author: Branch, Judge. MERCIER, Judge,

text:
    A16A0666.
    GARY v. THE STATE.
    (790 SE2d 150)
   Branch, Judge.

Following a bench trial at which the parties stipulated to the relevant facts, Brandon Lee Gary was convicted of a single count of criminal invasion of privacy, in violation of OCGA § 16-11-62 (2). Gary now appeals from the denial of his motion for a new trial, arguing that the conduct resulting in his conviction does not constitute a violation of the statute under which he was charged. Gary therefore contends that the trial court erred in denying his motion to quash the indictment and in finding that the evidence was sufficient to sustain his conviction. Gary further asserts that although he was not charged with violating OCGA § 16-11-62 (7), the trial court improperly considered the language of that subsection when finding that the evidence supported Gary’s conviction. For reasons explained more fully below, we find that the indictment failed to charge, and the evidence failed to show, that Gary engaged in conduct which constituted a violation of OCGA § 16-11-62 (2). We are therefore required to reverse Gary’s conviction.

In this case, the evidence is uncontroverted, the parties agree as to all relevant facts, and no question exists regarding the credibility of witnesses. Thus, because the appeal presents only a question of law, we review both the appellate record and the trial court’s order de novo. See Burdett v. State, 285 Ga. App. 571, 571 (646 SE2d 748) (2007); Furcal-Peguero v. State, 255 Ga. App. 729, 730 (566 SE2d 320) (2002).

The undisputed facts show that while employed at a Houston County Publix store, Gary aimed his cell phone camera underneath the skirt of the victim and recorded video. Film from the store’s security cameras showed that Gary aimed his camera underneath the victim’s skirt at least four times as the victim walked and shopped in the aisles of the Publix. When questioned by police, Gary admitted to using his cell phone to take video recordings underneath the victim’s skirt as she walked in two separate areas of the store.

A grand jury indicted Gary on a single count of “Unlawful Eavesdropping and Surveillance,” with the indictment alleging that Gary’s admitted conduct “did invade the privacy of the victim.” Although the indictment did not identify the specific statute Gary allegedly violated, the State has always maintained that the indictment charged Gary with violating OCGA § 16-11-62 (2). That statute, which is part of Georgia’s Invasions of Privacy Act (OCGA § 16-11-60 et seq.), makes it illegal for “[a]ny person, through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view[.]” Prior to trial, Gary moved to quash the indictment, arguing that because Gary filmed the victim as she walked and shopped in the aisles of a public store, the victim’s activities were not occurring in a private place, and therefore his conduct did not violate the statute. The trial court rejected that argument and denied the motion to quash, finding that the area of the victim’s body underneath her skirt constituted a “private place” within the meaning of OCGA § 16-11-62 (2).

The case then proceeded to a bench trial, at which the State presented both the facts stipulated to by the parties and video from the store’s security cameras, which showed Gary engaging in the conduct at issue. The trial court denied Gary’s motion for a directed verdict, and in doing so, indicated that the court was reading OCGA § 16-11-62 (2) in conjunction with OCGA § 16-11-62 (7) to find that Gary had committed a criminal invasion of privacy. After referencing subsection (7), the trial court concluded that “there’s no more blatant invasion of privacy than to do what [Gary] did,” found Gary guilty of the charged offense, and entered a judgment of conviction.

Following his conviction, Gary filed a motion for a new trial, again challenging the denial of his motion to quash the indictment and arguing that the evidence failed to show that he had engaged in any conduct which violated OCGA § 16-11-62 (2). The trial court denied that motion, and this appeal followed.

1. Each of Gary’s first four enumerations of error turns on whether OCGA § 16-11-62 (2) criminalizes the conduct at issue. With respect to this question, both the State’s argument and the trial court’s holding focused on two propositions: (i) that Gary’s conduct was patently offensive and (ii) that a woman walking and shopping in a public place has a reasonable expectation of privacy in the area of her body concealed by her clothing. We do not disagree with either of these propositions. Nor do we doubt that a woman whose body is surreptitiously photographed beneath her clothing has suffered an invasion of privacy of some kind. The question before this Court, however, is not whether the defendant’s conduct was offensive; it is not whether a person walking in a public place has a reasonable expectation of privacy as to certain areas of her body; and it is not whether the victim’s privacy was violated. Rather, the only issue presented by this appeal is whether the defendant’s conduct constitutes a criminal invasion of privacy, in violation of OCGA § 16-11-62 (2).

The answer to this question necessarily must begin with the language of OCGA § 16-11-62 (2) itself. See Chan v. Ellis, 296 Ga. 838, 839 (1) (770 SE2d 851) (2015) (“[a] statute draws its meaning, of course, from its text”). And in determining the scope of conduct covered by OCGA § 16-11-62 (2), we presume that “the General Assembly meant what it said and said what it meant.” Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013). To that end, we afford the statutory text “its plain and ordinary meaning,” and we read that text in the “most natural and reasonable way, as an ordinary speaker of the English language would.” Id. at 172-173 (1) (a). See also OCGA § 1-3-1 (b) (“[i]n all interpretations of statutes, the ordinary signification shall be applied to all words”). Moreover, this Court is required to read a particular statute as a whole, considering specific words and phrases not in isolation, but in relation to each other. Warren v. State, 294 Ga. 589, 590 (755 SE2d 171) (2014). Additionally, we must construe criminal statutes “strictly against the State . . . according to the natural and obvious import of their language,” taking care not to extend the application of the law by “subtle and forced interpretations.” Perkins v. State, 277 Ga. 323, 325-326 (2) (588 SE2d 719) (2003) (citation and punctuation omitted). See also Maxwell v. State, 282 Ga. 22, 23 (1) (644 SE2d 822) (2007) (“[a] criminal statute must be construed strictly against criminal liability and, if it is susceptible to more than one reasonable interpretation, the interpretation most favorable to the [accused] must be adopted”) (punctuation and footnote omitted).

As noted above, the statutory provision at issue makes it illegal “to observe, photograph, or record the activities of another which occur in any private place and out of public view [.] ” The dispute in this case centers on how we should read the term “private place.” Specifically, the question is whether, reading OCGA § 16-11-62 as a whole, we may logically read “private place” as including a particular region of a person’s body At the time of Gary’s alleged crime, the Invasions of Privacy Act defined “private place” as “aplace where one is entitled reasonably to expect to be safe from casual or hostile intrusion or surveillance.”OCGA § 16-11-60 (3) (2011) (emphasis supplied). Given the statute’s definition of “private place,” the meaning of that term depends first and foremost on the meaning of “place.”

When looking for the generally understood or common meaning of a particular word, courts most often look to dictionary definitions. See, e.g., Abdel-Samed, v. Dailey, 294 Ga. 758, 763 (2) (755 SE2d 805) (2014); Warren, 294 Ga. at 590-591. The Oxford English Dictionary defines “place” as including a “[r]oom, available space ... Aspace that can be occupied. A particular part or region of space; a physical locality, a locale; a spot, a location.” Compact Oxford English Dictionary, 937 (2d ed. 1991). Webster’s Dictionary likewise defines “place” as including: “Space; room ...[;] A particular area or locality; region [;] the part of space occupied by a person or thing . . . Webster’s New World Dictionary, 1086-1087 (2d College ed. 1972). Both of these dictionaries also include a less-common definition of place relied on by the dissent — i.e., that “place” can be understood to mean “a particular part of a body or surface.”

Given these arguably conflicting definitions of “place,” we must examine the context in which OCGA § 16-11-62 uses the term “private place.” As our Supreme Court has explained, while “[t]he common and customary usages of the words [of the statute] are important, ... so is their context,” Zaldivar v. Prickett, 297 Ga. 589, 591 (1) (774 SE2d 688) (2015) (citation and punctuation omitted), as“[w]ords, like people, are judged by the company they keep.” Hill v. Owens, 292 Ga. 380, 383 (2) (a) (738 SE2d 56) (2013). Thus, in determining the meaning of “private place,” we must read subsection (2) in its entirety and view that subsection in the context of OCGA § 16-11-62 as a whole. See Zaldivar, 297 Ga. at 591 (1). Read in its entirety, subsection (2) prohibits the observation or recording of the activities of a person “which occur in any private place and out of public view[.]” (Emphasis supplied.) The use of the phrase “which occur in” demonstrates that the term “private place” refers to the location of the person being observed or filmed — i.e., the statute refers to a person being observed or filmed while he or she is “in any private place.” OCGA § 16-11-62 (2), therefore, criminalizes certain conduct as to an individual who is in a specific physical location — i.e., a place which is out of public view and in which the individual could reasonably expect to be free from intrusion or surveillance.

Additionally, to understand the context in which “private place” appears, we must look at “other provisions of the same statute.” May v. State, 295 Ga. 388, 391 (761 SE2d 38) (2014) (citation omitted). Here, subsection (2) of OCGA § 16-11-62 is not the only subsection of that statute to employ the term “private place.” Subsection (1) prohibits the clandestine recording or transmission of a “private conversation” originating “in any private place,” while subsection (3) makes it unlawful “to go on or about the premises of another or any private place . . . for the purpose of invading the privacy of others by eavesdropping upon their conversations or secretly observing their activities!)]” (Emphasis supplied.) Given their use of the term “private place,” these additional subsections of OCGA § 16-11-62

especially [must] inform our consideration of what is meant by [“private place”] in subsection [(2)]. After all, “there is a natural presumption that identical words used in different parts of the same act are intended to have the same meaning.” Atlantic Cleaners & [Dyers] Inc. v. United States, 286 U. S. 427, 433 (52 SCt 607, 76 LE 1204) (1932) (citation omitted).

Zaldivar, 297 Ga. at 592 (1). See also Mathis v. Cannon, 276 Ga. 16, 27 (4) (573 SE2d 376) (2002) (criticizing this Court for giving a single word different meanings within the same Code section). Thus, because the term “private place” cannot have one meaning in subsection (2) and have a different, meaning in subsections (1) and (3), our interpretation of that phrase must be one that will make sense when applied in all three of the relevant subsections. To interpret “private place,” as the State asks us to do, as referring to a particular area of the human body, however, would render subsections (1) and (3) of the statute nonsensical. We decline to interpret the statute in this fashion. Instead, we find that the term “private place,” when viewed in context of the statute as a whole, does not refer to a specific area of a person’s body. Rather, that term refers to some physical location, out of public view and in which an individual may reasonably expect to be safe from intrusion or surveillance — i.e., a place in which an individual has a reasonable expectation of privacy.

The foregoing analysis makes clear that OCGA § 16-11-62 (2) does not criminalize the observation or filming of an individual who is in a public place. In arguing for the opposite conclusion, the State fails to address critical statutory language. Specifically, the State’s argument ignores that part of subsection (2) which refers to “activities ... which occur in” a private place. Nor does the State consider the use of the term “private place” in subsections (1) and (3) of the statute. Instead, the State’s brief confines its statutory analysis to the term “private place” as used in subsection (2), and to the somewhat rhetorical question of whether an individual has a reasonable expectation of privacy in the parts of their body concealed by clothing. This limited analysis demonstrates the State’s misunderstanding of the issue on appeal. The central premise of the State’s argument (and the trial court’s holding) is the idea that a person walking and shopping in a public place has a reasonable expectation of privacy that protects her against a stranger secretly making a video recording underneath her skirt. Again, this proposition is eminently reasonable. But we reiterate that whether an individual has a reasonable expectation of privacy in certain areas of his or her body is not the question currently before this Court. And while a law criminalizing such conduct is desirable, the plain and unambiguous language of OCGA § 16-11-62 (2) does not reach that conduct. Instead, that language makes clear that to convict an individual of violating OCGA § 16-11-62 (2), the State must allege and prove both that the accused observed or filmed the activities of the victim, and that those activities were occurring in a location which was out of public view and in which the victim could reasonably expect to be free from intrusion or surveillance. The activity recorded in this case was the victim’s acts of walking and shopping. Given that this activity occurred in a grocery store open to the public, Gary did not record any activities of the victim that were occurring in a private place and out of public view. See Pruitt v. State, 227 Ga. 188, 190-191 (179 SE2d 339) (1971) (“a place open to the public” is not a “private place” within the meaning of the invasion of privacy statute) (construing the predecessor to OCGA § 16-11-60 et seq.).

In light of the foregoing, the indictment in this case failed to allege, and the State failed to prove at trial, a material element of the crime of invasion of privacy, namely that the recorded activities of the victim occurred in a private place and out of public view. Accordingly, we find that the trial court erred both in denying Gary’s motion to quash the indictment and in finding that there was sufficient evidence to convict Gary of violating OCGA § 16-11-62 (2).

2. Given our holding in Division 1, we need not address Gary’s argument as to the trial court’s alleged error in considering the language of OCGA § 16-11-62 (7) when finding Gary guilty of criminal invasion of privacy.

In closing, we note that it is regrettable that no law currently exists which criminalizes Gary’s reprehensible conduct. Unfortunately, there is a gap in Georgia’s criminal statutory scheme, in that our law does not reach all of the disturbing conduct that has been made possible by ever-advancing technology. The remedy for this problem, however, lies with the General Assembly, not with this Court. Both our constitutional system of government and the law of this State prohibit the judicial branch from amending a statute by interpreting its language so as to change the otherwise plain and unambiguous provisions thereof. Richardson v. State, 276 Ga. 639, 640 (1) (581 SE2d 528) (2003). We are therefore constrained to reverse Gary’s conviction.

Judgment reversed.

Doyle, C. J., Andrews, P J., Dillard, Ray and Peterson, JJ., concur. Ellington, P J., Phipps, P J., and Mercier, J., dissent.

MERCIER, Judge,

dissenting.

I respectfully dissent. At issue in this appeal is whether Gary’s videotaping up the victim’s skirt is a criminal invasion of privacy in violation of OCGA § 16-11-62 (2). The majority opinion answers this question in the negative.

OCGA § 16-11-62 (2) provides that it shall be unlawful for “[a]ny person, through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view[.]” At the time the crime was committed, the legislature had defined “private place” as “a place where one is entitled reasonably to expect to be safe from casual or hostile intrusion or surveillance.” OCGA § 16-11-60 (3) (2011).

In construing statutes,

we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.

Deal v. Coleman, 294 Ga. 170, 172-173 (1) (a) (751 SE2d 337) (2013). Where I part ways with the majority is in its evaluation of the commonly accepted meaning of the word “place.”

While it is fitting for the majority to look to dictionary definitions for guidance on the meaning of the word, the majority has relied on only selective portions of definitions to support its analysis. The majority first cites to the Oxford English Dictionary, which pertinently defines “place” when used as a noun as a

[rjoom, available space ... a space that can be occupied; A battlefield; A particular part or region of space; a physical locality, a locale; a spot, a location ... a region or part of the earth’s surface; A piece or plot of land; a holding; A particular part of or location in a book or document; A particular area or spot in or on a larger body, structure, or surface; an area on the skin; A dwelling, a house; a person’s home; A particular spot or area inhabited or frequented by people; a city, a town, a village.

(emphasis supplied).

The majority next turns to Webster’s Dictionary which defines “place” as “Space; room...[;] Aparticular area or locality; region[;] the part of space occupied by a person or thing . I have concerns with the majority’s use of these definitions. While I agree that is certainly one way in which “place” can be used, it is equally clear that “place” may also refer to a part of or location on one’s body. The Oxford English Dictionary includes in its definition of “place,” “[a] particular area or spot in or on a larger body, structure, or surface; an area on the skin.” Merriam-Webster’s Dictionary defines “place” pertinently as “a particular region, center of population, or location; a building, part of a building, or area occupied as a home; a particular part of a surface or body.”

Regardless of what dictionary definition is used, the plain meaning of the word “place” is susceptible to many varied meanings. To read the statute as applying to only one, and one chosen by the judiciary to the exclusion of all others, is troubling. This is particularly true when the definitions are not mutually exclusive, and the statute has no limiting language.

In interpreting statutes we must “presume that the General Assembly meant what it said and said what it meant.” In the Interest of L. T., 325 Ga. App. 590, 591 (754 SE2d 380) (2014) (punctuation omitted). Accordingly, as the word “place” is commonly understood as both a location in which a person may be found and as a part of or location on one’s body, the term “private place,” as used in the statute refers to a physical location or an area of an individual’s body out of public view and in which an individual can reasonably expect to be safe from casual or hostile intrusion or surveillance.

The majority posits next that because this statute makes it unlawful to “observe, photograph, or record the activities of another which occur in any private place and out of public view,” the statute refers to only the actual location of the person being observed or filmed. This conclusion only follows from the majority’s initial determination about the meaning of the term “private place.” Because I read “private place” to refer to a physical location or an area of an individual’s body that is out of public view, then the statute should be read to refer to the location of the activities being filmed. In essence, the statute refers to the filming or observing of the activities of another which are in any private place and out of public view.

Therefore, I would find that the plain and unambiguous language of OCGA § 16-11-62 (2) criminalizes the act of filming up a woman’s skirt without her consent. To convict an individual of violatingOCGA § 16-11-62 (2) requires both that the accused observed or filmed the activities of the victim and that those activities occurred in a location or portion of an individual’s body that were out of public view and in which the victim had a reasonable expectation of privacy The activity recorded in this case was the activity of the private areas of the victim’s body covered by clothing while she walked and shopped. As the victim’s genital area was not exposed to the public, it was out of public view, and the victim had a reasonable expectation of privacy in the area under her skirt. Thus, I would affirm the trial court’s denial of Gary’s motion to quash the indictment and would find that there was sufficient evidence to convict Gary of violating OCGA § 16-11-62 (2).

The majority contends that interpreting “private place” to refer to a particular area of the human body would render subsections (1) and (3) of the statute mere surplusage. This is erroneous, as I interpret the term “private place” to refer to physical location or an area of an individual’s body out of public view, which is within the plain meaning of “place.” Both subsections of OCGA § 16-11-62 can still be read in harmony with subsection (2), because they are not mutually exclusive, and there is no contradiction or exclusion.

The majority refers to a “gap in Georgia’s criminal statutory scheme,” yet I would argue that no such gap exists. Rather, the majority has in fact created one by judicial fiat. To interpret the statute to make Gary’s conduct illegal does not restrict or broaden the statute in any way, but merely comports with the common meaning and understanding of the word “place” in the English language. Indeed, “private place” is a phrase heard daily in courts across this state, as judges, prosecutors, defense attorneys, psychologists, detectives, and children, to name only a few, use it to describe incidents of sexual abuse. The majority thus engages in an examination of language as it assumes it to be, as opposed to as it actually is.

Decided July 15, 2016

Reconsideration denied July 28, 2016

Michael A. Rivera, for appellant.

George H. Hartwig III, District Attorney, T. Clifton Woody II, Assistant District Attorney, for appellee.

We have decades of Fourth Amendment jurisprudence setting forth limitations on law enforcement’s ability to merely pat down an alleged suspect on top of their clothing to protect the sacrosanct bodily privacy of even those who are accused of violating criminal laws. But today, with the stroke of a pen, we are in effect negating the privacy protections from the intrusions of fellow citizens afforded to every person in this State because one definition of “place” is afforded more weight than another.

For these reasons I respectfully dissent.

I am authorized to state that Presiding Judge Ellington and Presiding Judge Phipps join in this dissent.

       That statutory subsection provides that it shall be illegal “to commit any other acts of a nature similar to those set out in paragraphs (1) through (6) of this Code section which invade the privacy of another.” OCGA § 16-11-62 (7).

       Following Gary’s indictment, the General Assembly amended the Invasions of Privacy Act, and the statute currently defines “private place” as “a place where there is a reasonable expectation of privacy.” OCGA § 16-11-60 (3) (2015) (emphasis supplied).

       Neither the State’s argument nor the trial court’s holding addresses the statute’s reference to “activities.” Specifically, neither the trial court’s ruling nor the State’s brief identify any activities that were occurring underneath the victim’s skirt and that were captured on Gary’s surreptitious video. We note, however, that the record contains no evidence of any such activities.

       In its brief, the State describes the recorded activities as the victim “getting some milk” and “getting an item off the shelf.”

       Notably, the State does not dispute the fact that the victim was filmed while in a public place, acknowledging that “Publix was open to the public.”

       The type of conduct in which Gary engaged is so prevalent that it has earned a name: “upskirting.” See Zeronda, Street Shootings: Covert Photography and Public Privacy, 63 Vand. L. Rev. 1131, 1132-1133 (2010) (“upskirt photography involves taking pictures of women up their skirts”); Horstmann, Protecting Traditional Privacy Rights in a Brave New Digital World: The Threat Posed by Cellular Phone-Cameras and What States Should Do to Stop It, 111 Penn. St. L. Rev. 739, 739 n. 1 (“ ‘[ujpskirting’ generally refers to the practice of taking unwanted pictures up a woman’s skirt or dress”). Recognizing that existing criminal statutes do not generally reach this conduct, several jurisdictions have enacted voyeurism statutes, which criminalize the photographing or filming of private areas of an individual’s body without that individual’s consent and “under circumstances in which the individual has a reasonable expectation of privacy!.]” 18 USC § 1801 (West) (the “Video VoyeurismAct”). See also N.Y. Penal Law § 250.45 (McKinney) (punishing such conduct as unlawful surveillance in the second degree); Cal. Penal Code § 647 (j) (2) (West) (defining the crime of disorderly conduct to include acts such as those committed by Gary).

       Oxford English Dictionary Third Edition, June 2006, accessed July 12, 2016 (http://www. oed.com/view/Entry/144864?rskey=hpIYuI&result=l#eid).

       The subsections read in relevant part:
      It shall be unlawful for: (1) Any person in a clandestine manner intentionally to overhear, transmit, or record or attempt to overhear, transmit, or record the private conversation of another which shall originate in any private place .... (3) Any person to go on or about the premises of another or any private place, except as otherwise provided by law, for the purpose of invading the privacy of others by eavesdropping upon their conversations or secretly observing their activities Í.1
      OCGA § 16-11-62 (1), (3).

       Brief research indicates that across the state of Georgia individuals have been arrested and indicted for the same or similar conduct alleged in this case. Thus, the commonly understood meaning of the phrase “private place” has until today allowed for no gap in our privacy laws. See Atlanta Journal-Constitution “Cops: Man takes pictures up woman’s skirt in Target” (http://www.ajc.com/news/news/local/cops-man-takes-pictures-up-womans-skirt-in-targe-l/nQXrR/); Atlanta Journal-Constitution “Former Milton store worker accused of taking pictures up customers’ skirts” (http://www.ajc.com/news/news/local/former-milton-store-worker-accused-taking-pictures/nqyCS/); Atlanta Journal-Constitution “Police: Pharmacist caught using phone to peer under customer’s skirt” (http://www.ajc.com/news/news/police-pharmacist-caught-using-phone-to-peer-under/ngkCS/); The Brookhaven Post “Brookhaven Police seek man suspected of taking pictures up woman’s skirt at Publix” (http://brookhavenpost.co/brookhaven-police-seek-man-suspected-of-taking-pictures-up-womans-skirt-at-publix/38042/).


source: Caselaw Access Project

author: Rickman, Judge. BOGGS, Judge,

license: Public Domain

text:
    A16A0675.
    RAINEY v. THE STATE.
    (790 SE2d 106)
   Rickman, Judge.

Henry Rainey appeals his conviction for criminal attempt to commit armed robbery. Rainey contends, among other things, that the evidence was insufficient to support his conviction. We agree and reverse.

On appeal, “[w]e view the evidence ... in the light most favorable to the verdict and no longer presume the defendant is innocent. We do not weigh the evidence or decide the witnesses’ credibility but only determine if the evidence is sufficient to sustain the convictions.” (Citation omitted.) Hill v. State, 243 Ga. App. 614 (533 SE2d 779) (2000); see Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

So viewed, the evidence showed that an employee of an auto care store noticed a vehicle with an obscured license plate parked in an unusual location in the parking lot. The employee observed Rainey inside the vehicle talking on his cell phone and wearing a surgical mask. The employee watched Rainey exit his vehicle wearing the mask, a hooded sweatshirt with the hood pulled up, and a hat. He then observed Rainey walking a short distance toward a CVS Pharmacy, which was also near two banks. A manager of the auto care store called 911 and reported his concern that Rainey may rob the store.

ACVS employee saw Rainey come into the store. He testified that Rainey walked around the store for four to five minutes and then inquired about the price of cigarettes, which the employee felt was “strange” because the prices were listed, but also testified that he was never in any fear or danger. The employee testified that Rainey entered the CVS store twice.

A sergeant with the Cherokee County Sheriff’s Office responded to the 911 call and went to the location of Rainey’s vehicle. The sergeant saw Rainey walking toward his vehicle but did not observe him wearing a mask. The sergeant testified that Rainey appeared to throw something inside his vehicle, although he admittedly could not see exactly what Rainey was doing.

Upon questioning from the sergeant, Rainey stated that he was waiting for his daughter. The sergeant observed that Rainey’s license plate was obscured by an insurance bill secured by medical tape, which Rainey speculated may have been taped onto his car by his daughter to remind him to pay his bill. Rainey’s daughter testified that she did not tape the insurance bill on the license plate of the vehicle and that she was not planning on meeting her father.

As the sergeant was questioning him, Rainey offered for the sergeant to “look inside if you want,” to which the sergeant followed up with, “[y]ou don’t mind if I look throughout the vehicle?” and Rainey responded, “No.” The sergeant found a surgical mask, medical tape, and a police scanner in the vehicle. He also located a checkbook on the floor of the vehicle, leaning against the driver’s seat. After searching inside the checkbook, the officer found a note reading, “I have a gun and there is one outside listening to a police scanner so no alarm put $2000.00 in the checkbook and be fast.” A second note was found written on the plastic sleeve of the checkbook, which was essentially the same as the first except that it omitted the language referencing the police scanner. A deputy on the scene thereafter conducted a pat-down search of Rainey, but no weapons were located on him or in his vehicle.

The grand jury returned an indictment charging Rainey with criminal attempt to commit armed robbery and criminal attempt to commit robbery. After a jury trial, Rainey was found guilty of criminal attempt to commit armed robbery. It is from this conviction that Rainey now appeals.

1. Rainey contends that the evidence was insufficient to support his conviction. Specifically, Rainey argues that the evidence showed mere preparation and not a substantial step toward the commission of an armed robbery.

Pursuant to OCGA § 16-4-1, “A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” And OCGA § 16-8-41 (a) provides:

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

Under Georgia law, “[i]n order to constitute the offense of attempt to commit a crime, the accused must do some act towards its commission.” (Punctuation omitted.) Groves v. State, 116 Ga. 516 (42 SE 755) (1902); see OCGA § 16-4-1.

Commission means the act of committing, doing, or performing; the act of perpetrating. Mere acts of preparation, not proximately leading to the consummation of the intended crime, will not suffice to establish an attempt to commit it. . . . Between the preparation for the attempt and the attempt itself there is a wide difference. The preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement towards the commission after the preparations are made. . . . Procuring or loading a gun, or buying poison, or walking to a particular place, with intent to kill another, is not enough to make one guilty of an attempt to commit murder. The same is true of a purchase of coal oil and matches with intent to commit arson, or the procuring of metal and dies with intent to commit the offense of counterfeiting money. These acts are mere preparations, indifferent in their character, and do not advance the conduct of the party far enough to constitute an attempt.

(Citations and punctuation omitted.) Groves, 116 Ga. at 516-517.

In this case, the evidence presented supports a finding that Rainey performed certain acts in preparation for an armed robbery Arguably, it may even support a conviction of criminal attempt to commit robbery. That is not the same, however, as supporting a finding that Rainey took a substantial step toward the commission of an armed robbery See Groves, 116 Ga. at 517.

Rainey’s actions in obscuring his license plate and being in possession of the notes, surgical mask, and police scanner — in the absence of any evidence that he was in possession of a weapon or device having the appearance of a weapon, and in the absence of evidence that he showed anyone the notes — were merely preparatory acts and do not amount to an attempt to commit the crime of armed robbery. See Groves, 116 Ga. at 518 (“We think it manifest that the hiring of the hack, the ascertaining of the fact that the intended victim had no weapons, and the procuring of the false faces for disguise, were merely preparatory acts, and not proximately leading to the consummation of the crime of robbery[.]”); see also Thurman v. State, 295 Ga. App. 616, 619 (1) (673 SE2d 1) (2008) (physical precedent only) (defendants’ possession of materials used in the manufacture of methamphetamine constituted mere preparation to commit the crime); Smith v. State, 156 Ga. App. 695, 696 (275 SE2d 689) (1980) (evidence that the defendant’s girlfriend passed hacksaw blades to him while he was in jail was insufficient to sustain his conviction for attempted escape because while the defendant most likely had an intent to use the blades to escape he had not yet attempted to do so). Compare New v. State, 270 Ga. App. 341, 343-344 (1) (606 SE2d 865) (2004) (evidence was sufficient to support defendant’s conviction for criminal attempt to commit armed robbery where defendant went to a restaurant armed with a BB handgun which resembled a semiautomatic pistol, parked his car in several different locations in the parking lot, watched a group of people standing outside of the restaurant, wore a mask covering his face, and drew his gun when confronted by a police officer).

We find the following cases relied upon by the dissent to be inapposite to the facts before us: Heard v. State, 299 Ga. App. 44, 48 (1) (681 SE2d 701) (2009) (affirming a conviction for criminal attempt to commit robbery — not attempt to commit armed robbery — based upon the defendant suspiciously walking around a bank, moving to enter the bank but abandoning his actions after making eye contact with a police officer, fleeing from the police officer, and possessing in his vehicle a note indicating that he was going to commit a robbery); Evans v. State, 216 Ga. App. 21 (1) (453 SE2d 100) (1995) (affirming a conviction for criminal attempt to enter an automobile where the defendants discussed the theft of a car stereo, possessed the tools to commit the theft, and drove to a parking lot to commit the theft); Adams v. State, 178 Ga. App. 261, 262-264 (2) (a), (b) (342 SE2d 747) (1986) (affirming a criminal attempt to commit armed robbery conviction where the defendants previously discussed committing the armed robbery, drove to a hotel to commit the armed robbery, agreed to rob someone when they arrived at the hotel, and were armed with handguns); New, 270 Ga. App. at 343-344 (1) (discussed supra).

While we agree with the dissent, citing Prins v. State, 246 Ga. App. 585 (1) (539 SE2d 236) (2000), that the presence of a weapon is not required in order to sustain a conviction of armed robbery, we disagree that, in this case, the presence of a weapon could be inferred. In Prins, the defendant handed a bank teller a note demanding that she put money in a bag or he would kill her, all while concealing one of his hands. Id. at 586-587 (1). In affirming Prins’ conviction, this Court held that, “threatening to shoot a victim while keeping a hand concealed shows the weapon element of armed robbery” Id. at 587 (1). In this case, on the other hand, there is no evidence that Rainey gave the notes to anyone or concealed his hands in any way as if to hide a weapon. Furthermore, although certain auto care store employees were alarmed by Rainey’s conduct, the CVS employee testified that he was never in fear of Rainey or otherwise felt as though he was in danger. And as noted above, neither the auto care store nor any of its employees was named a victim in the indictment.

Accordingly, we conclude there was insufficient evidence to support the jury’s verdict of guilty on the charge of criminal attempt to commit armed robbery. See Groves, 116 Ga. at 518; see also Thurman, 295 Ga. App. at 619 (1) (physical precedent only); Smith, 156 Ga. App. at 696.

2. Because of our ruling in Division 1, we need not address Rainey’s remaining arguments.

Judgment reversed.

Barnes, P. J., Miller, P. J., Ellington, P J., McFadden and Mercier, JJ., concur. McMillian, J., concurs fully and in judgment only as to footnote 7. Boggs and Branch, JJ., dissent.

BOGGS, Judge,

dissenting.

Because the evidence was sufficient to permit the jury to conclude that Rainey took substantial steps toward the commission of an armed robbery, and because no other enumeration of error warrants reversal, I respectfully dissent.

1. Rainey first attracted the attention of a mechanic at the auto shop and his foreman because he parked in a remote area of the business’ parking lot, near the adjacent drug store. After moving to a vantage point behind tinted glass windows, they were able to see that Rainey’s license plate was covered up with a piece of paper, that he appeared to be wearing a mask, and that he was behaving in a “suspicious” manner, talking on his cell phone and constantly “looking around, looking over his shoulder seeing if there was anybody there.” When Rainey got out of his car, they saw that he was indeed wearing a mask, as well as a hooded sweatshirt with the hood up and a hat. Rainey began pacing and “walking aimlessly,” “acting erratically,” walking through bushes up a slope and around the back of the drug store. Both the mechanic and foreman testified that they believed Rainey might be trying to rob the shop; one of the employees called the police and the foreman armed himself, believing that a robbery was imminent.

The first sheriff’s deputy to arrive entered the auto shop and spoke with the manager. He and the second deputy, who arrived a few minutes later, entered the drug store and found no person wearing a mask, but saw Rainey standing outside the front door. Rainey began to walk “in a faster way than a normal person would walk,” through shrubbery and down an embankment toward the auto shop. When Rainey reached his car, the first deputy approached him and observed him “throw or toss something inside of the vehicle” through the open window.

The deputies engaged Rainey in conversation, and he told them that he was waiting for his daughter; she, however, testified and denied this. When his attention was called to the insurance bill taped over his license plate, Rainey stated that his daughter must have done it to remind him to pay the bill; she denied this as well. Rainey then invited the deputies to “look inside if you want,” and the first deputy responded, “You don’t mind if I look throughout the vehicle?” and Rainey answered, “No.” In addition to a working police scanner concealed by a towel on Rainey’s car seat, a roll of tape which matched that used to cover the license plate, and a mask “kind of between the passenger seat and the center console,” the deputy discovered a checkbook lying on the floor, leaning up against the driver’s seat. It contained not one but two robbery notes, one written on the outside cover of the checkbook register and one on the clear plastic sleeve of the checkbook. Both notes stated that Rainey had a gun, and one further stated, “there is one outside listening to a police scanner.”

This evidence authorized the jury to conclude that Rainey’s conduct went beyond mere preparation and constituted a substantial step toward committing an armed robbery.

To constitute an attempt there must be an act done in pursuance of the intent, and more or less directly tending to the commission of the crime. In general, the act must be inexplicable as a lawful act, and must be more than mere preparation. Yet it can not accurately be said that no preparations can amount to an attempt. It is a question of degree, and depends upon the circumstances of each case. The fact that further steps must be taken before the crime can be completed does not preclude such a finding that the steps already undertaken are substantial.

(Citations, punctuation and footnote omitted.) Heard v. State, 299 Ga. App. 44, 48 (1) (681 SE2d 701) (2009). In Heard, we affirmed a conviction for attempted robbery after a sheriff’s deputy noticed Heard and another man standing outside a bank and observed that both were wearing hats although it was a warm day, and Heard had his hat pulled down “abnormally low,” id. at 48 (1), and that both avoided eye contact. Id. at 45. When the officer attempted to speak with Heard and his companion, they avoided him and then fled in a vehicle but were quickly apprehended. Id. at 45-46 (1). A search of the vehicle revealed a hat, a ski mask, gloves, a bandanna, sunglasses, and a robbery note. Id. at 46-47 (1). We rejected Heard’s argument that his conduct constituted mere preparation, observing:

Here, the evidence supports the jury’s conclusion that Heard took substantial steps toward the commission of robbery He wore a hat pulled abnormally low over his head, he scouted the bank, he moved to enter the bank but diverted his steps at the last minute, and a note indicating a bank robbery was going to occur was found in the car Heard drove. The fact that further steps needed to be taken before the crime could be completed does not preclude a finding that Heard took a substantial step toward committing a robbery It was within the jury’s province to conclude that but for the presence of the officer, Heard would have committed a bank robbery

Id. at 48 (1). Similarly, in Evans v. State, 216 Ga. App. 21 (1) (453 SE2d 100) (1995), the appellants drove slowly around several parking lots looking for a car to enter, and had burglary tools in their possession, but left the scene without breaking into a car because they noticed that they were being followed. Id. at 21-22 (1). The appellants contended that there was insufficient evidence that they took a substantial step to enter an automobile, but we rejected that argument, noting:

[The appellants’] discussion regarding the theft of a car stereo and their possession of tools to aid in the commission of such a theft, without more, would not have amounted to an attempt to enter an automobile, but merely would have been preparatory acts not proximately leading to the consummation of the crime of entering an automobile. [The appellants], however, went beyond these remote acts of preparation when they drove to the shopping center parking lots in search of a specific car to enter.

Id. at 22 (1). See also Adams v. State, 178 Ga. App. 261 (342 SE2d 747) (1986), in which we observed:

The “substantial step” language of OCGA § 16-4-1 shifts the emphasis from what remains to be done to what the actor has already done. The fact that further steps must be taken before the crime can be completed does not preclude such a finding that the steps already undertaken are substantial. In addition to assuring firmness of criminal purpose, the requirement of a substantial step will remove very remote preparatory acts from the ambit of attempt liability and the relatively stringent sanctions imposed for attempts.

(Emphasis in original.) Id. at 263 (2) (b). In Adams, the appellant and his co-defendants drove a considerable distance to the hotel where they planned to commit a robbery. Id. However, they were stopped by police while they were driving around the hotel parking lot. Id. The appellant fled and was apprehended; police discovered that he was armed with a handgun and had two stocking caps on his head, one with holes cut in it for his eyes, nose, and mouth. Id. We concluded that the appellant’s actions were “inexplicable under the circumstances as a lawful act and are more than mere preparation,” and that the jury was authorized to find that substantial steps had been taken toward the commission of armed robbery Id. at 263-264 (2) (b).

In New v. State, 270 Ga. App. 341-342 (1) (606 SE2d 865) (2004), distinguished by the majority, the facts are generally similar to those shown here. New was observed in a business parking lot moving his car around in an unusual fashion, surreptitiously watching bystanders, and wearing a mask. Id. at 341 (1). The only distinguishing factor is that New was found in possession of a BB gun, while no weapon was found in Rainey’s possession. Id. at 342 (1). But the absence of a weapon is not dispositive. In Prins v. State, 246 Ga. App. 585, 585 (1) (539 SE2d 236) (2000), overruled in part on other grounds, Miller v. State, 285 Ga. 285, 287, n. 1 (676 SE2d 173) (2009), we affirmed Prins’ conviction for armed robbery even though no weapon was seen or found. Prins walked to a bank window and handed the teller a note reading, “I have a gun Put 100 50 20 in bag I will kill you I have nothing to lose.” Prins, supra, 246 Ga. App. at 585 (1). While he did not take any action to indicate that he was holding a weapon, one of his hands was not visible to the teller. Id. at 586 (1). We noted that for an armed robbery conviction, only “some evidence from which the presence of a weapon may be inferred” is required. (Citations omitted.) Id. “Furthermore, the question is whether the defendant’s acts created a reasonable apprehension on the part of the victim that an offensive weapon was being used, regardless of whether the victim actually saw the weapon.” (Citations and punctuation omitted.) Id.

Since the commission of armed robbery does not require the presence of an actual weapon, but only evidence from which a weapon’s presence may be inferred, the notes discovered in Rainey’s checkbook, taken in combination with the other behavior observed, could be considered by the jury as a substantial step toward the commission of an armed robbery.

All our decisions on this issue reiterate that it is not our province to decide when or whether “mere preparation” becomes a “substantial step” constituting criminal attempt; that decision is for the jury. Here, the jury was authorized to conclude that Rainey’s conduct, which was alarming enough to cause the foreman at the auto repair shop to arm himself and have an employee call the police, taken in combination with the notes, was sufficient to constitute a substantial step toward commission of an armed robbery The jury could have concluded that Rainey had the checkbook with the robbery notes on his person when he entered the CVS to scout or to rob it, but that he noticed the arrival of law enforcement at the auto repair shop, whereupon he left the CVS, took a circuitous route back to his vehicle, and tossed the checkbook into his car. In other words, “but for the presence of the officer [s], [Rainey] would have committed [an armed] robbery.” Heard, supra, 299 Ga. App. at 48 (1). The evidence was sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), and we should affirm.

2. Additionally, for the reasons stated below, I do not believe that either of Rainey’s remaining enumerations of error warrants reversal. Rainey asserts two instances of ineffective assistance of trial counsel: (a) failure to file a motion to suppress the evidence obtained in the search of his car; and (b) failure to object to testimony by a sheriff’s investigator that he contends went to the ultimate issue of the case.

In reviewing a claim of ineffective assistance,

[ujnder the two-part test established in Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984), [Rainey] must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different, if not for the deficient performance. If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong.

(Citations and punctuation omitted.) Harrison v. State, 313 Ga. App. 861, 865 (3) (722 SE2d 774) (2012).

As a general rule, reasonable trial tactics and strategies do not amount to ineffective assistance of counsel. The decisions on which witnesses to call and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his or her client. Whether an attorney’s trial tactics were reasonable is a question of law, not fact. When assessing the reasonableness of counsel’s actions, a court must evaluate counsel’s performance from his or her perspective at the time of trial. This Court reviews a trial court’s ruling on an ineffective assistance claim on appeal by accepting the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. [Cits.]

Hughley v. State, 330 Ga. App. 786, 791 (4) (769 SE2d 537) (2015).

(a) Rainey first complains that trial counsel was ineffective in failing to file a motion to suppress the items found in the search of his vehicle.

Ordinarily, on the appeal of a trial court’s ruling on a motion to suppress, the burden is on the State to show that the scope of an appellant’s consent to search was not exceeded. State v. Long, 232 Ga. App. 445, 445-446 (502 SE2d 298) (1998). But when counsel is alleged to be ineffective due to failure to file a motion to suppress, the appellant must make a “strong showing” that the motion would have been granted. Millsap v. State, 275 Ga. App. 732, 736 (3) (c) (621 SE2d 837) (2005). And “we defer to the trial court’s findings of facts in reviewing its ruling on an ineffective assistance of counsel claim unless they are clearly erroneous, and the ‘clearly erroneous’ test is the same as the ‘any evidence rule.’ [Cits.]” Gravitt v. State, 301 Ga. App. 131, 133-134 (1) (687 SE2d 150) (2009).

One of the deputies testified to his conversation with Rainey as follows:

Q. What, if anything, did he say?
A. He offered to let me look inside the vehicle.
Q. And how did he do that? . . . what did he say?
A. I believe his exact words were, “You can look inside if you want.’’And I replied to him, ‘You don’t mind if I look throughout the vehicle?” Which he replied, “No.”

We have held that, without more, consent to “look inside” a vehicle may not be arbitrarily expanded in scope to include a full-scale search of the interior and the contents of any containers. See, e.g., State v. Diaz, 191 Ga. App. 830, 832 (2) (383 SE2d 195) (1989). But here, the first deputy specifically followed up Rainey’s offer with a request to “look throughout the vehicle,” and Rainey agreed. Moreover, the second deputy specifically testified that Rainey gave consent to a search:

Q. Did you hear Mr. Rainey give [the first deputy] permission to search his vehicle?
A. Yes, he did.

No testimony or evidence at the hearing on the motion for new trial contradicted the deputies’ testimony, and the trial court found that Rainey “consented to a search of the car.” We cannot say that the trial court’s ruling is clearly erroneous because it is supported by some evidence. See Benike v. State, 240 Ga. App. 400, 401 (523 SE2d 622) (1999). And “[i]t is not ineffective assistance of counsel to refrain from making a futile motion or filing a meritless motion to suppress.” (Citations and punctuation omitted.) King v. State, 287 Ga. App. 375, 377 (2) (a) (651 SE2d 496) (2007).

(b) Rainey’s second claim of ineffective assistance is that trial counsel was ineffective for failing to object to the testimony of a sheriff’s investigator going to the ultimate issue in the case. “Ordinarily, a witness may not express his opinion as to an ultimate fact, because to do so would invade the province of the jury” (Citation and punctuation omitted.) Batten v. State, 295 Ga. 442, 445 (3) (a) (761 SE2d 70) (2014). Here, the investigator testified on direct examination:

Q. What did you arrest Mr. Rainey for?
A. Criminal Attempt of Armed Robbery
Q. And why was it that you arrested him for Criminal Attempt to Commit Armed Robbery?
A. Based on the evidence that I could see at the scene it appeared to me that Mr. Rainey had taken steps towards carrying out an Armed Robbery that day.

The contention that this testimony went to the ultimate issue is without merit. In Oliphant v. State, 295 Ga. 597, 600 (2) (a) (759 SE2d 821) (2014), the appellant claimed that his counsel should have objected to playing for the jury a portion of his videotaped police interview, in which a police officer explained to him why he could be charged as a party to the crime. He contended that

the officer’s statements constituted an improper opinion on the ultimate issue of [his] guilt as an accomplice. We disagree, because here the officer was clearly not offering opinion testimony on the ultimate issue but was merely informing [the appellant] as to the probable cause for his arrest. Counsel’s failure to object to this [testimony] does not constitute deficient performance. [Cit.]

Id. Similarly, in Batten, supra, a detective testified “identifying appellant as the person who [he] arrested for committing this murder.” (Punctuation omitted.) 295 Ga. at 444 (2). Our Supreme Court held that the appellant did not meet his heavy burden to show ineffectiveness on the basis of counsel’s failure to object to this testimony, concluding that the testimony was “without consequence” because “[t]he jury could reasonably infer appellant, who was on trial for shooting the victim, was arrested for that crime.” Id. at 445 (3). Similarly, the jury could infer that Rainey was arrested for the crime for which he was on trial, and the witness was not testifying to the ultimate issue of Rainey’s guilt but to why he arrested him; in other words, the “probable cause for his arrest.” Oliphant, supra, 295 Ga. at 600 (2) (a).

Decided July 13, 2016

Reconsideration denied July 28, 2016

Zell & Zell, Rodney S. Zell, for appellant.

Shannon G. Wallace, District Attorney, Cliff Head, Assistant District Attorney, for appellee.

Moreover, at the hearing on the motion for new trial, trial counsel testified that the witness “said [Rainey] had taken steps. He didn’t say substantial steps. If he had said substantial, I guess I would have jumped up.” “[T]rial counsel was not ineffective where he articulated a valid strategic reason for not objecting to . . . evidence.” (Citation omitted.) Adams v. State, 276 Ga. App. 319, 324 (6) (a) (623 SE2d 525) (2005). Here, even assuming that the testimony was objectionable, the “strategic decision not to object to this testimony was not so patently unreasonable that it amounted to deficient performance.” Silvey v. State, 335 Ga. App. 383, 397 (3) (b) (iii) (780 SE2d 708) (2015). And while trial counsel agreed with Rainey’s appellate counsel at the hearing on the motion for new trial that he “should have objected sooner, perhaps sooner,” it is well established “that hindsight has no place in an assessment of the performance of trial counsel, and a lawyer second-guessing his own performance with the benefit of hindsight has no significance for an ineffective assistance of counsel claim.” (Citation and punctuation omitted.) Shaw v. State, 292 Ga. 871, 876 (3) (a) (742 SE2d 707) (2013).

For these reasons, I respectfully dissent.

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

       Neither the auto care store nor any employee thereof is named a victim in the indictment.

       One employee purportedly retrieved his weapon because the situation made him feel “uncomfortable.”

       See OCGA § 16-8-40 (a); see also Heard v. State, 299 Ga. App. 44, 48 (1) (681 SE2d 701) (2009).

       Overruled in part on other grounds by Miller v. State, 285 Ga. 285, 287, n. 1 (676 SE2d 173) (2009).

       CVS is a named victim in the indictment.

       For reasons unexplained by the record, Rainey filed a motion for new trial on September 27, 2012, but the hearing on his motion was not held until August 11, 2015.

       Specifically, we need not address Rainey’s argument that his trial counsel rendered ineffective assistance by failing to move to suppress the physical evidence found in Rainey’s vehicle. We note, however, that the sergeant’s search of the interior of Rainey’s checkbook likely exceeded the scope of Rainey’s consent to “look” inside and/or throughout the vehicle . See State v. Corley, 201 Ga. App. 320, 323 (411 SE2d 324) (1991) (officer exceeded the scope of consent to “look inside” the suspect’s truck when he opened a drawstring bag in the front seat); State v. Diaz, 191 Ga. App. 830, 832 (2) (383 SE2d 195) (1989) (officer exceeded defendant’s consent to “look inside” his vehicle when he searched vehicle and opened a shaving kit); see also State v. Neese, 302 Ga. App. 829, 830-831 (691 SE2d 883) (2010) (physical precedent only) (officer expanded the scope of consent to “check” a backpack when the officer unscrewed a flashlight located inside); Amato v. State, 193 Ga. App. 459, 460 (1) (388 SE2d 54) (1989) (consent to look inside vehicle did not extend to removal of vent cover on the door frame). And because the evidence was insufficient to sustain Rainey’s conviction on criminal attempt to commit armed robbery, Rainey could not be retried on the lesser included offense of criminal attempt to commit robbery. See Levin v. State, 334 Ga. App. 71, 75 (2) (778 SE2d 238) (2015) (“[WJhere a defendant is tried and convicted of a crime, and that conviction is reversed due to insufficient evidence, procedural double jeopardy bars re-prosecution for that same crime and any lesser included crime.”) (citation and punctuation omitted).

       Rainey entered the drug store several times and asked odd questions of the cashier. The manager testified that the store had no record of Rainey as a pharmacy customer.

       The trial court and counsel discussed at some length the lack of proof of a weapon. Ultimately, the jury was presented with a choice between criminal attempt to commit armed robbery and criminal attempt to commit robbery, and decided in favor of armed robbery. Defense counsel briefly argued the absence of a weapon in closing. The jury was correctly charged on armed robbery and robbery, attempt, and abandonment. But Rainey does not argue these issues on appeal.

       To the extent that Rainey asserts that the search of his vehicle was unlawful, he has waived that claim by failing to file a written motion to suppress or to object to the admission of that evidence at trial. Ferrell v. State, 312 Ga. App. 122, 125 (2) (717 SE2d 705) (2011).

       The motion was heard and ruled upon by a successor judge rather than the judge who presided over Rainey’s trial.

       Trial counsel did object shortly afterward, when the witness began to testify in detail to the legal reasons for bringing the charges: “Your Honor, I’m going to object if he’s going to start stating matters of law.”


author: ANDREWS, Presiding Judge.

text:
    A16A1737.
    CHARTER COMMUNICATIONS (DE), INC. et al. v. BERWICK.
    (790 SE2d 120)
   ANDREWS, Presiding Judge.

This appeal is from the denial of the appellants’ motion for summary judgment in an action seeking damages for injuries sustained by the appellee, Cindy Berwick, when she tripped over a television cable that lay across her driveway. We reverse.

Charter Communications ran a television cable across Berwick’s driveway in order to provide cable service to her neighbors. The cable was orange and easily visible during the day, and there was a little slack in it that allowed the cable to move about two feet. At the time of the incident, the cable had been left in place for over 19 months.

On the evening of July 17,2012, Berwick carried a three-by-three foot piece of picture frame glass out to a recycle bin at the street. It was almost midnight, but with her porch lights on and the street lights, she did not think she needed a flashlight. She successfully stepped over the cable with her right foot, but her left foot caught on the cable. The motion stressed the glass pane, which broke in two and severely cut Berwick’s right ankle. Eventually, it was discovered that the falling glass had severed a tendon, which required surgical repair.

Berwick acknowledged she was long aware of the presence of the television cable. She drove across the cable four times each day on average, and walked across it at least once per week.

1. The instant case is similar to Fitzgerald v. Storer Cable Communications, 213 Ga.App. 872 (446 SE2d 755) (1994), which also involved an injury sustained from tripping over a television cable lying across a driveway In Fitzgerald, supra at 873, this Court noted:

This is not a typical slip and fall case where liability is premised on ownership or control of the premises. We must apply traditional negligence principles to the facts. Three elements must be proved to establish liability based on negligence: that the defendant had a legal duty to protect the plaintiff from a foreseeable risk of the alleged harm, that the defendant’s act or omission breached this duty, and that there exists a causal connection between the defendant’s conduct and the alleged injury sufficient to show that the conduct proximately caused the injury

(Citation and punctuation omitted.)

As in Fitzgerald, there is no question that the first two elements are present in the instant case. But “the law is clear that when a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom.” (Citation and punctuation omitted.) Sudduth v. Young, 260 Ga. App. 56, 60 (1) (579 SE2d 7) (2003). Because of Berwick’s long-term actual knowledge of the presence of the cable and her frequent, successful negotiation of that condition, the proximate cause of her injury in this case was her own lack of due care. Fitzgerald, supra at 874. Compare Murphy v. Wometco Cable TV of Fayette County, 223 Ga. App. 640 (478 SE2d 398) (1996). For that reason, the trial court shouldhave granted summary judgment for the appellants.

Decided July 14, 2016

Reconsideration denied July 28, 2016

Drew Eckl & Farnham, Brian W. Johnson, Jason M. Prine, George R. Moody, for appellants.

Berger Law Firm, Bruce Berger; Fried Rogers Goldberg, Joseph A. Fried, for appellee.

2. Berwick’s complaint also alleged negligence per se, based on a county ordinance requiring the cable provider to install lines in such a manner so as to cause the minimum interference with the rights and convenience of property owners and not to cause unreasonable interference with the proper use of streets and public ways. However, even if the appellants violated that county ordinance, “[njegligence per se does not equal liability per se, and [Berwick’s] equal knowledge of the hazard would still entitle [the appellants] to summary judgment.” Norman v. Jones Lang LaSalle Americas, 277 Ga. App. 621, 629 (2) (c) (627 SE2d 382) (2006).

Judgment reversed.

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


author: PHIPPS, Presiding Judge.

text:
    A16A0200.
    BAILEY v. THE STATE.
    (790 SE2d 98)
   PHIPPS, Presiding Judge.

Elmer Lamar Bailey was with his cousin when the vehicle they were traveling in crossed the centerline of a highway, struck an embankment, and overturned. Bailey, who appeared to be the driver of the vehicle, was trapped in the car and seriously injured. After an ambulance took Bailey to the hospital, an investigating officer found a box containing drugs next to the overturned vehicle. As a result, Bailey was charged with possession of methamphetamine, possession of marijuana, and possession of drug-related objects.

Bailey was unconscious when a state trooper arrived at the hospital. The state trooper ordered hospital staff to obtain samples of Bailey’s blood and urine for drug and alcohol testing. Based on the results of those tests and on the accident itself, Bailey was also charged with DUI (per se), DUI (less safe) (combined influence), and failure to maintain lane. The trial court denied Bailey’s motion to suppress the results of the blood and urine tests. After a jury found him guilty of all counts, the trial court entered a judgment of conviction, merging the two DUI counts for purposes of sentencing. The court denied his motion for new trial, and Bailey appeals.

Because Bailey does not raise any issues with respect to his convictions for possession of the drugs and drug-related materials found next to the car or for failure to maintain lane, we do not address those convictions. We reverse the trial court’s order denying Bailey’s motion to suppress, reverse the DUI (per se) conviction, and vacate the DUI (less safe) guilty verdict based on the United States Supreme Court’s opinion in Missouri v. McNeely and the Supreme Court of Georgia’s decision in Williams v. State.

Bailey argues on appeal that the trial court should have suppressed his blood and urine test results because the state did not comply with the implied consent statute and because he was unconscious at the time of testing and unable to give actual consent. We review the trial court’s factual findings in a ruling on a motion to suppress for clear error, but we owe no deference to the trial court’s application of the law to undisputed facts.

In his motion to suppress, Bailey argued that the seizure of samples of his blood and urine was conducted in the absence of a warrant or an exception to the warrant requirement and in violation of the Fourth Amendment and the Georgia Constitution. At the suppression hearing, the state presented testimony from Deputy Beard of the Franklin County Sheriff’s Office, who responded to the scene of the one-car accident, andthen-Trooper Roberts of the Georgia State Patrol, who ordered samples taken of Bailey’s blood and urine at the hospital.

The trial court denied the motion to suppress, finding that Bailey’s bodily fluids were collected as a result of a traffic accident resulting in serious injuries, as defined by OCGA § 40-5-55 (c). The trial court concluded that “in conjunction with a finding of probable cause of the offense of D.U.I. by the investigating officer, [Trooper Roberts] was legally authorized to collect blood and urine from [Baileyl without first placing [Baileyl under arrest per the holding of Snyder v. State.[]”

1. Bailey argues that the state did not comply with Georgia’s implied consent statute because he was not advised of his rights and given an opportunity to refuse testing, as required by the implied consent notice.

OCGA § 40-5-67.1 contains the following language regarding the reading of the implied consent notice:

At the time a chemical test or tests are requested, the arresting officer shall select and read to the person the appropriate implied consent notice from the following: (1) Implied consent notice for suspects under age 21: . . . (2) Implied consent notice for suspects age 21 or over: . . . (3) Implied consent notice for commercial motor vehicle driver suspects: ... If any such notice is used by a law enforcement officer to advise a person of his or her rights regarding the administration of chemical testing, such person shall be deemed to have been properly advised of his or her rights .... Such notice shall be read in its entirety but need not be read exactly so long as the substance of the notice remains unchanged.

While this statute provides no exception for the reading of the implied consent notice, OCGA § 40-5-67.1 must be construed in conjunction with OCGA § 40-5-55.

Under subsection (a) of OCGA § 40-5-55,

. . . any person who operates a motor vehicle . . . shall be deemed to have given consent... to a chemical test or tests of his . . . bodily substances for the purpose of determining the presence of alcohol or any other drug, if arrested [for DUI] or if such person is involved in any traffic accident resulting in serious injuries or fatalities. . . .

Subsection (b) adds that any person who is unconscious shall not be deemed to have withdrawn the consent provided by subsection (a). A “ ‘traffic accident resulting in serious injuries or fatalities’ means any motor vehicle accident in which . . . one or more persons suffered a fractured bone ... or loss of consciousness.”

Here, Trooper Roberts had reasonable grounds to believe that Bailey had operated a motor vehicle, and that while doing so Bailey was involved in a traffic accident resulting in serious injuries. Although it is clear only that Bailey was unconscious at the time the samples were taken and not whether he lost consciousness as a result of the accident, evidence introduced at trial showed that Bailey’s femur was fractured in the accident. Thus, he is deemed to have given consent to testing under the statute, and he did not withdraw this consent by virtue of being unconscious. Reading OCGA § 40-5-55 (b) with OCGA § 40-5-67.1, we find that Trooper Roberts was not required to give the implied consent notice to the unconscious Bailey. We thus reject Bailey’s argument that the state failed to comply with the statute.

2. Bailey also contends that the court must rely on the totality of the circumstances, not just on compliance with the implied consent statute, in showing that there was actual, voluntary consent. Bailey relies on the Supreme Court of Georgia’s recent decision in Williams v. State.

(a) As an initial matter, we reject the state’s argument that Bailey waived the actual consent/Williams issue by failing to raise it prior to the motion for new trial. The state contends that Bailey argued only that the police did not comply with the implied consent statute and did not argue that the consent was not actual and voluntary.

In Williams, the Supreme Court of Georgia held that mere compliance with the statutory implied consent requirements did not equate to actual and voluntary consent so as to be an exception to the constitutional mandate of a warrant. Williams was not decided until March 2015, after Bailey filed his motions to suppress and for new trial but before the new trial hearing. Under the pipeline rule, however, a new rule of criminal procedure will be applied to pending cases, so long as the issue was preserved for appellate review.

“[A] 11 motions to suppress should be governed by OCGA § 17-5-30 ... to the extent possible.” Under that provision, a defendant may move to suppress evidence either because the warrantless search was illegal or, where there was a warrant, on one of three articulated grounds. Either way, “[t]he motion shall be in writing and state facts showing that the search and seizure were unlawful.”

Bailey argued in his motion to suppress that the search and seizure of his blood and urine by Trooper Roberts at the hospital were conducted without a warrant or an exception to the warrant requirement and in violation of the Fourth Amendment. At the suppression hearing, he explained further that he was unconscious at the time of the search and seizure. “The suppression motion must be sufficient to put the State on notice as to the type of search or seizure involved, which witness to bring to the hearing on the motion, and the legal issues to be resolved at that hearing.” The motion filed by Bailey was sufficient to put the state on notice that the seizure of his blood and urine was at issue and that it was necessary to present evidence to justify the warrantless search. Bailey preserved the consent issue and is entitled to rely on Williams because his case was in the pipeline when it was decided.

(b) As the trial court noted and as the state argues, we have previously found constitutional the taking of bodily substances from an unconscious suspect. In Gilliam v. State, which we decided in 2008, we held that a warrantless search and seizure was constitutional where the investigating officer had probable cause to believe that the defendant had been driving while under the influence due to his unsafe act of failing to yield and the smell of alcohol on his breath. Because the defendant was involved in an accident resulting in serious injuries, we affirmed the denial of his motion to suppress the results of his blood tests, even though his blood was drawn while he was unconscious.

In 2013, however, the United States Supreme Court decided McNeely, which held that “while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber [v. California] it does not do so categorically.” In McNeely, a blood sample had been taken from the suspect, despite his refusal to submit to such testing. The Court noted the “advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence offered to establish probable cause is simple.” Where officers can reasonably obtain a warrant without significantly undermining the efficacy of such search, the Fourth Amendment mandates that they do so.

In Williams, the Supreme Court of Georgia found that what McNeely and post-McNeely decisions from other states “seem to indicate is that mere compliance with statutory implied consent requirements does not, per se, equate to actual, and therefore voluntary, consent on the part of the suspect so as to be an exception to the constitutional mandate of a warrant.” The defendant in Williams had submitted to the blood test after the police officer read him the implied consent notice. However, the Court remanded because, “[i]n considering Williams’s motion to suppress, the state court failed to address whether Williams gave actual consent to the procuring and testing of his blood, which would require the determination of the voluntariness of the consent under the totality of the circumstances.”

While Georgia appellate courts have not yet addressed whether Gilliam is still good law in light oí McNeely and Williams, courts from other jurisdictions generally have found that, under McNeely, implied consent of an unconscious suspect is insufficient to satisfy the Fourth Amendment. Those states have concluded that the state must either obtain a warrant or show exigent circumstances for a warrantless search under the totality of the circumstances. “The exigent circumstance doctrine provides that when probable cause has been established to believe that evidence will be removed or destroyed before a warrant can be obtained, a warrantless search and seizure can be justified.”

In a recent decision, Birchfield, v. North Dakota, the United States Supreme Court concluded that the Fourth Amendment allows breath tests, but not blood draws, under the search-incident-to-arrest exception to the warrant requirement. Although none of the petitioners in Birchfield was unconscious, the Court espoused:

It is true that a blood test, unlike a breath test, may be administered to a person who is unconscious (perhaps as a result of a crash) or who is unable to do what is needed to take a breath test due to profound intoxication or injuries. But we have no reason to believe that such situations are common in drunk-driving arrests, and when they arise, the police may apply for a warrant if need be.

In Birchfield, the Court rejected the alternative argument of implied consent, as the state statutes at issue went further than imposing civil penalties and evidentiary consequences on motorists who refused to comply and imposed criminal penalties. Because one of the petitioners had consented to a blood test after a police officer advised him that the law required him to do so, the Court remanded for the state court to reevaluate the voluntariness of his consent under the totality of the circumstances.

We agree with the state that it had probable cause to arrest Bailey for driving under the influence. The record shows that Bailey was involved in a single-car accident, he appeared to have been the driver, and there were no signs of braking before the car hit an embankment and flipped over. The accident took place on a “pretty” day on a clear road. Trooper Roberts had spoken to first responders, who reported that they had smelled the odor of alcohol coming from Bailey. When Trooper Roberts arrived on the scene, Bailey’s cousin (the other occupant of the vehicle) admitted that she and Bailey had been “partying all night,” and a box found next to the car contained syringes and what appeared to be methamphetamine and marijuana.

The state, however, produced no evidence of exigent circumstances. For example, there was no evidence regarding how long the warrant process was expected to take and whether officers could have been seeking a warrant while Bailey was being transported to the hospital. Thus, this could have been the situation imagined by the McNeely Court “in which the warrant process will not significantly increase the delay before the blood test is conducted because an officer can take steps to secure a warrant while the suspect is being transported to a medical facility by another officer.”

In light of McNeely and Williams, Bailey’s implied consent was insufficient to satisfy the Fourth Amendment, and he could not have given actual consent to the search and seizure of his blood and urine, as he was unconscious. To the extent that our decisions in Gilliam, Hillv. State, and Rogers v. State conflict with our Supreme Court’s decision in Williams and the United States Supreme Court’s decision in McNeely on this point, they are disapproved. Because the state failed to demonstrate that exigent circumstances justified the warrantless search, the trial court erred in admitting into evidence the results of Bailey’s blood and urine tests.

In the absence of the blood and urine test results, there is no competent evidence that Bailey operated a vehicle with methamphetamine “present in his blood and urine” as charged in the indictment. Thus, we must reverse Bailey’s conviction for DUI (per se) based on insufficient evidence. Because we reverse based on insufficient evidence, Bailey may not be retried.

3. We must also vacate the guilty verdict on the DUI (less safe) count because the introduction of the blood and urine test results must be considered harmful. “Error of constitutional dimension is harmless only if it can be determined beyond a reasonable doubt that it did not contribute to the jury’s guilty verdict.” In this case, we cannot determine beyond a reasonable doubt that the evidence that Bailey’s blood and urine test results revealed the presence of marijuana, methamphetamines, and opioids did not contribute to the jury’s determination that he was less safe to drive at the time of the accident.

At trial, a witness qualified as an expert in forensic toxicology testified at length regarding the results of the blood and urine testing and her conclusions therefrom. After detailing the amounts present of each drug, she opined:

A: [G] enerally when you see ... the higher level of the parent drug [methamphetamine] and the lower level of the metabolite [amphetamine], you would expect that that person is still experiencing those effects of the parent drug since it suggests a recent dosage. With methamphetamine at higher levels, you can expect that person may be jittery, having some muscle tremors; and in terms of how it affects the central nervous system,... your brain and your reaction, you are going to feel a sense of euphoria . . . very good feelings, very high, and a lot of times that euphoria is so strong that it can be distracting to you, especially if you are driving a car .... You could be distracted by that euphoria which makes it difficult to concentrate on what’s going on on the road if someone were to merge in front of you or a pedestrian step out in the way, something like that.
Q: And what, if any, interplay is there between the levels of methamphetamine and the levels of morphine?
A: So when you have conflicting stimulants and depressants in your system, it’s similar to the analogy of if you give a drunk person coffee to wake them up. It’s that idea of you have two things going on that are giving conflicting signals in your brain at the same time. You can also relate it to if you were driving a car and you had two people yelling different sets of directions at you at the same time. It would be very confusing because your brain wouldn’t know which set of signals to listen to since these drugs are giving complete opposite signals.

Decided July 13, 2016

Reconsideration denied July 29, 2016

David C. Walker, Jeremiah T. Roberts, for appellant.

D. Parks White, District Attorney, Brian J. Atkinson, Assistant District Attorney, for appellee.

Given this expert testimony regarding the effect on driving of the particular combination of drugs detected in Bailey’s blood and urine, we cannot conclude beyond a reasonable doubt that the erroneously admitted evidence did not contribute to the DUI (less safe) guilty verdict.

4. Without the blood and urine test results, the record is devoid of any evidence that tends to show that Bailey was a less safe driver as a result of being under the combined influence of amphetamine, methamphetamine, morphine, and hydrocodone, as alleged in the indictment. The other evidence at trial only showed that Bailey had used one of the drugs alleged (methamphetamine). The state thus failed to prove that Bailey was a less safe driver as the result of the combined use of the four named drugs. The indictment did not put Bailey on notice that he could have been convicted of DUI (less safe) based on the use of methamphetamine only or the combined use of methamphetamine and marijuana. Because our decision is based upon insufficient evidence, Bailey may also not be retried on the DUI (less safe) count.

Judgment reversed in part and vacated in part.

Doyle, C. J., Andrews, P. J., Barnes, P. J., Miller, P J., Ellington, P J., and Dillard, McFadden, Boggs, Ray, Branch, McMillian, Rickman, Mercier, and Peterson, JJ., concur.

       OCGA § 16-13-30 (a).

       OCGA § 16-13-30 (j) (1).

       OCGA § 16-13-32.2.

       OCGA § 40-6-391. According to the indictment, Bailey drove while there was methamphetamine present in his blood and urine.

       OCGA § 40-6-391 (a) (4). Specifically, the state charged that Bailey was under the combined influence of amphetamine, methamphetamine, morphine and hydrocodone to the extent it was less safe for him to drive.

       OCGA § 40-6-48.

       _ U. S._(133 SCt 1552, 185 LE2d 696) (2013).

       296 Ga. 817 (771 SE2d 373) (2015).

        State v. Gauthier, 326 Ga. App. 473, 473-474 (756 SE2d 705) (2014).

       283 Ga. 211 (657 SE2d 834) (2008).

       OCGA § 40-5-67.1 (b) (emphasis supplied).

        Snyder, supra at 214 (finding the two statutes to be in pari materia, i.e., relating to the same subject matter, and that they thus must be construed together).

       OCGA § 40-5-55 (a) (emphasis supplied).

       OCGA § 40-5-55 (b).

       OCGA § 40-5-55 (c).

       See Horne v. State, 318 Ga. App. 484, 488 (3) (733 SE2d 487) (2012) (“[I]n reviewing the denial of a motion to suppress, we consider all the evidence of record, including evidence introduced at trial.”) (citation and punctuation omitted).

       See OCGA § 40-5-55 (a), (c); Cooper v. State, 277 Ga. 282, 285 (III) (587 SE2d 605) (2003).

       See State v. Bass, 273 Ga. App. 540, 543 (1) (615 SE2d 589) (2005).

       Supra.

       Id. at 822-823.

       See id.

        Taylor v. State, 262 Ga. 584, 586 (3) (422 SE2d 430) (1992).

        State v. Slaughter, 252 Ga. 435, 439 (315 SE2d 865) (1984).

       OCGA § 17-5-30 (a).

       OCGA § 17-5-30 (b).

       See Glenn v. State, 288 Ga. 462, 465 (2) (a) (704 SE2d 794) (2010) (citation and punctuation omitted) (finding motion sufficiently put state on notice where motion claimed search warrants were invalid because supporting affidavit contained illegally obtained evidence).

       See id.

       Cf. McClure v. Kemp, 285 Ga. 801, 803 (684 SE2d 255) (2009) (pipeline rule did not apply where defendant failed to file motion to suppress and thus did not preserve suppression issue for appellate review).

       295 Ga. App. 358 (671 SE2d 859) (2008).

       Id. at 359.

       Id. See also Hough v. State, 279 Ga. 711, 713 (1) (a) (620 SE2d 380) (2005) (requiring the state to show that the investigating officer had probable cause to believe that the suspect was driving under the influence in order to proceed under the serious injuries provision of OCGA § 40-5-55 (a)).

       Supra.

       384 U. S. 757 (86 SCt 1826, 16 LE2d 908) (1966).

        McNeely, supra at 1563 (II) (B) (plurality). Justice Kennedy concurred in Parts I, II-A, II-B, and IV only. Id. at 1568.

       Id. at 1556-1557 (I).

       Id. at 1561-1562 (II) (B).

       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.”).

        McNeely, supra at 1561 (II) (B) (majority). See also Birchfield v. North Dakota, 579 U. S. _ (V) (C) (3) (136 SCt 2160, 195 LE2d 560) (2016) (“Nothing prevents the police from seeking a warrant for a blood test when there is sufficient time to do so in the particular circumstances or from relying on the exigent circumstances exception to the warrant requirement when there is not.”).

        Williams, supra at 822.

       Id.

       Id.

        Colorado v. Schaufele, 325 P3d 1060 (Colo. 2014); North Carolina v. Romano, 785 SE2d 168 (N.C. Ct. App. 2016); Pennsylvania v. Myers, 118 A3d 1122, 1130 (Pa. Super. Ct. 2015); Tennessee v. Cates, Case No. E2014-01322-CCA-R30CD, slip op. at 11-14 (Tenn. Crim. App. 2015); Texas v. Ruiz, Case No. 13-13-00507-CR, slip op. at 9-10 (Tex. App. 2015). See also California v. Arredondo, 245 Cal.App.4th 186, 204-206 (Cal. Ct.App. 2016), as modified (finding statutory implied consent could not justify seizure alone but applying good-faith exception to exclusionary rule); Kansas v. Meitler, 347 P3d 670 (Kan. Ct. App. 2015) (although implied consent statute was unconstitutional, good-faith exception to exclusionary rule applied); New Jersey v. Jones, 96 A3d 297 (N.J. Super. Ct. App. Div. 2014) (reversing denial of motion to suppress where trial court used stricter analysis than the totality of the circumstances test and finding that the accident, serious injuries, and hours-long police investigation justified the warrantless blood sample); North Dakota v. Morales, 869 NW2d 417 (N.D. 2015) (finding evidence supported trial court’s finding of exigent circumstances where the defendant was driving a motor vehicle involved in a fatal accident late at night on Thanksgiving).

        Alvarado v. State, 271 Ga. App. 714, 715 (1) (610 SE2d 675) (2005).

       Supra.

       Id. at 136 SCt 2185 (V) (C) (3). The Birchfield Court noted that blood alcohol concentration could also be determined by testing a subject’s urine, which also required the test subject’s cooperation. Id. at 136 SCt 2168 (I), n. 1. Because none of the cases before the Court involved a urine test, the Court did not reach the issue whether the search-incident-to-arrest exception applied. See id.

       Id. at 136 SCt 2172 (III).

       Id. at 136 SCt 2184-2185 (V) (C) (3).

       Id. at 136 SCt 2185-2186 (VI).

       Id. at 136 SCt 2186-2187 (VII).

        McNeely, supra at 1561 (II) (B).

       See Williams, supra (requiring finding of actual consent to satisfy the Fourth Amendment). See also Arredondo, supra at 194 (“[DJefendant was unconscious at the time of the seizure and thus incapable of manifesting consent voluntarily or otherwise.”).

       Supra.

       208 Ga. App. 714, 715 (431 SE2d 471) (1993) (“[I]f a suspect is dead, unconscious, or otherwise incapable of refusing the test the officer lawfully can extract a blood specimen under the aegis of protection of evidence without advising the suspect of his rights concerning intoxicant tests.”) (citations and punctuation omitted).

       163 Ga. App. 641, 643 (1) (295 SE2d 140) (1982) (interpreting former Ga. Code Ann. § 68A-902.1 (a) (4), which only required the arresting officer to advise the suspect of his right to an independent test).

       Supra.

       Supra.

       See Del Mazo v. Sanchez, 186 Ga. App. 120, 128 (366 SE2d 333) (1988) (“In the event of a conflict between decisions of this court. .. and the Supreme Court..., we are bound to follow decisions of the Supreme Court.”) (citing Ga. Const. of 1983, Art. VI, Sec. VI, Par. VI).

       See Cuyuch v. State, 284 Ga. 290, 295 (3) (667 SE2d 85) (2008) (reversal required when inadmissible evidence is the sole basis for conviction). See also Epps v. State, 298 Ga. App. 607, 609 (1) (680 SE2d 636) (2009).

       See Nance v. State, 274 Ga. 311 (553 SE2d 794) (2001).

        Threatt v. State, 240 Ga. App. 592, 597 (1) (524 SE2d 276) (1999) (citation omitted) (reversing DUI conviction where evidence was erroneously admitted in violation of the Fourth Amendment).

       See Smith v. State, 250 Ga. App. 583, 586 (1) (552 SE2d 528) (2001).

       Cf. Bravo v. State, 304 Ga. App. 243, 249-250 (2) (696 SE2d 79) (2010) (finding the improper admission of opinion testimony regarding the defendant’s blood alcohol concentration was reversible error because it was highly probable that the evidence contributed to the guilty verdict).

       Cf. Head v. State, 303 Ga. App. 475, 477 (1) (693 SE2d 845) (2010) (evidence insufficient where there was no evidence that the defendant “was a less safe driver as a res ult of being under the influence of [alprazolam and cocaine]”) (punctuation omitted).

        Power v. State, 231 Ga. App. 335, 337 (1) (499 SE2d 356) (1998).

       See Nance, supra.