Postell’s actions in removing her hands from S. A.’s wheelchair to attend to the conflict involving J. B., who was also in her care, was simply an exercise of “her discretionary authority to monitor, control, and supervise the children. . . .”

The plaintiffs also argue that Postell’s actions were ministerial because they violated “the simple and absolute rule [that] states that a school professional must keep her hands on a student’s wheelchair until the brake is set.” The plaintiffs have failed, however, to provide evidence of any such directive or rule, and it is undisputed that Postell received no training on when it is safe or unsafe to take her hands off of a wheelchair or whether she is required to engage the brake on the chair when pushing a student in a wheelchair. And contrary to the plaintiffs’ assertions, the training that Postell received regarding engaging the wheelchair brake while transferring a student in or out of the chair is simply inapplicable here; Postell was not transferring S. A. in or out of her chair at the time of the accident.

Decided November 5, 2015

Gregory, Doyle, Calhoun & Rogers, Randall C. Farmer, for appellant.

Hoffspiegel & Associates, Lloyd W. Hoffspiegel, Alexander S. Hoffspiegel, for appellees.

Thus, because Postell’s actions were discretionary, and in the absence of any contention by the plaintiffs or evidence that she acted with actual malice or intent to injure S. A., the trial court erred by denying Postell’s motion for summary judgment on the basis of official immunity.

2. Based on our holding in Division 1, we need not address Postell’s argument that she was in loco parentis as a paraprofessional pursuant to OCGA § 20-2-215.

Judgment reversed.

Phipps, P. J., and Boggs, J., concur.

        Effingham County v. Rhodes, 307 Ga. App. 504 (705 SE2d 856) (2010), quoting Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       Although the order appealed from is interlocutory, we have jurisdiction under the collateral order doctrine. Like sovereign immunity, official immunity is an entitlement not to stand trial rather than a mere defense to liability. And this Court has held that an order denying such an immunity claim is appealable under the collateral order doctrine because the order conclusively determine^] the disputed question, resolve[s] an important issue completely separate from the merits of the action, and [is] effectively unreviewable on appeal from a final judgment.

        Taylor v. Campbell, 320 Ga. App. 362, 363, n. 3 (739 SE2d 801) (2013) (citation and punctuation omitted), quoting Bd. of Regents of the Univ. Sys. of Ga. v. Canas, 295 Ga. App. 505, 507 (1) (672 SE2d 471) (2009).

       (Citation and punctuation omitted; emphasis supplied.) Effingham County, 307 Ga. App. at 506-507 (3), quoting Banks v. Happoldt, 271 Ga. App. 146, 148 (608 SE2d 741) (2004).

       (Citations omitted.) Roper v. Greenway, 294 Ga. 112, 114-115 (751 SE2d 351) (2013).

       On appeal, however, the plaintiffs do not identify any failure on the part of Postell to obey instructions by Meadows.

       (Emphasis supplied.)

       (Punctuation and emphasis omitted.) Aliffi v. Liberty County School Dist., 259 Ga. App. 713, 715 (578 SE2d 146) (2003) (sending a student to the school garage to retrieve an object was discretionary), quoting Gamble v. Ware County Bd. of Ed., 253 Ga. App. 819, 824 (2) (b) (561 SE2d 837) (2002) (supervising students on a school bus was discretionary). See also Butler v. Doe, 328 Ga. App. 431, 433-434 (762 SE2d 145) (2014) (supervision of students during a presentation was a discretionary function); Payne v. Twiggs County School Dist., 232 Ga. App. 175, 177 (2) (501 SE2d 550) (1998) (decisions regarding enforcing policy prohibiting students from carrying weapons on school property were discretionary); Perkins v. Morgan County School Dist., 222 Ga. App. 831, 835 (2) (476 SE2d 592) (1996) (decisions regarding enforcing policy governing early dismissal of students were discretionary); Wright v. Ashe, 220 Ga. App. 91, 93-94 (469 SE2d 268) (1996) (decisions regarding enforcing policies prohibiting students from leaving school and governing students’ use of cars on campus and class attendance were discretionary).

        Aliffi, 259 Ga. App. at 716.

       See id.


text:
    A15A1586.
    DIXON v. CSX INTERMODAL TERMINALS, INC.
    (779 SE2d 400)
   Doyle, Chief Judge.

Earnest Dixon sued CSX Intermodal Terminals, Inc. (“CSXIT”), seeking to recover damages under the Federal Employers’ Liability Act (“the FELA”) for injuries he suffered when he fell from a railcar while unloading it. The trial court granted summary judgment to CSXIT, finding that Dixon could not recover because CSXIT was not a common carrier under the FELA. Dixon appeals that ruling, and we affirm for the reasons that follow.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

The facts in this case are undisputed. Dixon filed a negligence action under the FELA against CSXIT, his employer, alleging that he was injured when he fell off of a railcar while attempting to unlock an inter-box connector (a device used to secure containers on a railcar). CSXIT moved for summary judgment, and the trial court granted the motion, concluding that

the FELA only applies to “common carriers by railroad. . . . CSXIT, an intermodal terminal services company that does not offer rail carriage (or the rail portion of intermodal transportation) to the public or otherwise, cannot be transformed into a “common carrier by railroad” merely because it works with and is owned by the same corporate parent as a railroad. The evidence before this [cjourt clearly establishes that CSXIT is not, and does not operate, a railroad. Accordingly, it is not a “common carrier by railroad” for purposes of the FELA.

On appeal, Dixon contends that the trial court erred by concluding that the FELA does not apply to his claims against CSXIT. We disagree.

45 USC § 51 provides in relevant part:

Every common carrier by railroad while engaging in [interstate or foreign commerce] shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce,... for such injury ... resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. . . .

The statute does not define the term “common carrier by railroad.” The United States Supreme Court has held that

the words “common carrier by railroad,” as used in the act, mean one who operates a railroad as a means of carrying for the public — that is to say, a railroad company acting as a common carrier. This view not only is in accord with the ordinary acceptation of the words, but is enforced by the [statute’s] mention of cars, engines, track, roadbed, and other property pertaining to a going railroad.

The Tenth Circuit has further explained that “the fundamental inquiry” under Wells Fargo is whether the defendant “operate [s] a going railroad that carries for the public.” Indeed, “there exist a number of activities and facilities which, while used in conjunction with railroads and closely related to railroading, are yet not railroading itself.”

To determine whether the FELA applies to Dixon’s claims against CSXIT, we must examine the business and operations of CSXIT. CSX, a public company, has multiple wholly owned subsidiaries, including CSXT and CSXIT, which are “separate, distinct[,] and wholly independent corporations.” CSXT is a railroad. “CSXIT is not a railroad,” and it “has never been authorized to operate as a railroad common carrier.” Instead,

CSXIT is in the business of providing motor carrier and transloading services. Transloading services involve the movement of shipping containers between rail cars and trucking chassis [ ] and moving trailers onto and off of flatbed railcars. . . . CSXIT does not provide transportation by rail of either passengers or freight and does not construct railroad lines or operate trains. At no time has CSXIT provided any railroad transportation services or point-to-point transportation by rail. . . . CSXIT does not own rail cars, locomotives, rail lines, or line of road[ ] and does not have any right of way by rail. CSXIT does not transport anything along railroad lines. CSXIT does not employ locomotive engineers, conductors [,] or any other traditional railroad employees.

Decided November 5, 2015

“CSXIT does not engage in rail yard switching operations,” which involve “the taking apart, moving[,] and reconnecting of rail cars, engines[,] and locomotives to form trains.” Instead, a separate railroad company moves the train into the terminal. Once CSXIT employees begin loading and unloading the containers, no train is permitted to enter the terminal; a flag warning system and biomechanical “derailer” ensure compliance with this prohibition. Only after the containers are loaded and unloaded, and with CSXIT’s permission, is the railroad permitted to enter the terminal, connect the railcars to a locomotive, and move the train.

The United States Supreme Court, when examining the legislative history of the FELA, explained that “[i]n 1939[,] Congress substantially amended [the FELA], ... By refusing to broaden the meaning of railroads, Congress declined to extend the coverage of the Act to activities and facilities intimately associated with the business of common carrier by railroad.” No court has ever concluded that transloading services such as those performed by CSXIT in this case constitute railway transportation under the FELA. And in cases filed against CSXIT’s former parent company, CSX Intermodal (“CSXI”), district courts have concluded that the defendant was not a railroad subject to the FELA.

Here, although CSXIT’s employees perform tasks related to the railroad business at a rail terminal, given the facts presented in this case, CSXIT is not itself a common carrier by railroad within the meaning of the FELA. Accordingly, the trial court did not err by granting summary judgment to CSXIT.

Judgment affirmed.

Phipps, P. J., and Boggs, J., concur.

Warshauer Law Group, Michael J. Warshauer, Trent S. Shuping, for appellant.

McGuireWoods, Angela M. Spivey, Andrew G. Phillips, for appellee.

       (Punctuation omitted.) Goss v. Alabama Great Southern R., 279 Ga. App. 720, 721 (632 SE2d 479) (2006), quoting Hall v. Norfolk Southern R. Co., 258 Ga. App. 712, 712-713 (574 SE2d 902) (2002).

       Following the incident, Dixon received over $162,000 in workers’ compensation benefits. According to the trial court’s order, Dixon subsequently filed a FELA action against CSX Transportation, Inc. (“CSXT”), but later dismissed that case. He then filed the instant FELA case against both CSXT and CSXIT, but later dropped CSXT, leaving CSXIT as the sole defendant.

       The trial court relied upon Edwards v. Pacific Fruit Express Co., 390 U. S. 538, 540-542 (88 SCt 1239, 20 LE2d 112) (1968) (holding that the FELA does not cover employees of a company that maintained, leased, and serviced refrigerated railroad cars for the shipment of perishable items even though those services are “intimately associated” with the business of a railway company).

       (Emphasis supplied.)

       (Emphasis supplied.) Wells Fargo & Co. v. Taylor, 254 U. S. 175, 187 (3) (41 SCt 93, 65 LE 205) (1920) (holding that an express company is not a common carrier by railroad). See also Edwards, 390 U. S. at 539.

       (Punctuation omitted.) Smith v. Rail Link, Inc., 697 F3d 1304, 1308 (II) (A) (10th Cir. 2012).

        Edwards, 390 U. S. at 540.

       Edwards, 390 U. S. at 541.

       See Williams v. CSX Transp., Civ. A No. 01-3433 (II) (B) (2) (a) (E.D. Pa. Nov. 15, 2002) (concluding that CSXI was not a common carrier by railroad within the meaning of the FELA because “CSXI does not operate locomotives or rail transportation in its daily business operations [but] rather... is a broker of transportation with a trucking division that transports freight to and from rail terminals”) (punctuation omitted); Brankin v. CSX Transp., No. 94 C 4926 (N.D. Ill. Oct. 28, 1996) (“CSXI, standing alone, is not a common carrier railroad within the meaning of the FELA”).


author: Ray, Judge.

text:
    A13A1071.
    THE STATE v. LAMPL.
    (779 SE2d 122)
    Decided November 6, 2015.

      Tracy Graham-Lawson, District Attorney, Kathryn L. Powers, Elizabeth A. Baker, Frances C. Kuo, Assistant District Attorneys, for appellant.

      The Steel Law Firm, Brian Steel, for appellee.
   Ray, Judge.

In the consolidated case of State v. Lampl (and Lampl v. State), 325 Ga. App. 344 (750 SE2d 685) (2013), this Court affirmed the trial court’s order dismissing a particular count of the indictment charging Lampl with perjury in regard to statements that he made before a special purpose grand jury. In State v. Lampl, 296 Ga. 892 (770 SE2d 629) (2015), the Supreme Court of Georgia reversed Division 1 of this Court’s consolidated opinion, finding that the trial court’s dismissal of the perjury count and the suppression of Lampl’s statements were improper. In so holding, the Supreme Court found that the special purpose grand jury had exceeded the scope of its investigation, but also concluded that such conduct “did not constitute a violation of Lampl’s constitutional rights or otherwise rise to the level necessary to justify these sanctions.” Id. at 895-899 (1), (2). Accordingly, we vacate Division 1 of our opinion and adopt the opinion of our Supreme Court as our own in place of that division.

In light of the foregoing, Divisions 2 and 3 of our previous opinion are now moot; accordingly, we vacate these divisions.

Judgment reversed.

Barnes, P. J., and Miller, J., concur.


author: Branch, Judge.

text:
    A15A1323.
    JACKSON v. THE STATE.
    (779 SE2d 402)
   Branch, Judge.

Earlene Daphne Jackson appeals from a restitution order entered by the Superior Court of Toombs County requiring Jackson to pay $7,715 to Barry James Allen Brown, the victim of Jackson’s crimes of financial identity fraud and residential mortgage fraud. Jackson contends that the evidence does not support that part of the trial court’s order which requires her to compensate Brown for the time he lost from work as a result of Jackson’s criminal conduct. For reasons explained more fully below, we find no error by the trial court in awarding Brown lost wages resulting from the time he lost from work because of Jackson’s crimes against him, including the days Brown was required to testify at the criminal proceedings brought against Jackson. We further find, however, that the trial court erred in awarding Brown his lost wages for the day he took off work to testify at the restitution hearing. Accordingly, we vacate the trial court’s restitution order and remand for entry of a new order consistent with this opinion.

A trial court’s restitution order must be based on evidence presented at a restitution hearing as to the factors set forth in OCGA § 17-14-10. See OCGA § 17-14-7 (b). Thus, “[o]n appeal from an order of restitution, we review the record to determine whether a restitution award was supported by a preponderance of the evidence.” Tobias v. State, 319 Ga. App. 320, 329 (5) (735 SE2d 113) (2012) (footnote omitted).

The facts in this case are undisputed, and the record shows that Jackson was a friend of Brown and his wife. Sometime before the alleged crimes occurred, Jackson housesat for the couple for approximately three months while the Browns were temporarily relocated to Pennsylvania. During that time, Jackson obtained Brown’s personal identification information, including his Social Security number. She thereafter used that information to obtain a mortgage loan in Brown’s name from People’s Bank in Lyons. The loan was used to purchase a home in Lyons, and another man posed as Brown at the closing. Brown discovered the existence of the fraudulent loan in April 2011 and reported it to authorities. Following an investigation, Jackson was indicted in July 2012 on one count of financial identity fraud and four counts of residential mortgage fraud. After Jackson was able to refinance the home and place the mortgage loan solely in her name, the State agreed to a negotiated guilty plea. Pursuant to that agreement, Jackson pled guilty to all charges. The trial court sentenced Jackson to ten years on each count, with the sentences to run concurrently and with credit for time served and the balance of the sentences to be served on probation. Additionally, under the plea agreement Jackson agreed to pay restitution in an amount to be determined by the trial court.

The trial court held a restitution hearing in September 2014, at which the State presented Brown’s testimony regarding the damages he had suffered as a result of Jackson’s criminal conduct. Brown testified that he is a self-employed heavy equipment mechanic who travels to job sites to perform repairs. Brown normally charges $55 per hour for his time on repairs and $1.50 per mile for his travel, and he typically works a 13 to 14 hour day. According to Brown, he spent $675 in attorney fees attempting to get the fraudulently-obtained loan off of his credit report and ensuring that he would not be held liable for the loan. He further testified that he took a total of 15 days off from work as a result of Brown’s conduct and the subsequent prosecution: three days to speak with attorneys; four days to speak with representatives of People’s Bank and law enforcement investigators; and eight days coming to court proceedings during the prosecution of the case. Brown also explained that he was seeking to recover only for a typical eight-hour workday, which at his normal rate of $55 per hour would be $440 per day. On cross-examination, Brown admitted that he had never actually lost any money he would have otherwise earned, because he made up his missed time by working weekends.

Based on Brown’s testimony and the evidence concerning Jackson’s finances, the trial court entered a restitution order requiring Jackson to pay Brown restitution in the amount of $7,715. In calculating the amount of restitution owed, it appears the trial court awarded Brown $440 per day for a total of 16 eight-hour workdays (the fifteen missed days Brown testified to and an additional day for his attendance at the restitution hearing), as well as the $675 he spent on attorney fees.

At the restitution hearing, the State bore the burden of proving, by a preponderance of the evidence, the amount of the damages suffered by Brown as a result of Jackson’s criminal conduct. See Austin v. State, 315 Ga. App. 713, 713-714 (727 SE2d 535) (2012); OCGA § 17-14-7 (b). On appeal, Jackson argues that the State failed to prove that Brown suffered any damage other than the expenditure of $675 in attorney fees. Specifically, Jackson contends that because Brown testified that he made up his lost work time by working weekends, the State failed to prove that Brown actually suffered damages in the form of lost wages. We disagree.

Georgia law requires a trial judge, as part of the sentencing process, to “make a finding as to the amount of restitution due any victim, and order an offender to make full restitution.” OCGA § 17-14-3 (a). “The amount of restitution ordered shall not exceed the victim’s damages.” OCGA § 17-14-9. See also Cardwell v. State, 225 Ga. App. 337, 338 (484 SE2d 38) (1997) (“[t]he maximum amount of restitution recoverable in a criminal case is that which would be recoverable in a civil action”) (citations and punctuation omitted). For purposes of restitution, damages are defined as “all special damages which a victim could recover against an offender in a civil action,... based on the same act or acts for which the offender is sentenced, except punitive damages and damages for pain and suffering, mental anguish, or loss of consortium.” OCGA § 17-14-2 (2). Under Georgia law, “[s]pecial damages are those which actually flow from a tortious act; they must be proved in order to be recovered.” OCGA § 51-12-2 (b). And it is well established that lost wages are a form of special damages. See, e.g., Central of Ga. R. Co. v. Carter, 212 Ga. App. 528, 531 (4) (442 SE2d 269) (1994). Accordingly, a trial court may, in an appropriate case, require an offender to compensate a victim for her lost wages, provided the State presents evidence which allows the trial judge to “calculate the amount of the loss with a reasonable degree of certainty.” MCI Communications Svcs. v. CMES, 291 Ga. 461, 463 (728 SE2d 649) (2012) (citations and punctuation omitted).

Here, Jackson does not challenge the evidence showing the amount of wages Brown earned in a typical workday. Nor does she dispute that Brown missed 15 days of work because of her crimes against him. Rather, she argues that the State failed to prove that Brown suffered any lost wages, given his testimony that he worked weekends to make up his lost work time during a given week. This argument, however, ignores relevant law as to the damages a tort victim may recover in a civil action.

Under Georgia law, where a victim has lost time from work as a result of the tortious conduct of another, the victim may recover lost wages even if a third party has already compensated the victim for that loss. See Amalgamated Transit Union Local 1324 v. Roberts, 263 Ga. 405, 406 (1) (434 SE2d 450) (1993) (“ ‘[I]t is the tortfeasor’s responsibility to compensate for all harm that he causes, not confined to the net loss that the injured party receives’ ”), quoting Restatement (Second) of Torts § 920A comment (b), p. 514. This rule results from the fact that “[t]he courts are concerned not only with compensation of the victim, but with admonition of the wrongdoer.” Id. And if one party is going to receive a “windfall” as a result of third-party payments made to the victim, “it is usually considered more just that the injured person should profit, rather than let the wrongdoer be relieved of full responsibility for his wrongdoing.” Id. at 407 (1) (citation and punctuation omitted). We find that this same rationale applies in restitution proceedings, which allow a victim to recover those special damages he could otherwise recover in a civil tort action. See OCGA § 17-14-2 (2). Accordingly, the trial court did not err in requiring Jackson to make restitution to Brown for the work time he lost as a direct result of her criminal conduct toward him. This would include the days that Brown spent away from work meeting with lawyers, the bank, and law enforcement authorities, as well as the days he spent testifying at the criminal proceedings brought against Jackson. And given Brown’s testimony as to both the amount of time he lost from work and how much that time cost him, in terms of lost wages, a preponderance of the evidence supports the court’s restitution award as to the 15 days of work Brown missed prior to the restitution hearing.

Decided November 6, 2015.

Hamilton & Maddox, Tina E. Maddox, for appellant,

iS. Hayward Altman, District Attorney, Jessica B. Wilson, Assistant District Attorney, for appellee.

We further find, however, that the trial court erred in requiring Jackson to compensate Brown for the day he took away from work to appear at the restitution hearing. As noted earlier,

[t]he restitution mechanism is an attempt to avoid the necessity of a separate civil action and to determine the amount of loss caused by the criminal act in the usually earlier criminal proceedings rather than in a second and more protracted civil suit. Consequently, the amount of restitution ordered may not

exceed those damages the victim could recover in a civil action. Taylor v. State, 295 Ga. App. 689, 691 (2) (673 SE2d 7) (2009) (citation and punctuation omitted). We are aware of no law that would permit a civil litigant to recover for the time lost from work as a result of the litigant’s prosecution of his civil lawsuit. Given this fact, we find that the trial court erred in awarding Brown the equivalent of a day’s wages for the time he spent testifying at the restitution hearing. We therefore vacate the trial court’s order and remand for entry of a new restitution order, consistent with this opinion.

Judgment vacated and case remanded with direction.

Andrews, P. J., concurs. Miller, J., concurs in judgment only.

       OCGA § 17-14-10 (a) provides:
      In determining the nature and amount of restitution, the ordering authority shall consider: (1) The financial resources and other assets of the offender or person ordered to pay restitution including whether any of the assets are jointly controlled; (2) The earnings and other income of the offender or person ordered to pay restitution; (3) Any financial obligations of the offender or person ordered to pay restitution, including obligations to dependents; (4) The amount of damages; (5) The goal of restitution to the victim and the goal of rehabilitation of the offender; (6) Any restitution previously made; (7) The period of time during which the restitution order will be in effect; and (8) Other factors which the ordering authority deems to be appropriate.

       Brown’s normal earnings of $440 a day multiplied by 16 equals $7,040. When the $675 in attorney fees is added to that amount, the total is $7,715.

       Because “[t]he restitution mechanism is an attempt to avoid the necessity of a separate civil action,” “the statutory scheme requires the [trial] court to determine what type of civil action could be maintained by the victim, and to determine what the proper measure of damages would be in such a civil action.” Taylor v. State, 295 Ga. App. 689, 691 (2) (673 SE2d 7) (2009) (citation and punctuation omitted). On appeal, the parties have not addressed what type of civil action Brown could have maintained against Jackson and what the appropriate measure of damages would be in such a case. Nor does it appear that the trial court addressed these questions directly. Given that neither party has disputed the proposition that Brown could maintain a civil action against Jackson for financial identity fraud or that lost wages would be an appropriate element of damages in such an action, we have assumed for purposes for this appeal that both of these propositions are true. See Perez v. Atlanta Check Cashers, 302 Ga. App. 864, 868 (692 SE2d 670) (2010) (indicating that an individual would have a cause of action for financial identity fraud); Yarbray v. Southern Bell Tel. & Tel. Co., 261 Ga. 703, 704-705 (1) (409 SE2d 835) (1991) (the tort of invasion of privacy includes “appropriation for the defendant’s advantage, of the plaintiff’s name . . .”) (punctuation and footnote omitted).

       In reaching this conclusion, we note that restitution, like tort law, is designed both to compensate the victim and to deter wrongful conduct. See OCGA § 17-14-10 (a) (5) (in determining the nature and amount of restitution, a trial court must consider, inter alia, “[t]he goal of restitution to the victim and the goal of rehabilitation of the offender”); Amalgamated Transit Union, 263 Ga. at 406 (1) (holding tortfeasors liable for their conduct creates “a strong incentive to prevent the occurrence of the harm”) (citation and punctuation omitted).

       We emphasize that our holding in this case does not mean that a trial court is required to award a victim any or all of his lost wages in a restitution order. Rather, our holding means only that a trial court may properly consider evidence of any lost wages in determining the amount of restitution to be awarded.


author: BARNES, Presiding Judge.

text:
    A15A2113.
    RICHARDSON v. THE STATE.
    (779 SE2d 406)
   BARNES, Presiding Judge.

This is the second appearance of this case before this Court. In the first appeal, we affirmed Corey D. Richardson’s conviction of aggravated child molestation but vacated his sentence and remanded for resentencing. See Richardson v. State, 325 Ga. App. XXVI (Feb. 18, 2014) (unpublished). After the trial court resentenced him, Richardson filed a pro se “Motion to Correct an Illegal and/or Void Sentence,” which the trial court denied, resulting in the present appeal. Richardson contends that the sentence imposed on remand is illegal and/or void as a matter of law because (1) the trial court failed to consider the provisions of OCGA § 17-10-6.2 that address split sentences and deviations from the mandatory minimum sentence for sexual offenses; (2) the trial court imposed a sentence that is cruel and unusual under the Eighth Amendment to the United States Constitution; and (3) the trial court was not the proper venue for the prosecution and lacked jurisdiction in the case. For the reasons discussed below, we affirm.

The record reflects that in September 2008, Richardson was indicted for committing an alleged act of aggravated child molestation between January 1, 2001 and January 31, 2003. In December 2008, Richardson was tried before a jury, convicted, and sentenced for the indicted crime. The trial court imposed a life sentence, requiring Richardson to serve 25 years in prison with the remainder on probation. The life sentence was predicated on OCGA § 16-6-4 (2006) (Ga. L. 2006, p. 379, § 11), the version of the aggravated child molestation statute in effect when Richardson was sentenced.

Richardson appealed his conviction and sentence on several grounds, including that the trial court had sentenced him under the wrong version of the aggravated child molestation statute. In an unpublished opinion, this Court affirmed Richardson’s conviction, but vacated his sentence and remanded for resentencing under OCGA § 16-6-4 (d) (1) (2005) (Ga. L. 1997, p. 1578, § l), the version of the statute in effect when the crime was committed. See Richardson, 325 Ga. App. XXVI.

On remand, the trial court resentenced Richardson to 20 years in prison. Proceeding pro se, Richardson thereafter filed his “Motion to Correct an Illegal and/or Void Sentence.” The trial court denied Richardson’s motion, and this appeal followed.

The General Assembly has established a specific time frame during which a trial court has jurisdiction to freely modify a criminal sentence. Pursuant to OCGA § 17-10-1 (f), a court may correct or reduce a sentence during the year after its imposition, or within 120 days after remittitur following a direct appeal, whichever is later. Once this statutory period expires, a trial court may only modify a void sentence.

Frazier v. State, 302 Ga. App. 346, 347-348 (691 SE2d 247) (2010). See OCGA § 17-10-1 (f); Mack v. State, 323 Ga. App. 821, 822 (748 SE2d 299) (2013).

Richardson filed his motion to correct his sentence within one year of being resentenced, and, therefore, his motion was filed within the statutory period prescribed by OCGA § 17-10-1 (f). Whether to grant a motion to correct a sentence under OCGA § 17-10-1 (f) lies within the discretion of the trial court. Davis v. State, 291 Ga. App. 252, 253 (661 SE2d 872) (2008). So long as the sentence imposed by the court falls within the parameters prescribed by law, we will not disturb it. See Jackson v. State, 238 Ga. App. 559, 560 (2) (520 SE2d 11) (1999); Holland v. State, 232 Ga. App. 284, 285 (2) (501 SE2d 829) (1998). Mindful of these principles, we turn to Richardson’s specific allegations of error.

1. In two related enumerations of error, Richardson contends that his 20-year sentence is illegal and void because the trial court failed to take into account the punishment provisions for sexual offenses imposed by OCGA § 17-10-6.2 when resentencing him on remand. According to Richardson, the trial court should have probated a portion of his sentence in accordance with OCGA § 17-10-6.2 (b) and should have exercised its discretion to deviate from the mandatory minimum sentence pursuant to OCGA § 17-10-6.2 (c). Pretermitting whether aggravated child molestation is a sexual offense to which the punishment provisions of OCGA § 17-10-6.2 apply, we conclude that the trial court did not err in its resentencing of Richardson under the circumstances here.

“A crime must be construed and punished according to the provisions of the law existing at the time of its commission.” (Citation omitted.) Riley v. State, 243 Ga. App. 697, 698 (534 SE2d 437) (2000). See Widner v. State, 280 Ga. 675, 677 (2) (631 SE2d 675) (2006). OCGA § 17-10-6.2 was first enacted in 2006 as part of the same legislation in which the General Assembly modified the punishment provisions related to aggravated child molestation and other sexual crimes. See Ga. L. 2006, p. 379, § 21. Because OCGA § 17-10-6.2 was not in effect when Richardson committed the charged crime, the trial court committed no error in failing to apply its provisions when resentencing Richardson. See Widner, 280 Ga. at 677 (2); Riley, 243 Ga. App. at 698.

2. Richardson also contends that his 20-year sentence for aggravated child molestation is illegal and void because it violates the Eighth Amendment prohibition against cruel and unusual punishment. Relying upon the United States Supreme Court’s decisions in Roper v. Simmons, 543 U. S. 551 (125 SCt 1183, 161 LE2d 1) (2005); Graham v. Florida, 560 U. S. 48 (130 SCt 2011, 176 LE2d 825) (2010); and Miller v. Alabama,_U. S._(132 SCt 2455, 183 LE2d 407) (2012), Richardson contends that his sentence was cruel and unusual because he was a juvenile when he committed the charged offense. We disagree.

In Roper, the Supreme Court held that the Eighth Amendment prohibits capital punishment for juvenile offenders. 543 U. S. at 568 (III) (B). In Graham, the Supreme Court held that a sentence of life without the possibility of parole violates the Eighth Amendment when imposed on juvenile offenders who did not commit homicide. 560 U. S. at 82 (III) (D). In Miller, the Supreme Court extended its ruling in Graham and held that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” 132 SCt at 2469 (II). The Supreme Court in Miller reasoned that “children are constitutionally different from adults for purposes of sentencing. Because juveniles have diminished culpability and greater prospects for reform . .. they are less deserving of the most severe punishments.” (Citation and punctuation omitted; emphasis supplied.) Id. at 2464 (II).

The sentence imposed upon Richardson on remand is distinguishable from the sentences imposed in Roper, Graham, and Miller. In those cases, the Supreme Court was concerned with the imposition upon juvenile offenders of the “most severe punishments” available under the law, namely, the death penalty and life imprisonment without the possibility of parole. Richardson, however, was not subject to one of the “most severe punishments” allowed by law, but rather to a sentence of a definite term of years. Richardson’s constitutional challenge to his sentence predicated on Roper, Graham, and Miller thus is misplaced. See Adams v. State, 288 Ga. 695, 701 (4) (707 SE2d 359) (2011); In the Interest of T. D. J., 325 Ga. App. 786, 789 (2) (a) (755 SE2d 29) (2014); Middleton v. State, 313 Ga. App. 193, 194-195 (721 SE2d 111) (2011).

3. Lastly, Richardson contends that “venue was not proven beyond a reasonable doubt” and that the trial court “did not have personal or subject matter jurisdiction in this case.” But the authority granted to a trial court to correct a sentence pursuant to OCGA § 17-10-1 (f) “does not, on its face, include the power to vacate the conviction on which the sentence is based.” Ellison v. State, 283 Ga. 461 (660 SE2d 373) (2008). And a challenge to venue and to the trial court’s jurisdiction to hear the case is a challenge to the defendant’s underlying conviction rather than to the defendant’s sentence. See Harper v. State, 286 Ga. 216 (686 SE2d 786) (2009) (defendant’s claim that trial court “lacked jurisdiction to hear his case” was challenge to his conviction rather than his sentence); Spargo v. State, 332 Ga. App. 410, 411, n. 2 (773 SE2d 35) (2015) (noting that “[a] motion to vacate void judgment on the basis that the judgment was imposed by a court that was not the proper venue for the prosecution was a challenge to the defendant’s conviction, not his sentence”) (citation omitted); Matherlee v. State, 303 Ga. App. 765, 766, n. 3 (694 SE2d 665) (2010) (defendant’s claim that trial court’s judgment was void for lack of subject matter jurisdiction was challenge to conviction rather than sentence). Consequently, Richardson’s motion to correct his sentence was not the proper procedural vehicle for asserting his claims regarding venue and jurisdiction.

Decided November 6, 2015.

Corey D. Richardson, pro se.

JosephK. Mulholland,.District Attorney, MorufO. Oseni, Michael L. Bankston, Assistant District Attorneys, for appellee.

Judgment affirmed.

Ray and McMillian, JJ., concur.

       Richardson was indicted on two additional counts of aggravated child molestation but was acquitted on those charges.

       OCGA § 16-6-4 (d) (1) (2006) provided in relevant part:
      [A] person convicted of the offense of aggravated child molestation shall he punished hy imprisonment for life or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment, followed hy probation for life, and shall be subject to the sentencing and punishment provisions of Code Sections 17-10-6.1 [punishment for a “serious violent felon/’] and 17-10-7 [recidivists].

       OCGA § 16-6-4 (d) (1) (2005) provided in relevant part:
      A person convicted of the offense of aggravated child molestation shall he punished by imprisonment for not less than ten nor more than 30 years. Any person convicted under this Code section of the offense of aggravated child molestation shall, in addition, be subject to the sentencing and punishment provisions of Code Sections 17-10-6.1 and 17-10-7.

       OCGA § 17-10-1 (f) provides in relevant part:
      Within one year of the date upon which the sentence is imposed, or within 120 days after receipt by the sentencing court of the remittitur upon affirmance of the judgment after direct appeal, whichever is later, the court imposing the sentence has the jurisdiction, power, and authority to correct or reduce the sentence and to suspend or probate all or any part of the sentence imposed.

       OCGA § 17-10-6.2 (b) provides in relevant part:
      Except as provided in subsection (c) of this Code section, and notwithstanding any other provisions of law to the contrary, any person convicted of a sexual offense shall be sentenced to a split sentence which shall include the minimum term of imprisonment specified in the Code section applicable to the offense. No portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court and such sentence shall include, in addition to the mandatory imprisonment, an additional probated sentence of at least one year. . ..

       OCGA § 17-10-6.2 (c) (1) provides:
      In the court’s discretion, the court may deviate from the mandatory minimum sentence as set forth in subsection (b) of this Code section, or any portion thereof, when the prosecuting attorney and the defendant have agreed to a sentence that is below such mandatory minimum or provided that [six additional statutory criteria are met].

       See OCGA § 17-10-6.2 (a) (defining “sexual offense”).

       “[A] claim that a conviction was unlawful must be asserted by a motion for new trial, direct appeal from the judgment of conviction, extraordinary motion for new trial, motion in arrest of judgment, or petition for the writ of habeas corpus.” von Thomas v. State, 293 Ga. 569, 572 (2) (748 SE2d 446) (2013).