text:
    A13A0446.
    FOUTS v. THE STATE.
    (744 SE2d 451)
   Miller, Judge.

Following a jury trial, Michelle Fouts was convicted of vehicular homicide in the first degree (OCGA § 40-6-393 (a)), possession of methamphetamine (OCGA § 16-13-30 (a)), no proof of insurance (former OCGA § 40-6-10 (a) (1)), and operating a motor vehicle without the immediate possession of a driver’s license (OCGA § 40-5-29 (a)). Fouts filed a motion for new trial, which the trial court denied. Fouts appealed, and we remanded for the trial court to consider her claims of ineffective assistance of counsel. Fouts amended her motion for new trial on remand, and the trial court denied her amended motion. This appeal followed. Fouts contends that the indictment was fatally defective with respect to the no proof of insurance count and that the evidence was insufficient to sustain her conviction on this count. Fouts also contends that the trial court erred in charging the jury on the no proof of insurance count and in failing to sua sponte charge the jury on criminal negligence. Additionally, Fouts contends that she received ineffective assistance of counsel. For the reasons that follow, we find that the evidence was insufficient to support the conviction on the no proof of insurance count and, therefore, reverse that conviction. We affirm the convictions on the remaining counts and conclude that Fouts did not receive ineffective assistance of counsel.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury’s verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or judge the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the defendant guilty of the crimes beyond a reasonable doubt in accordance with the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(Citation and punctuation omitted.) Wilson v. State, 318 Ga. App. 37 (733 SE2d 345) (2012).

So viewed, the evidence shows that on April 27, 2005, Fouts was driving a 1987 Dodge Dakota truck along State Route 297 — a two-lane highway. The conditions of the road were excellent, and it was a clear day. As Fouts pulled around a curve, she crossed the centerline and drove in the opposite lane of travel. An oncoming vehicle attempted to avoid Fouts, but the vehicles collided head-on. A Georgia State trooper responded to the scene and found the driver of the other vehicle deceased in his front seat and Fouts lying on the road beside the Dodge pickup. Fouts was receiving emergency medical care and was not verbally responsive.

The responding officer subsequently took an inventory of the Dodge Dakota that Fouts was driving. The officer located Fouts’s purse in the back of the truck and during a search of the purse, found a vial containing a substance that later tested positive for methamphetamine. The officer also found Fouts’s identification card. Inputting the information listed on Fouts’s identification card through the Georgia Crime Information Center, the officer discovered that Fouts had a suspended driver’s license. The officer also ran the tag of the Dodge Dakota and determined that it had been issued to another vehicle. The officer did not find proof of insurance inside'the Dodge Dakota. The officer subsequently discovered that Fouts did not own the Dodge Dakota, as the title to the vehicle was registered in another individual’s name.

The responding officer called the Georgia State Patrol’s Specialized Collision Reconstruction Team (“SCRT”) to investigate the incident. The officers determined that Fouts’s failure to maintain her lane was the sole cause of the collision.

1. Fouts contends that the indictment charging her with no proof of insurance was fatally defective because it was silent as to whether the Department of Revenue’s records indicated that the vehicle had required insurance coverage. Her claim is not properly before this Court.

[A] motion for new trial is ordinarily not the proper method to attack the sufficiency of the indictment. Instead, a claim attacking the legality of an indictment is cognizable in a motion in arrest of judgment or habeas corpus when no demurrer to the indictment is interposed before judgment is entered on the verdict. Otherwise, the claim is improperly before this [Cjourt. [Fouts] has not indicated or cited to any part of the record showing that [she] objected to the indictment in any manner before judgment or that [she] moved to arrest the judgment after conviction. Rather, this challenge to the indictment was raised for the first time in an amendment to the motion for new trial filed [almost four years] after the trial court had entered judgment. Thus, it appears that this claim was not properly raised in the lower court and is not properly before us.

(Citations and punctuation omitted.) Thomas v. State, 314 Ga. App. 124, 125-126 (2) (723 SE2d 5) (2012). Moreover, even if the amended motion for new trial was “deemed the equivalent of a motion in arrest of judgment, a post-trial means by which a defendant may challenge an indictment as one would do in a general demurrer,” the motion in this case was not timely filed because a motion for the arrest of judgment must be filed within the same term of court in which the judgment was rendered. Id. at 126 (2); see also OCGA § 17-9-61 (b). The amended motion in this case was untimely because it was filed almost four years after the term in which judgment was rendered. OCGA § 15-6-3 (16) (C) (Treutlen County Superior Court terms begin on the third Monday in February and August).

2. Fouts also contends that the evidence was insufficient to sustain her conviction for no proof of insurance. We agree.

The indictment in this case charged Fouts with violation of former OCGA § 40-6-10 (a) (1) for operating a motor vehicle without having proof of insurance in her immediate possession. Former OCGA § 40-6-10 (a) (1) provided:

The owner or operator of a motor vehicle for which minimum motor vehicle liability insurance coverage is required . . . shall keep proof or evidence of required minimum insurance coverage in the vehicle at all times during the operation of the vehicle. The owner of a motor vehicle shall provide to any operator of such vehicle proof or evidence of required minimum insurance coverage for the purposes of compliance with this subsection.

(Emphasis supplied.) Additionally, proof of insurance is not required to be inside the vehicle if the Department of Revenue database shows that the required minimum insurance coverage for the vehicle was in effect. OCGA § 40-6-10 (a) (3).

Here, the responding officer testified that he did not find any proof of insurance inside the Dodge Dakota. Although the responding officer indicated that the Dodge Dakota had tags registered to another vehicle, he was still able to run a title check on the vehicle to determine that Fouts did not own the vehicle. The officer did not state that he was unable to verify through the Department of Revenue records whether the Dodge Dakota was insured at the time of the accident. Moreover, the evidence presented established that Fouts was not the owner of the vehicle. The plain language of former OCGA § 40-6-10 (a) (1) required that the owner of the Dodge Dakota provide Fouts with proof of insurance. Indeed, it is the burden of the owner to comply with former OCGA § 40-6-10 (a) (1). Consequently, the evidence was insufficient to establish that Fouts violated former OCGA § 40-6-10 (a) (1), and we reverse her conviction on this count. Since we reverse the conviction for no proof of insurance, we need not address Fouts’s additional complaint about the jury instruction as to that conviction.

3. Fouts contends that even absent a request for a criminal negligence instruction or objection to its omission, the trial court erred in failing to give such an instruction to the jury.

Because [Fouts] neither requested [the criminal negligence] charge nor objected when the trial court failed to give it, we review the failure to give the charge only for plain error. To prove that the failure to give the charge was plain error, [Fouts] must show that a four-pronged test has been met: the omission of the charge was erroneous [;] the error was obvious [;] the omission of the charge likely affected the outcome of the proceedings [;] and the error seriously affected the fairness, integrity or public reputation of judicial proceedings.

(Citations and punctuation omitted.) Anthony v. State, 317 Ga. App. 807, 811-812 (3) (732 SE2d 845) (2012). Moreover, “ft]he only requirement regarding jury charges is that the charges, as given, were correct statements of the law and, as a whole, would not mislead a jury of ordinary intelligence.” (Citation and punctuation omitted.) Corbin v. State, 305 Ga. App. 768, 771 (2) (700 SE2d 868) (2010).

We find no plain error here, because the trial court’s charge, when read and considered as a whole, did not mislead the jury. Notably, the trial court properly charged the jury on first and second degree vehicular homicide, noting that first degree vehicular homicide required reckless driving, while second degree vehicular homicide did not. The trial court also instructed the jury that reckless driving was committed when a person drives any vehicle in reckless disregard for the safety of persons or property. During deliberations, the jury asked for a definition of vehicular homicide in the first and second degrees, and the trial court recharged the jury on first and second degree vehicular homicide, as well as reckless driving. The trial court asked the jurors if they understood the difference between first and second degree vehicular homicide, and the foreperson assured the court that the jury understood the distinction. Considered as a whole, the trial court’s charge made clear to the jury that it could convict Fouts of first degree vehicular homicide only if it found that she drove the vehicle in reckless disregard for the safety of persons or property. Moreover, contrary to Fouts’s argument, the distinction between first and second degree vehicular homicide is not whether the driver acted with criminal negligence; rather, it is the severity of the underlying traffic offense that distinguishes the two offenses. See Abernathy v. State, 191 Ga. App. 350, 351 (2) (381 SE2d 537) (1989). Accordingly, there is no likelihood that the omission of a specific charge on criminal negligence affected the outcome of the trial, and there was no plain error.

4. Fouts contends that trial counsel rendered ineffective assistance and that her attorney on motion for new trial was ineffective in failing to raise the issue.

To establish an ineffective assistance claim, an appellant must show not only that his counsel’s performance was deficient but also that the deficiency so prejudiced him as to create a reasonable probability that but for counsel’s errors, the outcome of the trial would have been different. Failure to satisfy both requirements is fatal to an ineffectiveness claim.

(Footnotes omitted.) Mitchell v. State, 250 Ga. App. 292, 295-296 (2) (551 SE2d 404) (2001). In reviewing an ineffective assistance claim on appeal, “we accept the trial court’s factual findings and credibility determinations unless they are clearly erroneous, while we independently apply the legal principles to the facts.” (Footnote omitted.) Presley v. State, 307 Ga. App. 528, 529 (1) (705 SE2d 870) (2011).

(a) Fouts argues that her trial counsel was ineffective for failing to object to the testimony of two Georgia State troopers — the responding officer and a SORT officer — who both opined that the collision was caused by Fouts’s reckless driving.

“A witness generally is not permitted to express his or her opinion regarding an ultimate issue in the case because to do so would invade the fact-finding province of the jury[.]” (Citations and punctuation omitted.) Medlock v. State, 263 Ga. 246, 248 (3) (430 SE2d 754) (1993). “Expert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves[,] i.e., the conclusion is beyond the ken of the layman.” (Footnote omitted.) Fortner v. Town of Register, 289 Ga. App. 543, 546 (1) (657 SE2d 620) (2008).

It has long been recognized that a police officer with investigative training and experience on automobile collisions is an expert.... Such an officer is an expert even if he is not trained to reconstruct traffic accidents... [and] is allowed to testify about what he observed at the accident scene and to give his conclusions from those observations about what happened (as opposed to which party was at fault).

(Punctuation and footnotes omitted.) Id. at 545 (1). Thus, an investigating officer may testify that one of the drivers was the sole cause of the collision, but he may not opine as to whether the driver was at fault or whether he was negligent. Id. at 546 (1); Strickland v. Stubbs, 218 Ga. App. 279, 281 (4) (459 SE2d 473) (1995).

Pretermitting whether trial counsel erred in failing to object to the troopers’ testimony that the collision was caused by Fouts’s reckless driving, Fouts has failed to demonstrate that any error prejudiced her. “The offense of reckless driving may be committed in a variety of ways, and whether a defendant’s manner of driving under the circumstances demonstrated a reckless disregard for the safety of others is a question that is reserved for the jury.” (Citation omitted.) Bautista v. State, 305 Ga. App. 210, 212 (1) (699 SE2d 392) (2010). There is no dispute that Fouts crossed the centerline and drove into oncoming traffic, providing evidence of her guilt. See Wright v. State, 304 Ga. App. 651, 653 (2) (697 SE2d 296) (2010) (crossing centerline and driving into oncoming traffic near a dangerous intersection was evidence of reckless driving); Morrison v. State, 272 Ga. App. 34, 41 (5) (611 SE2d 720) (2005) (crossing centerline evidence of reckless driving), overruled on other grounds, State v. Slaughter, 289 Ga. 344, 346, n. 4 (711 SE2d 651) (2011). In light of this evidence, Fouts has failed to demonstrate that any deficient performance was so prejudicial to her defense that, but for the deficiency, there was a reasonable probability that the outcome of the trial would have been different. See Fulton v. State, 278 Ga. 58, 63 (8) (597 SE2d 396) (2004). Therefore, Fouts’s claim of ineffectiveness on this ground does not entitle her to relief.

Decided June 14, 2013

James C. Bonner, Jr., Tyler R. Conklin, for appellant.

L. Craig Fraser, District Attorney, Leslie L. Ray, Assistant District Attorney, for appellee.

(b) Fouts also contends that trial counsel was ineffective for failing to request a jury charge on criminal negligence because without the charge, the jury did not understand the difference between first and second degree vehicular homicide.

When a defendant raises an ineffective assistance of counsel claim based on counsel’s failure to request certain jury charges, the defendant must show that there is a reasonable probability that the result of the trial would have been different if the requested charges had been given. See Gathuru v. State, 291 Ga. App. 178, 182 (3) (661 SE2d 233) (2008).

As set forth above in Division 3, the trial court properly charged the jury on first and second degree vehicular homicide, and a charge on criminal negligence would not have helped the jury distinguish the two offenses. Consequently, Fouts cannot show that her trial counsel’s failure to request the charge on criminal negligence fell outside the range of reasonable professional conduct. See Green v. State, 266 Ga. 758, 760 (2) (b) (470 SE2d 884) (1996); Gathuru, supra, 291 Ga. App. at 182 (3). Accordingly, Fouts failed to show that her trial counsel was ineffective on this ground.

(c) Fouts also contends that she received ineffective assistance of counsel from the attorney on motion for new trial because counsel did not raise the ineffectiveness claims set forth above. As discussed above, Fouts did not establish that she was denied effective assistance of trial counsel. Therefore, it follows that counsel on motion for new trial was also not constitutionally ineffective in failing to pursue nonviable claims. See Springs v. Seese, 274 Ga. 659, 662 (4) (558 SE2d 710) (2002).

In sum, the conviction on no proof of insurance is reversed, and the convictions on the remaining counts are affirmed.

Judgment affirmed in part and reversed in part.

Barnes, P. J., concurs. Ray, J., concurs fully as to Divisions 1, 3, and 4, and concurs in judgment only as to Division 2.

       Fouts was also found guilty of driving on the wrong side of the road (OCGA § 40-6-40 (a)); however, the trial court merged this count into the vehicular homicide count for sentencing purposes.

       “Criminal negligence as used in the statutes of this State means... reckless and wanton negligence and of such a character as to show an utter disregard for the safety of others who might reasonably be expected to be injured thereby.” (Punctuation and footnote omitted.) Wilkes v. State, 254 Ga. App. 447, 449-450 (562 SE2d 519) (2002).

       After trial counsel filed the motion for new trial, trial counsel was replaced by another attorney from the Public Defender’s Office. New counsel’s brief in support of Fouts’s motion for new trial did not assert any claims that trial counsel was ineffective. The trial court denied Fouts’s motion for new trial. Appellate counsel was appointed, and Fouts appealed. Upon Fouts’s request, we remanded the case for the trial court to consider her claims that trial counsel was ineffective. See Hung v. State, 282 Ga. 684, 685 (2) (653 SE2d 48) (2007) (remanding to consider ineffectiveness claims raised on appeal because it was the first opportunity to raise such claims where counsel on motion for new trial and trial counsel were from the same public defender’s office). On remand, appellate counsel renewed the motion for new trial to add claims . that trial counsel was ineffective.


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A13A0001.
    JONES v. THE STATE.
    (745 SE2d 1)
   PHIPPS, Presiding Judge.

In this appeal, Jimmy Lee Jones maintains that he is entitled to relief from his child molestation conviction. Additionally, he claims that the trial court erred by denying his motion for the appointment of appellate counsel. For reasons that follow, we affirm the denial of the motion for appellate counsel, and dismiss the remainder of this appeal.

In 1995, in the Superior Court of Clayton County, Jones entered a negotiated guilty plea to a child molestation charge on a multi-count indictment, and the remaining charges against him were dismissed; Jones was granted first offender treatment, pursuant to which no judgment of guilt was entered, and ordered to serve a five-year sentence on probation.

Before the expiration of the probationary period, the state filed a petition for adjudication of guilt and imposition of sentence, alleging that Jones had violated certain probationary terms. After a hearing thereon, the trial court executed an order on August 20, 1997 (which was entered on August 25, 1997), determining that Jones had violated probationary terms, adjudicating Jones guilty of child molestation and sentencing him to imprisonment. On September 19, 1997, Jones filed a notice of appeal; the state moved the trial court to dismiss it on the ground that an appeal from a probation revocation was discretionary pursuant to OCGA § 5-6-35. Jones had not followed said procedures, and the trial court dismissed Jones’s notice of appeal in February 1998.

More than a decade later, on May 31, 2012, Jones, proceeding pro se, filed in the Superior Court of Clayton County a “Motion to Set Aside Void Order Dated August 20th, 1997,” which Jones subtitled, “Petitions — Error Coram Nobis and/or Audita Querela-sic.” Therein, Jones complained that, without counsel, he had been confronted with the probation revocation proceedings that resulted in an order of adjudication of guilt and the imposition of a sentence of imprisonment. Further, Jones pointed out that, at the probation revocation hearing, he had objected to proceeding without appointed counsel. The transcript of the probation revocation hearing shows that the trial court overruled Jones’s objection, explaining that Jones had been afforded an opportunity to have an attorney, that a court administrator had interviewed him, that Jones had refused to talk to the court administrator and had refused to provide him any financial information, and that Jones thus had not complied with the conditions necessary to get a court-appointed attorney. Nevertheless, in his 2012 motion, Jones relied upon a line of cases, represented here by Barnes v. State, in an attempt to support his argument that the cited circumstances warranted his child molestation sentence of imprisonment to be vacated as “void.”

The trial court summarily denied Jones’s 2012 motion, and Jones thereafter filed a motion seeking the appointment of appellate counsel, which the trial court also denied. Jones proceeds pro se in this appeal, challenging these rulings.

1. In several related claims of error, Jones contests the denial of his motion, characterizing his sentence of imprisonment as “void” and citing OCGA § 17-9-4. But as we explain below, Jones’s motion provided no basis to vacate the challenged sentence.

“A sentence is void if the court imposes punishment that the law does not allow.” Jones’s motion did not set forth any argument that the sentence imposed upon him in 1997 for child molestation was not authorized by law. Instead, he complained that he was without counsel during the probation revocation proceedings, which proceedings resulted in the sentence of imprisonment. Looking to the substance of Jones’s claims, Jones’s motion challenged not his sentence, but his conviction.

In Chester v. State the Supreme Court of Georgia held that “OCGA § 17-9-4 allows criminal defendants to challenge their convictions at any time by filing any motion or pleading alleging their conviction is void.” But soon thereafter, in Harper v. State, the Supreme Court of Georgia overruled that holding, concluding that “[a] petition to vacate or modify a judgment of conviction is not an appropriate remedy in a criminal case.” The Court explained that “the only remedy for asserting the right to challenge a judgment of conviction as void under OCGA § 17-9-4 is one of the three statutory procedures”: an extraordinary motion for new trial, under OCGA § 5-5-41; a motion in arrest of judgment, under OCGA § 17-9-61; or a petition for habeas corpus, under OCGA § 9-14-40.

Jones’s motion cannot be construed as any one of such pleadings. That is, “we cannot construe the motion as an extraordinary motion for new trial since that remedy is not available to one who pled guilty.” “[A] motion in arrest of judgment must be filed within the same term of court in which the judgment was entered,” and Jones’s motion was not so filed. And “we cannot construe [Jones’s] claim as a habeas petition because it was filed in the convicting court rather than in the county in which [he] is incarcerated.”

Given the foregoing, “[Jones] was not entitled to file a motion to vacate his criminal conviction and his appeal [therefrom] is subject to dismissal.” Jones’s reliance upon procedurally inapposite cases such as Barnes is misplaced.

2. Jones’s remaining attacks upon his child molestation conviction do not rescue this portion of his appeal from dismissal.

(a) Jones contends that the trial court erred in denying his motion to vacate void order “without giving a written opinion, or citing any authority of law.” Contrary to Jones’s bare assertion on appeal, the summary order (ruling on a motion that Jones was not entitled to file) did not “violate [ ] the rights to access the courts, meaningfully, and equal protection and due process of law.”

(b) Jones’s characterization of his 2012 motion as “Petitions — Error Coram Nobis and/or Audita Querela-sic” is unavailing.

(i) Several decades ago, the Supreme Court of Georgia “established that a writ of error coram nobis is merely the ancient grandfather of an extraordinary motion for new trial based on newly discovered evidence” and thereupon

recommend [ed] to the Bar [and hence, pro se parties] to finally grant this lingering ghost a peaceful rest. Indeed, with the myriad of avenues for post-conviction relief, differing nomenclature for identical modes of procedure merely serves to muddle trial practice and confuse those judges and justices charged with the task of appellate review.

Accordingly, this court recently observed:

[A]s [a petition for writ of error coram nobis] is the ancestor of an extraordinary motion for new trial based on newly discovered evidence, the prerequisites for issuing a writ of error coram nobis or for granting an extraordinary motion for new trial based on newly discovered evidence appear to be identical. Before a court authorizes either, it is generally required that the moving or petitioning party base the pleading on facts which are not part of the record and which could not by due diligence have been discovered at the time of the trial.

The pleading at issue here, Jones’s 2012 motion challenging the child molestation conviction, was not based on facts which were not part of the record and which could not by due diligence have been discovered at the pertinent time; rather, his 2012 motion was grounded on the lack of counsel during the probation revocation proceedings, which unquestionably was known to Jones during the proceedings. “Thus, [Jones] could not properly challenge his [child molestation conviction] under a writ of error coram nobis.”

Moreover, Jones pled guilty to child molestation; and as stated above, an extraordinary motion for new trial is not a remedy available to one who pled guilty.

(ii) Jones’s reference to an “Audita Querela” is unaccompanied by any legal authority that such a writ is a cognizable vehicle for providing him relief from the child molestation conviction. Unsupported, Jones’s reference is unavailing.

(c) Jones asserts that his “1997 notice of appeal is still valid” to directly appeal his child molestation conviction for reason that the “[t]rial court does not have jurisdiction to dismiss a notice of appeal which is properly filed.” While Jones might have timely pursued a challenge to the dismissal of the 1997 notice of appeal, he apparently did not do so. Contrary to his assertion, the 1997 notice of appeal — since dismissed — is ineffective at this juncture to directly appeal his child molestation conviction.

Decided June 17, 2013.

Jimmy L. Jones, pro se.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Frances C. Kuo, Assistant District Attorneys, for appellee.

3. Jones challenges the trial court’s order denying his motion for the appointment of appellate counsel. But his contention is unavailing, given these instructions provided in Rooney v. State:

[A] trial court retains jurisdiction over certain matters including appointment of counsel on appeal. However, an indigent defendant is entitled to representation by counsel only for trial and for the direct appeal from the judgment of conviction and sentence.

Accordingly, the trial court correctly determined that Jones was not entitled to appointed appellate “counsel to pursue either the [Motion to Set Aside Void Order Dated August 20th, 1997] or an appeal from the denial thereof.” The trial court’s order denying Jones’s motion for the appointment of appellate counsel is thus affirmed.

Judgment affirmed in part and appeal dismissed in part.

Ellington, C. J., and Branch, J., concur.

       See OCGA § 42-8-60 et seq.

       See Dean v. State, 177 Ga. App. 123, 124 (1) (338 SE2d 711) (1985) (concluding that the discretionary appeal procedure of OCGA § 5-6-35 (a) (5) is applicable to the revocation of “first offender” probation); see also Freeman v. State, 245 Ga. App. 333 (537 SE2d 763) (2000).

       275 Ga. 499, 502 (2) (570 SE2d 277) (2002) (“Under Shelton, it is now established that absent a knowing and intelligent waiver, no indigent person may be imprisoned for any offense, or sentenced to a probated or suspended prison term, unless he was represented by counsel at his trial.”), citing Alabama v. Shelton, 535 U. S. 654 (122 SCt 1764, 152 LE2d 888) (2002) (holding that the Sixth Amendment right to appointed counsel is triggered when an indigent defendant is given a probated or suspended prison sentence).

       OCGA § 17-9-4 provides: “The judgment of a court having no jurisdiction of the person or subject matter, or void for any other cause, is a mere nullity and may be so held in any court when it becomes material to the interest of the parties to consider it.”

       See State v. Green, 308 Ga. App. 33 (706 SE2d 720) (2011) (noting that appellate review of a trial court’s ruling on a question of law is de novo).

        Rooney v. State, 287 Ga. 1, 2 (2) (690 SE2d 804) (2010) (citation and punctuation omitted).

       See generally Jackson v. State, 238 Ga. App. 559, 560 (2) (520 SE2d 11) (1999) (“So long as the sentence imposed is within the statutory limits, we will not disturb it.”).

       See Williams v. State, 287 Ga. 192, 193-194 (695 SE2d 244) (2010) (noting distinction between challenges to convictions and challenges to sentences); Jones v. State, 278 Ga. 669, 670-671 (604 SE2d 483) (2004) (sentence is void if it imposes punishment that the law does not allow; rulings on pleadings asserting erroneous procedure or unfair treatment are not rulings on whether the sentence is void; inasmuch as the assertions contained in appellant’s post-appeal motion that sought sentence modification did not allege that the sentences imposed were void as outside the statutory range of punishment, appellant was not entitled to a direct appeal from the trial court’s adverse ruling); Coleman v. State, 305 Ga. App. 680 (700 SE2d 668) (2010) (holding that, although appellant had styled his post-conviction pleading as a “Motion to Correct Illegal Sentence” and had characterized therein his sentence as “void,” his claims of error — including the denial of effective assistance of counsel — challenged only the procedures employed in imposing the sentence and did not present a colorable claim of voidness of sentence, which was within the statutory range of punishment); Green, supra at 34-35 (1) (“A claim challenging a conviction and a claim challenging the resulting sentence as void are not the same.”).

       284 Ga. 162 (664 SE2d 220) (2008), overruled in part, Harper v. State, 286 Ga. 216, 217 (1) (686 SE2d 786) (2009).

        Harper, supra (explaining the holding in Chester, supra) (footnote omitted).

       Supra.

       Id. at 218 (1), overruling Chester, which had authorized a defendant to move to have a judgment of conviction declared void pursuant to OCGA § 17-9-4.

        Harper, supra at 217 (1), n. 1.

       See id. at 217 (1); Matherlee v. State, 303 Ga. App. 765, 766 (694 SE2d 665) (2010) (“The only remedy for asserting the right to challenge a judgment of conviction as void under OCGA § 17-9-4 is through one of the statutory procedures set out in OCGA § 5-5-41 (extraordinary motion for new trial), OCGA § 17-9-61 (motion in arrest of judgment), or OCGA § 9-14-40 (petition for habeas corpus).”) (footnote omitted), citing Harper, supra at 217 (1).

        Wright v. State, 277 Ga. 810, 811 (596 SE2d 587) (2004) (footnote omitted).

       Id., citing OCGA § 17-9-61 (b).

       Jones’s motion underlying this appeal was filed in 2012, more than a decade after his child molestation conviction.

        Wright, supra (footnote omitted). At the time he filed his motion, Jones represented that he was then incarcerated at Ware State Prison, Ware County. Notably, in this court, Jones represents that the challenged (child molestation) “conviction in Clayton County was used in Fulton County to Enhance Sentence,” hut see Smith v. State, 234 Ga. 390, 392 (216 SE2d 111) (1975) (holding that a person who is being restrained under sentence of a state court of record must file a habeas corpus petition in the county where he is restrained, and that this rule applies even if the sentence being attacked is not the one being served).

        Harper, supra at 218 (2) (dismissing appeal, where appellant was not entitled to file a motion to vacate his criminal conviction); see Williams, supra (because a motion to correct illegal sentence or conviction is not an appropriate remedy to attack a conviction in a criminal case, appeal is subject to dismissal, where claim is a challenge to criminal conviction); Roberts v. State, 286 Ga. 532 (690 SE2d 150) (2010) (regardless of nomenclature, appellant’s motions sought to set aside or vacate his criminal convictions, but because he was not authorized to seek relief from his criminal convictions pursuant to motions to vacate or correct a void conviction, the appeal was subject to dismissal); Matherlee, supra (dismissing appeal, where appellant was not entitled to file in the trial court a motion to vacate the judgment of conviction on the ground that it was void). Compare Hambrick v. Brannen, 289 Ga. 682 (715 SE2d 89) (2011) (reaching merits of claim that right to counsel was violated during an underlying probation revocation proceeding, where claim had been asserted within a petition for writ of habeas corpus).

       Supra (concerning a direct appeal).

       See Division 1, supra.

        Waye v. State, 239 Ga. 871, 873-874 (1) (238 SE2d 923) (1977); see Harris v. State, 269 Ga. App. 92, 93 (1) (603 SE2d 490) (2004).

        Seabrook v. State, 315 Ga. App. 801, 802 (728 SE2d 322) (2012) (citation omitted).

       See text accompanied by footnote 8.

       See Parris v. State, 232 Ga. 687, 688 (208 SE2d 493) (1974) (noting the inappropriateness of a writ of error coram nohis to challenge a conviction, which challenge claimed that the conviction stemmed from a hearing at which the right to counsel was violated; noting that such a writ lies for an error of fact not apparent on face of the record); Seabrook, supra (holding that defendant could not properly challenge the validity of his plea under a writ of error coram nobis, where his claims — including a violation of the right to counsel — were known to defendant at the time that he entered his plea of guilty).

        Seabrook, supra; see Parris, supra.

       See Division 1, supra.

       See Wright, supra (citing Davis v. State, 274 Ga. 865-866 (561 SE2d 119) (2002) (“One who has entered a plea of guilty cannot move for a new trial, as there was no trial.”) (citation and punctuation omitted)).

       See American Med. Security Group v. Parker, 284 Ga. 102, 103 (2) (663 SE2d 697) (2008) (explaining that a trial court’s order dismissing a properly filed direct appeal is itself subject to a direct appeal, whereas a trial court’s order dismissing an improperly filed direct appeal should be considered an interlocutory order and is not subject to a direct appeal).

       See Pierce v. State, 289 Ga. 893, 894 (1) (717 SE2d 202) (2011) (noting that “a final decision refusing to appoint post-conviction counsel generally is itself directly appealable”).

       Supra.

       Id. at 7 (4) (citations and punctuation omitted).

       Id. (citation omitted); see Orr v. State, 276 Ga. 91, 93 (3) (575 SE2d 444) (2003) (concluding that the trial court did not err when it did not appoint counsel to aid appellant with his motion to void the judgment of conviction, where said motion was not a direct appeal).

       See Rooney, supra; Orr, supra.


author: Ellington, Chief Judge.

text:
    A13A0103.
    KIRCHNER v. THE STATE.
    (744 SE2d 802)
   Ellington, Chief Judge.

A Cherokee County jury convicted Debbie Kirchner of possession of more than one ounce of marijuana, OCGA § 16-13-30 (j) (1), (2) (a felony); possession of less than one ounce of marijuana, OCGA §§ 16-13-30 (j); 16-13-2 (b) (a misdemeanor); tampering with evidence, OCGA § 16-10-94 (a); and contributing to the delinquency of a minor, OCGA § 16-12-1 (b) (1). She appeals from the denial of her motion for new trial, contending that the evidence was insufficient to support her convictions. Because we find this contention to be without merit, we affirm.

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

On the evening of August 4, 2007, a Cherokee County sheriff’s deputy responded to a 911 call from Debbie Kirchner’s next door neighbor, who had complained that some of Kirchner’s visitors had illegally parked their cars in the cul-de-sac she and Kirchner lived on and that the cars were blocking her driveway. Upon arriving at the scene, the officer observed a Chevrolet Camaro parked in the middle of the cul-de-sac with its motor running and a passenger inside, as well as at least four other parked cars. Shortly thereafter, the officer saw two men walk out of Kirchner’s home. One of the men immediately turned around and re-entered Kirchner’s house after seeing the officer, but the other, 20-year-old Kevin Robins, walked toward the idling Camaro. The officer saw that Robins was holding a paper bag tightly in front of him, and, while talking briefly with him, the officer smelled an odor of “real strong marijuana” coming from Robins and convinced him to open the bag and show what was inside. The bag contained a plastic baggie holding about eight ounces of marijuana. The officer placed Robins under arrest and called for backup assistance.

While the officer was waiting for assistance to arrive, Kirchner came outside and asked him what was going on. The officer told her that he was conducting an investigation about the drugs that he had discovered, and Kirchner said that Robins was her son’s friend. Several minutes later, an agent with the Cherokee County MultiAgency Narcotics Squad and another police officer arrived, and the agent interviewed Robins, who said that he had bought the marijuana from Kirchner’s 15-year-old son, D. K., who was still inside the house. The agent then asked Kirchner for her consent to search her house, but Kirchner refused, so the agent told the officers to get everyone out of the house while he obtained a search warrant. The officers called into the house and told everyone to come outside. Ultimately, the two officers detained nine individuals (including Kirchner, D. K., Robins, and Robins’ passenger) in the cul-de-sac to await the return of the agent and the execution of the search warrant.

While waiting, Kirchner repeatedly insisted that she needed to use the bathroom “real bad,” but the officers did not allow her to go back into the house initially because one of them would have to accompany her inside and there were only two officers on site with eight other people to watch. The officers explained that, out of concern for their safety, one of them could not be left alone to watch over that many detainees while the other accompanied Kirchner into the house. Kirchner persisted with her complaint, however, so the officers eventually relented and allowed her to go alone into the house solely to use the bathroom, telling her to come back outside as soon as she was finished. After Kirchner was alone in the house for ten to fifteen minutes, one of the officers went to the door and ordered her to come outside, at which time he saw Kirchner running from one side of the house to the other, toward the kitchen. He heard the sound of dishes being moved around, and then Kirchner came outside. She was panting and out of breath, and she asked the officer if she could sit down to rest.

About an hour after leaving, the agent returned with a search warrant, and he and the officers went inside to execute the warrant; they had the nine detained individuals wait in the living room in the upper portion of the split level house. Both the agent and one of the officers testified that, as soon as they entered the house, they smelled a strong odor that they immediately recognized as marijuana. While searching the upper level of the house, they discovered a plastic baggie containing less than an ounce of marijuana and a pipe containing marijuana residue in a drawer in Kirchner’s bedroom. In the kitchen, the officers observed that the dishwasher had just stopped running and was still steaming. Inside the dishwasher, the officers discovered several baggies that had been washed. The agent testified that some of the baggies contained a substance that, based upon his extensive training and experience in narcotics law enforcement, appeared to be marijuana residue. According to the agent, he did not collect the baggies as evidence to be tested by the crime lab because he knew that, when marijuana gets wet, it develops a toxic mold that is very harmful to humans if inhaled.

In the lower level of the home, the officers found a family room area with an attached bedroom belonging to D. K. The bedroom door was locked, but the officers obtained the key from D. K. Inside the bedroom was a large, locked gun safe that was approximately five feet tall and two to three feet wide and that, according to the agent’s estimation, would have cost between $2,000 and $3,000. The officers brought Kirchner and her son downstairs and asked them for the combination to the lock. After D. K. hesitated, Kirchner told him to unlock the safe, and he complied. Inside the safe, the officers found a 12-gauge shotgun, several plastic baggies containing a total of about 13 ounces of marijuana, bongs and pipes typically used to smoke marijuana, several empty plastic baggies, two scales, two marijuana grinders that are used to remove seeds and stems, and a jar of marijuana seeds from which to grow marijuana plants. According to the agent, Kirchner had no visible reaction or change in her demeanor when she saw what was inside the safe. In addition to the evidence found in the safe, the officers found an issue of High Times magazine, a leaf from a marijuana plant, and a cell phone belonging to D. K. in the bedroom; the cell phone contained pictures of marijuana. The officers also discovered a closet that contained a “grow lamp” that is typically used to grow marijuana and an overturned pot that contained a small amount of damp potting soil. The officers arrested Kirchner and D. K. for, inter alia, possession of marijuana; D. K. was prosecuted as a juvenile.

At Kirchner’s trial, the State called three of the young men who were at her house when the first officer arrived on the day at issue. Kevin Robins, who was arrested after he left Kirchner’s house with a half pound of marijuana, testified that he had been going to the Kirchner’s house to “hang out” and smoke marijuana with D. K. three or four times per week since the Kirchner family moved into the house, usually staying for three or four hours at a time. He had started buying marijuana from D. K. a few months before his arrest. According to Robins, during his visits, there were usually several young people smoking marijuana in the downstairs family room, using the pipes, bongs, and other paraphernalia that the officers found in the safe, and other people sometimes stopped by the house just to buy marijuana from D. K. Robins testified that D. K. had told him that he was growing marijuana. Following his arrest, Robins pled guilty to felony possession of marijuana with intent to distribute. Significantly, during Robins’ guilty plea hearing, when asked if Kirchner would have known that he was smoking marijuana downstairs in her home, Robins responded that it would have been hard for her not to know about it because of the odor of marijuana that was usually present.

Another of the young men, Michael Tyler Lebeouf, who was 18 years old on the day at issue, testified that he went to Kirchner’s house a few times a week to “hang out” with D. K. and their friends and to smoke marijuana in the downstairs family room. According to Lebeouf, there was normally marijuana and smoking paraphernalia, including the bongs and other items later discovered in the safe, sitting around in plain sight and being used in the family room, and there was usually an odor of marijuana in the house. He testified that, based on the large amounts of money and marijuana that D. K. had, he believed that D. K. sold “a lot” of marijuana. He also testified that the marijuana seeds found in the safe belonged to D. K. Lebeouf pled guilty to misdemeanor possession of marijuana, and, during his guilty plea hearing, he testified that Kirchner occasionally came into the downstairs family room while he was there with D. K. and other visitors.

The testimony of Tyler Smith, who was about 18 years old on the day at issue, was consistent with that of Lebeouf regarding the typical atmosphere in Kirchner’s downstairs family room, including the numerous visitors; the marijuana and smoking paraphernalia sitting in plain sight; the open, almost constant smoking of marijuana; D. K.’s regular sales of marijuana to his friends and others; and the pervasive odor of marijuana that resulted from “a pretty good amount of smoking that happened” down there. Smith, who pled guilty to misdemeanor marijuana possession following his arrest that day, testified that D. K. had told him that he was growing marijuana. Smith also testified that Kirchner sometimes came into the downstairs family room to talk to D. K. while people were openly smoking marijuana down there.

Unlike Robins and Lebeouf, however, Smith was actually in the downstairs family room with D. K. and several others when the first officer arrived in the cul-de-sac on the day at issue and, thus, was able to describe what happened before the officers cleared everyone from the house. According to Smith, he and the others were smoking marijuana when one of them looked out the window, saw the officer arresting Robins, and alerted the others. D. K. first appeared to be “shocked,” then he gathered up all of the marijuana and paraphernalia from the family room, went into his bedroom, closed the door, and stayed there for a few minutes before going outside to join his mother and the others.

In addition to this evidence, Kirchner’s neighbor testified that, since the Kirchner family moved next door, there had been a significant, ongoing problem with traffic in the cul-de-sac, usually in the evenings and on the weekends, due to the large volume of people who parked, went into Kirchner’s home for a few minutes, then left, often followed by others who did the same thing. According to the neighbor, she sometimes smelled marijuana when she sat outside her home, and she saw people standing on Kirchner’s back porch and smoking. She also saw D. K. and another person carrying plants that appeared to be marijuana out of Kirchner’s house and onto the back porch. The neighbor also testified that, about three months after the day of the search and arrests at issue here, her husband was standing outside when Kirchner and her family approached and started yelling at him. The neighbor went outside to intervene, telling Kirchner to go inside, “do your drugs, mellow out,” and leave them alone. Kirchner responded, “Well, maybe if you’d come down here and do some of our drugs [,] you’d mellow out.”

Kirchner did not testify at trial, nor did she call any witnesses in her defense, which was based upon the assertion that all of the marijuana found in the safe or elsewhere downstairs belonged exclusively to her son and that she had no control over the drugs or any knowledge about the drug sales or other activities occurring downstairs.

1. On appeal, Kirchner contends that there was insufficient evidence to support her conviction for felony possession of greater than one ounce of marijuana; the conviction was based on the thirteen ounces of marijuana found in her son’s locked gun safe. Specifically, Kirchner argues that the State failed to present sufficient evidence to show that she had exercised dominion and control over those drugs. She argues that, instead, the evidence proved that her son, D. K, had exclusive access to the contents of the safe. For the following reasons, we disagree.

In Georgia, it is unlawful for any person to possess any controlled substance, and possession of controlled substances may be actual or constructive. Although not in actual possession, a person who knowingly has both the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. To prove constructive possession, the State must establish a link between the defendant and the contraband that goes beyond mere spatial proximity.

(Citations and punctuation omitted.) Smoot v. State, 316 Ga. App. 102, 113 (6) (729 SE2d 416) (2012).

(a) First, pretermitting whether D. K. was the only person who knew the combination to the gun safe (a contention asserted by Kirchner but unsupported by evidence), there was still sufficient evidence to support a finding that she was a party to her son’s illegal possession of the felony amount of marijuana found inside the safe. Under OCGA § 16-2-20 (a), “[e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” A person is “concerned in the commission of a crime” under this statute if he or she “[intentionally aids or abets in the commission of the crime[.]” OCGA § 16-2-20 (b) (3). If the defendant is not the actual perpetrator of the crime, his or her mere presence at the scene of the crime is not sufficient evidence to establish that he or she was a party to the crime. Pruitt v. State, 282 Ga. 30, 32 (1) (644 SE2d 837) (2007). Instead, the State must show that the defendant shared a common criminal intent with the actual perpetrator, a fact which the jury may infer from evidence of the defendant’s conduct before, during, and after the crimes. Id.

Here, the evidence showed that, on the day at issue, Kirchner’s son, D. K., was a 15-year-old high school dropout who was working part-time as a busboy at a bar. According to the unrebutted testimony of his friends, D. K. spent most of his time in the downstairs family room of his mother’s house, smoking marijuana and selling it to a regular stream of customers whose cars routinely cluttered the cul-de-sac. To safeguard the contraband, D. K. used a very large gun safe that probably cost between two and three thousand dollars. Further, according to the narcotics agent, when the officers opened the safe and exposed the marijuana, paraphernalia, and shotgun stored therein, Kirchner did not appear to be surprised and, in fact, demonstrated no change in her demeanor at this discovery. In addition, the evidence supported an inference that Kirchner convinced the officers to violate their official protocol and let her enter her house, under the pretense of desperately needing to use the bathroom, so that she could destroy material evidence by gathering several baggies of marijuana and washing them in the dishwasher. Finally, Kirchner’s neighbor testified that, during a confrontation, Kirchner specifically referred to the drugs in her home as “our drugs.”

This evidence was clearly sufficient for the jury to find that Kirchner knowingly allowed her son to possess felony amounts of marijuana in her home and, in fact, assisted him in that ongoing, shared criminal enterprise by, inter alia, purchasing a safe to store and conceal the marijuana, related paraphernalia, and a firearm. As a result, the jury was authorized to conclude that Kirchner was a party to the crime of felony possession of marijuana beyond a reasonable doubt. OCGA § 16-2-20 (a), (b) (3).

(b) Second, regardless of the merits of Kirchner’s contention that she had no actual knowledge of her son’s illegal activities, the evidence still supports a finding that she deliberately ignored the multiple, blatant signs of such activities and, thus, is deemed to have the requisite knowledge to support her conviction.

This Court has repeatedly recognized that the knowledge element of a violation of a criminal statute can be proved by demonstrating either actual knowledge or deliberate ignorance of criminal activity. The deliberate ignorance instruction is based on the alternative to the actual knowledge requirement at common law that if a party has his suspicions aroused but then deliberately omits to make further inquiries, because he wishes to remain in ignorance, he is deemed to have knowledge. A deliberate ignorance instruction is appropriate when the facts support the inference that the defendant was aware of a high probability of the existence of the fact in question and purposely contrived to avoid learning all of the facts in order to have a defense in the event of a subsequent prosecution.

(Citations and punctuation omitted.) Able v. State, 312 Ga. App. 252, 258 (3) (718 SE2d 96) (2011). See also Aguilera v. State, 293 Ga. App. 523, 525 (1) (667 SE2d 378) (2008) (accord).

Here, given the evidence showing, inter alia, the open and pervasive use of substantial amounts of marijuana in the downstairs family room, the odor resulting therefrom, and the number and frequency of visitors to the house, the jury was authorized to find that, if Kirchner lacked actual knowledge of the illegal marijuana possession and use in her home, it was only because she deliberately ignored the blatant evidence of such activities. Able v. State, 312 Ga. App. at 259-260 (3) (a).

(c) Third, the undisputed fact that Kirchner was the owner and a full-time resident of the house wherein the marijuana was discovered created a rebuttable presumption that she had control over the marijuana found inside.

Under Georgia law, a presumption of possession and control arises when the defendant owns or resides in the premises. Smoot v. State, 316 Ga. App. at 113 (6); Clewis v. State, 293 Ga. App. 412, 414 (2) (667 SE2d 158) (2008). Further, “the equal access rule does not apply to eliminate the presumption of possession where all persons allegedly having equal access to the contraband are alleged to have been in joint constructive possession of the contraband.” (Citations and punctuation omitted.) Smoot v. State, 316 Ga. App. at 114 (6). See also Clewis v. State, 293 Ga. App. at 415 (2) (“[T]he equal access doctrine applies to rebut the presumption of possession only where the sole evidence of possession of contraband found on the premises is the defendant’s ownership or possession of the premises.”) (citation omittedj'emphasis in original). Ultimately, as “long as there is slight evidence of [the defendant’s] access, power, and intention to exercise dominion or control over the contraband, the question of fact as to constructive possession remains with the jury.” (Citations and punctuation omitted.) Smoot v. State, 316 Ga. App. at 113 (6).

Here, the State established the presumption that Kirchner, as the house’s owner and resident, had control of the marijuana found inside, including that in the gun safe, and she was not entitled to rely on the equal access rule to rebut that presumption. Smoot v. State, 316 Ga. App. at 113-114 (6). This presumption, considered with the other inculpatory evidence outlined above, authorized the jury to find that Kirchner knowingly had constructive possession of the marijuana found in the gun safe and, thus, was guilty beyond a reasonable doubt of felony possession of marijuana. Id.

2. Kirchner contends that there was insufficient evidence to support her conviction for contributing to the delinquency of a minor, arguing that the conviction was dependent upon a finding that she knowingly aided him in possessing the marijuana found in the gun safe. According to Kirchner, because there was insufficient evidence to support her conviction for felony possession, the same is true for this conviction. Given our ruling in Division 1, supra, this argument must likewise fail.

3. Kirchner also contends that the evidence presented was insufficient to support her conviction for tampering with evidence. The indictment charged Kirchner with “knowingly concealing] and destroying] physical evidence of marijuana manufacturing and possession of greater than one ounce of marijuana” with the intent to obstruct the prosecution of her son.

(a) Kirchner argues that the State failed to have the residue in the baggies that were discovered in the dishwasher tested to determine if it was, in fact, marijuana residue. She argues that, as a result, the circumstantial evidence presented by the State failed to exclude the reasonable hypothesis that the residue in the baggies was actually herbs, spinach, or another legal substance.

Under former OCGA § 24-4-6, “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”

In order to support a conviction, such circumstantial evidence does not have to exclude every possible hypothesis other than the defendant’s guilt, but only reasonable hypotheses. Whether a hypothesis is reasonable is a question for the jury, and such finding will not be disturbed on appeal unless the guilty verdict is insupportable as a matter of law.

(Citations omitted; emphasis in original.) Eberhart v. State, 241 Ga. App. 164, 165 (1) (526 SE2d 361) (1999).

(i) First, the record shows that Kirchner did not argue this alternative explanation of the contents of the baggies to the jury during closing arguments. Instead, she argued that it must have been someone else who collected the baggies of marijuana and put them in the dishwasher in order to destroy the evidence, such as the young people who were in the house between the time Robins was arrested in the cul-de-sac and when the officers ordered everyone to come out of the house. The jurors clearly rejected that alternative explanation as to who actually put the baggies in the dishwasher, as they were authorized to do, and Kirchner has abandoned it on appeal.

(ii) Second, by washing the baggies in the dishwasher, Kirchner destroyed virtually all of whatever substance was inside, leaving only a residue that the agent believed to be marijuana, based on his training and experience, but that he did not retrieve and submit for drug testing based upon his belief that to do so would create the risk of seriously injuring anyone who inhaled fumes from the residue. Thus, the record supports a finding that it was only as a direct consequence of Kirchner’s intentional act of washing the baggies in the dishwasher that the State was unable to safely test the substance and, instead, was forced to rely on circumstantial evidence to prove that the substance originally in the baggies was marijuana and not some innocuous foodstuff.

To that end, the State showed the jurors pictures of the baggies found in the dishwasher, which they were able to compare to baggies found in the gun safe that indisputably contained marijuana, as well as the baggies in the paper bag Robins was carrying as he left Kirchner’s home and the numerous empty baggies recovered from the safe. This evidence, when considered with the evidence of the marijuana and drug paraphernalia found in the home, the agent’s opinion about the nature of the residue, and Kirchner’s decision to destroy the contents of the baggies when she knew that a search of her home was imminent, was sufficient for the jury to find that the only reasonable hypothesis was that the baggies found in the dishwasher contained marijuana when Kirchner put them in the dishwasher and that she did so with the intent to destroy material evidence. See Rosser v. State, 284 Ga. 335, 335-336 (1) (667 SE2d 62) (2008) (In a case involving a murder during a drug sale, the State proved that the drug was marijuana by presenting circumstantial evidence of the defendant’s purchase and use of the substance and by showing that there were “marijuana-like substances” scattered throughout the victim’s car, including the trunk, a sample of which was tested and found to be marijuana.); Jones v. State, 268 Ga. App. 246, 249 (1) (601 SE2d 763) (2004) (Police officers’ opinions that a substance was marijuana, combined with circumstantial evidence that, inter alia, the defendant acted as if the substance was marijuana, constituted sufficient evidence to support the jury’s conclusion that the defendant possessed marijuana, even absent conclusive scientific testing of the substance.); see also Phillips v. State, 242 Ga. App. 404, 404-405 (530 SE2d 1) (2000) (The jury could infer that the defendant, who was the only person in the kitchen at the time of the execution of the search warrant, intended to destroy evidence of cocaine in her home by placing the plastic bag in which it was contained in the garbage disposal and turning it on.).

(b) In the alternative, Kirchner argues that her tampering conviction must fail because there was a fatal variance between the crime charged in the indictment and the evidence presented at trial. As noted above, the indictment charged that Kirchner tampered with evidence with the intent to obstruct the prosecution of her son. On appeal, she argues that the evidence showed that she destroyed the baggies of marijuana by washing them in the dishwasher in an attempt to prevent her own prosecution, a crime for which she was not indicted.

We find that this argument lacks merit for many of the same reasons discussed above, as well as the fact that, during closing arguments, her attorney argued that she had no knowledge of the marijuana and illegal activity and was trying to protect her son when she refused to consent to the search of her home. In addition, her trial attorney specifically admitted during the new trial hearing that Kirchner’s sole defense at trial was that the marijuana found in her house belonged exclusively to her son, that she had no knowledge of it, and that she was trying to protect her son when she refused to consent to the search.

Most importantly, however, Kirchner waived our consideration of this fatal variance argument by failing to raise it and obtain a ruling on it in the court below. See Weeks v. State, 316 Ga. App. 448, 450 (1) (729 SE2d 570) (2012) (The defendant’s failure to raise the fatal variance issue in the trial court waived the issue for consideration on appeal.); see also Williams v. State, 277 Ga. App. 106, 108 (2) (625 SE2d 509) (2005) (“We are a court for the correction of errors of law committed by the trial court where proper exception is taken, and we will not consider issues and grounds for objection, even of a constitutional magnitude, which were not raised and determined in the trial court.”) (footnote omitted).

Decided June 17, 2013.

Stephen R. Scarborough, for appellant.

Garry T. Moss, District Attorney, Shannon G. Wallace, Cliff Head, Assistant District Attorneys, for appellee.

Judgment affirmed.

Phipps, P. J., and Branch, J., concur.

       Kirchner does not challenge the legality of the search on appeal.

       See Division 3, infra, regarding the tampering with evidence conviction.

       Cf. Cobarrubias-Garcia v. State, 316 Ga. App. 787, 789-791 (730 SE2d 455) (2012) (physical precedent only) (The State failed to prove that the defendant knowingly possessed the drugs because he was not the owner or lessee of the house; no contraband was found on his person; and the evidence did not link him with the drugs found hidden in the house. Consequently, this Court reversed his drug trafficking conviction.); Aquino v. State, 308 Ga. App. 163 (706 SE2d 746) (2011) (The State failed to prove that the defendant knowingly possessed the drugs because he was not the owner or lessee of the house; no contraband was found on his person; and the evidence did not link him with the drugs or manufacturing equipment found in the house. Consequently, this Court reversed his drug trafficking conviction.).

       The indictment charged Kirchner with “knowingly and willfully aid[ing] [D. K.], a minor, in committing a delinquent act, to wit: possession of marijuana, a delinquent act as set forth in OCGA § 15-ll-2[.]” See OCGA §§ 15-11-2 (6) (The term “delinquent act” includes “[a]n act designated a crime by the laws of this state,... under federal laws, or by local ordinance,” but it does not include acts that are described under the “unruly child” provision of this Code section or juvenile traffic offenses.); 16-12-1 (b) (1) (“Aperson commits the offense of contributing to the delinquency, unruliness, or deprivation of a minor when such person . . . [k]nowingly and willfully encourages, causes, abets, connives, or aids a minor in committing a delinquent act[.]”).

       In 2011, the Georgia General Assembly repealed the existing Evidence Code in its entirety and replaced it with a new Evidence Code, the provisions of which became effective on January 1,2013, and apply to any motion, hearing or trial commenced on or after such date. Ga. L. 2011, p. 99, §§ 1, 101. Pursuant to that legislative act, former OCGA § 24-4-6 has been reenacted as OCGA § 24-14-6.

       Although Kirchner filed a motion in limine to exclude the agent’s testimony about the nature of the residue in the baggies found in the dishwasher, she has not challenged the court’s admission of the testimony on appeal. Instead, she contends that the testimony, standing alone, was insufficient to prove that the residue was, in fact, marijuana.

       Cf. King v. State, 317 Ga. App. 834, 838-841 (2) (c) (733 SE2d 21) (2012) (During a traffic stop, officers wrestled the defendant to the ground and restrained her, at which time they observed a small amount of green leafy substance in her mouth. The defendant denied that she had consumed any marijuana, and the officers did not observe her place anything in her mouth. The officers testified that, based upon their training and experience, the leafy substance was consistent with green marijuana, but they did not retrieve any of the substance because they feared being bitten. The officers subsequently searched the defendant and her car, but found no illegal substances or drug paraphernalia. This Court concluded that, under these circumstances, the evidence was insufficient to exclude all reasonable hypotheses except that the defendant had ingested marijuana with the intent to prevent her apprehension or prosecution.); Chambers v. State, 260 Ga. App. 48, 50-52 (1) (579 SE2d 71) (2003) (Because the only evidence presented to show that a substance was marijuana was the opinion testimony of police officers and the introduction of the substance at trial, the evidence was insufficient to exclude the reasonable possibility that the substance was something other than marijuana.).


author: Ray, Judge.

text:
    A13A0170.
    BIGGINS v. THE STATE.
    (744 SE2d 811)
   Ray, Judge.

Raheen Jamal Biggins appeals from his conviction for armed robbery, OCGA § 16-8-41, arguing that the evidence was insufficient to support the verdict, that the trial court erred in failing to remedy an alleged Brady violation, and that he received ineffective assistance of counsel. For the reasons that follow, we affirm.

Viewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979), the evidence shows that the victim, Herlynda Castro, was working as a paid confidential informant for the Chatham-Savannah Counter Narcotics Team (CNT), a law enforcement unit that sets up undercover purchases of illegal drugs. Castro arranged to purchase crack cocaine at a park near a middle school, where the purchase would be under surveillance by CNT agents on the scene and via an audio recording device on Castro’s person as well as an open line on her cell phone. The drug dealers approached Castro at the park, and she got into their car. After driving a short distance, the front seat passenger, Biggins, demanded money from her, pulled out a gun, and threatened to shoot her in the face. Castro gave $450 to the back seat passenger, Andre Heyward. Although Castro testified that she snatched the money back from Heyward when she realized the men were not going to give her the drugs, after Biggins threatened to shoot her in the face, she gave the money to him. Castro then got out of the car and walked away.

Todd Desautels, a CNT agent, testified that while surveilling the park, he saw the drug dealers’ car and identified Biggins as the front seat passenger. After Castro was robbed, Desautels and other officers pursued the vehicle in which Biggins was riding, blocked it, and. approached it while wearing black Kevlar vests emblazoned with the word “Police.” Desautels approached Biggins’ window with his gun drawn and demanded that Biggins “show me his hands,” but Biggins instead began reaching toward his foot. Desautels punched the windshield to get Biggins’ attention and Biggins then put his hands up. Another agent used a baton to break the driver’s side window, but the driver backed the car up and fled, with the agents in pursuit. Agents used a “pursuit intervention technique,” or PIT, maneuver to stop the vehicle, and the vehicle flipped sideways and rolled over, coming to a stop. As Desautels approached the vehicle, he saw Biggins crawl out an open window and drop some money. Desautels ordered Biggins to “stay on the ground.” When Biggins disobeyed and attempted to push himself off the ground, Desautels arrested him.

Jason Parrish, an officer with the CNT at the time of the incident who was at the scene of the arrest, testified that agents found $450 on the ground. Biggins told him that it was his money. Parrish testified that when he compared Biggins’ money to photocopies of the cash agents gave Castro to make the drug purchase, “it was the same money that we gave to the Cl,” that is, to Castro as the confidential informant.

1. As an initial matter, we address the deficiencies in Biggins’ brief, which contains compound enumerations of error, as well as assertions within those enumerations that are not supported by argument or by citation to authority or to the record, in contravention of Court of Appeals Rule 25 (c). We also note that Biggins has failed to include a statement of the method by which each alleged error was preserved for consideration, as required by Rule 25 (a) (1), and that he has failed to provide an applicable standard of review for each issue presented, as required by Rule 25 (a) (3). Our requirements for appellate briefs

were created not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully and efficiently comprehended by this Court .... Further, this Court will not cull the record in search of error on behalf of a party. Accordingly, if we have missed something in the record or misconstrued an argument, the responsibility rests with counsel.

(Punctuation and footnotes omitted.) Fitzpatrick v. State, 317 Ga. App. 873, 874 (1) (733 SE2d 46) (2012). Finally, Biggins’ appellate brief indicates that additional information is necessary to support his arguments, and the brief makes several references to information to be contained in a forthcoming motion to supplement the record. No such motion was filed with this Court.

2. Biggins contends that the evidence was insufficient to convict him.

“A person commits the offense of armed robbery when, with intent to commit theft, he . . . takes property of another from the person or the immediate presence of another by use of an offensive weapón.” OCGA § 16-8-41 (a). Furthermore, “[i]n accordance with OCGA § 16-2-20 (a), any person concerned in the commission of a crime is a party to it and may be convicted as a principal.” (Citation and punctuation omitted.) Bryson v. State, 316 Ga. App. 512, 514 (1) (729 SE2d 631) (2012).

Here, the evidence showed that Castro was robbed, inside a vehicle, by men armed with a gun. Castro spent time in the vehicle with the men, and identified Biggins as the robber holding the gun and to whom she ultimately was forced to give $450. A police officer also identified Biggins as one of the occupants of the vehicle. We do not determine the credibility of eyewitness identification testimony, and any conflicts in that testimony, as well as questions about its accuracy, are within the exclusive province of the jury. Fuller v. State, 320 Ga. App. 620 (740 SE2d 346) (2013). Even though no gun was introduced into evidence at trial, because the driver fled the vehicle, a reasonable jury could have inferred that he took the gun with him and disposed of it. Castro also testified that Biggins pointed a gun at her, and the jury heard a recording taken from the device Castro was wearing during the crime, where a male in the vehicle is heard threatening her and saying, “get the f— out ’fore I shoot you in the face right now.” Moreover, Biggins dropped $450 on the ground and claimed that the money was his. Apolice officer identified the bills as the same ones that had been given to Castro as a confidential informant to complete the drug buy. See Puente v. State, 249 Ga. App. 398, 398 (548 SE2d 109) (2001) (evidence sufficient where, although no gun was presented at trial, ammunition was found in getaway vehicle, as were bills matching the denominations of the money that was stolen). Further, Biggins’ attempt to flee, first in the car and later after it crashed, provided an additional circumstance from which the jury could infer his guilt. See Fuller, supra at 624-625 (1) (b). The evidence was sufficient to sustain Biggins’ conviction.

3. Biggins contends that his trial counsel was ineffective.

To prevail on an ineffective assistance of counsel claim, a criminal defendant must show that his counsel’s performance was deficient and that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668, 694 (III) (B) (104 SCt 2052, 80 LE2d 674) (1984). “The likelihood of a different result must be substantial, not just conceivable.” (Citation omitted.) Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012). We are not required to address both the deficient performance and prejudice prongs of the test if the defendant has made an insufficient showing on either one of them, and “a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Strickland, supra at 697 (IV). Further, “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Hill, supra.

(a) Biggins first argues that he received ineffective assistance because he failed to accept a plea offer as the result of his trial counsel’s failure to advise him that, as a recidivist, he was facing a mandatory life sentence without parole. Biggins now contends that had he known the life sentence was mandatory, he “probably” would have accepted the State’s plea offer.

The record shows that the State offered Biggins a guilty plea in exchange for a ten-year sentence, and at the start of trial, discussed this offer with the Court in Biggins’ presence. The Court informed Biggins that if convicted, he would have to serve “every day” of his sentence, and that the sentencing range was a minimum often years to a maximum of life in prison. When asked by the Court if he understood the sentencing range and the plea offer, Biggins twice responded, ‘Tes, sir,” and stated that he wished his case to go before a jury. At the post-trial sentencing hearing, the State presented evidence of Biggins’ two prior convictions. The trial court said, “I think it’s a mandatory sentence,” and Biggins’ counsel agreed, although there was no discussion of what that mandatory sentence was. The trial court then sentenced Biggins to life in prison because of his prior record. Biggins did not contest the sentence at that time, but later obtained new counsel and moved for a new trial, in part, on this ground. At the hearing on his motion for new trial, both Biggins and trial counsel testified that they discussed the plea offer. Trial counsel also testified that he informed Biggins several times that because of his recidivist status, he “could conceivably be looking at a life sentence,” and explained that the plea offer was a “very good offer relatively speaking, because of the amount of exposure that he faced if he went to trial.” However, trial counsel testified that Biggins wanted a jury trial. Without making any express factual findings, the trial court denied Biggins’ motion for new trial. Because the factual determinations implicit in the court’s denial of the motion were not clearly erroneous, we affirm.

Despite Biggins’ contentions, the law on this issue is well settled. “Objective professional standards dictate that a defendant, absent extenuating circumstances, is entitled to be told that an offer to plead guilty has been made and to be advised of the consequences of the choices confronting him.” (Footnote omitted; emphasis supplied.) Lloyd v. State, 258 Ga. 645, 648 (2) (a) (373 SE2d 1) (1988). In determining whether a defendant has been prejudiced by counsel’s failure to communicate those choices accurately, we must examine the facts of each case to determine whether “there is at least an inference from the evidence that defendant would have accepted the offer as made or something similar.” (Footnote omitted.) Id. at 648 (2) (b). Where, as here, the case involves counsel’s failure to accurately advise a client of the consequences of rejecting a plea rather than counsel’s per se failure to communicate a plea, the Lloyd case-by-case analysis controls. Muff v. State, 210 Ga. App. 309, 311 (2) (436 SE2d 47) (1993). We also have recognized the “self-serving nature of a defendant’s post-conviction testimony regarding his intent with respect to a plea offer, [and] have required some further ‘objective evidence’ that defendant would have accepted a plea offer.” (Footnote omitted.) Childrey v. State, 294 Ga. App. 896, 899 (670 SE2d 536) (2008).

In Sutton v. State, 263 Ga. App. 188, 189-190 (1) (587 SE2d 379) (2003), we held that the defendant was adequately informed of the risks of going to trial even though the trial court told him the sentencing range for armed robbery ranged from ten years to life in prison, then upon conviction, gave him a statutorily mandated life sentence because he was a recidivist. Likewise, in Whitehead v. State, 211 Ga. App. 121, 122-123 (438 SE2d 128) (1993), although defense counsel failed to inform defendant that he was facing a mandatory life sentence, defendant unquestionably had been told that a life sentence was a possibility when he rejected the plea in favor of going to trial. This Court determined that the defendant had been adequately informed that the consequences of refusing the State’s offer could be harsher than the consequences of accepting it. Id. In Carson v. State, 264 Ga. App. 763, 764-765 (592 SE2d 161) (2003) we declined to find counsel ineffective for failing to inform defendant of a mandatory life sentence because counsel had told the defendant of the possibility of a life sentence, and the trial court had told defendant of the range of possible sentences he could face if he rejected the State’s plea offer.

Biggins argues that he has raised the requisite inference that had he been informed that he faced a mandatory life sentence, he would have accepted the State’s offer. The State counters that despite being informed of the possibility of a life sentence, Biggins still rejected the plea. The record further shows that even after being informed that he could face a life sentence, Biggins “continued to assert his innocence and that he wanted to go have a trial by jury.” Biggins also testified at the hearing on his motion for new trial that despite his understanding that the State’s plea offer was the lowest sentence he could get, he felt like he “had a better chance of winning my case” by going to trial. This evidence presents factual issues primarily for resolution by the trial court, and “supports a finding, implicit in the trial court’s ruling, that there was no reasonable probability that [Biggins] would have pled guilty but for counsel’s ineffectiveness.” (Punctuation and footnote omitted.) Childrey, supra at 901. Accord Cleveland v. State, 290 Ga. App. 835, 839 (2) (660 SE2d 777) (2008). “Because [Biggins] knew that he could receive a life sentence, he was sufficiently apprised of the risks of going to trial.” (Footnote omitted.) Sutton, supra at 190 (1). We find that based on the evidence, the trial court was authorized to conclude that Biggins’ claim that he “probably” would have accepted the plea lacked credibility, and as a result, Biggins has not shown prejudice and the trial court did not err by rejecting his ineffective assistance claim. See Childrey, supra.

(b) Biggins next argues that he received ineffective assistance because his trial counsel did not seek to suppress out-of-court eyewitness identifications of him as a perpetrator, contending that the identification procedures were impermissibly suggestive.

“When trial counsel’s failure to file a motion to suppress is the basis for a claim of ineffective assistance, the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion.” (Citation and punctuation omitted.) Rivers v. State, 283 Ga. 1, 5 (3) (b) (655 SE2d 594) (2008). Testimony about pre-trial identification should be suppressed if it is so suggestive that it gives rise “to a substantial likelihood of misidentification. An identification procedure is impermissibly suggestive when it leads the witness to an ‘all but inevitable identification’ of the defendant as the perpetrator[.]” (Citation and punctuation omitted.) Id.

Although Biggins contends that a showup identification procedure at the arrest scene was impermissibly suggestive, his argument and record citations focus only on a pre-trial photographic identification procedure in which he alleges that a police officer influenced Castro to identify suspects through a “process of elimination.” At trial, Castro testified that by looking at police photographs, she told officers where each suspect was seated in the car. She testified that she identified the driver of the car, Reynolds, whose face she did not see, by a “process of elimination,” deducing the driver’s identity in the photograph because “I knew the person that had the gun [Biggins, the front seat passenger], I knew what he was wearing. And I knew what the guy in the back seat, what his face looked like. So that left the last one to be the... driver.” Biggins’ counsel was not ineffective for failing to attempt to exclude an allegedly suggestive eyewitness identification of a defendant who was not his client,

We thus find no merit in Biggins’ contentions of ineffectiveness on this point, as he has failed to show either deficiency or prejudice. See Strickland, supra.

(c) Finally, Biggins argues that his trial counsel was ineffective in failing to investigate his case, offering a scattershot list of counsel’s alleged failures in a footnote, but providing no record citations or supporting argument as to any specific allegation.

At the motion for new trial hearing, trial counsel testified that he had met with Biggins “dozens” of times; kept a detailed trial notebook; that although he did not hire a private investigator, trial counsel visited the crime scene, interviewed CNT officers, ran background checks on civilian witnesses but not police officers or Castro, and that he thoroughly reviewed all discovery. Biggins failed to elicit any specific testimony from any witness at the hearing on his motion for new trial, and failed to show how the evidence or testimony his counsel allegedly failed to procure likely would have affected the outcome of his trial.

“We will not consider such bare-bones claims.” (Citation omitted.) Zamora v. State, 291 Ga. 512, 516 (6) (731 SE2d 658) (2012). “To show prejudice, the defendant is required to offer more than mere speculation that, absent counsel’s alleged errors, a different result probably would have occurred at trial.” (Citation and punctuation omitted.) Id. Thus, the trial court correctly denied his ineffective assistance claim.

4. Finally, Biggins contends that the trial court erred in failing to remedy the State’s alleged violation of Brady v. Maryland, 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963). Biggins argues that the trial court did not require the State to produce evidence or certify that none existed as to the personnel files of testifying officers, and that such evidence could have been favorable to the defendant and material to his guilt or punishment.

Fundamental to any error based upon a violation of Brady is that appellant must prove that: (1) the [S]tate possessed evidence favorable to the defense, i.e., true Brady material; (2) the defense did not possess the evidence, nor could he obtain it himself with any reasonable diligence; (3) the prosecution suppressed the favorable evidence; (4) he was denied access to such evidence during trial; (5) the disclosure would have benefitted the defense by providing evidence for the defense or impeaching prior inconsistent statements; and (6) the denial deprived him of a fair trial, i.e., a reasonable probability exists that the outcome of the proceedings would have been different had disclosure been made.

(Citations and punctuation omitted.) Verlangieri v. State, 273 Ga. App. 585, 591-592 (2) (615 SE2d 633) (2005).

Although Biggins contends that “[e]xtra-record material that Appellant must refrain from citing (but will attempt to make part of the record in the forthcoming Motion to Supplement) indicates the existence of problems in certain officer’s records that would have gone to credibility and therefore should have been disclosed,” Biggins never supplemented the record and has not provided any citation to the record for his Brady argument. His contentions are so general that he has in no way met his burden under Brady. See Willis v. State, 263 Ga. 597, 599 (3) (436 SE2d 204) (1993). This claim of error fails.

Judgment affirmed.

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

Decided June 17, 2013.

Laura G. Hastay, for appellant.

Larry Chisolm, District Attorney, Melanie Higgins, David E. Perry, Meg E. Heap, Assistant District Attorneys, for appellee.

       Biggins was tried along with a co-defendant, Jamari Kareem Reynolds, but Reynolds is not party to this appeal.

       Biggins further argues the pre-trial identification was impermissibly suggestive because the officer allegedly wrote on the back of the photographs where each suspect was seated in the vehicle. Biggins cites to no testimony in the record on this issue, and provides no record citations to the photographic exhibits referenced, nor did we find any photographic exhibits containing the writing Biggins references.

       Biggins also argues that his trial counsel was ineffective for failing to “suppress” Castro’s in-court identification of him as the man with the gun because it was impermissibly suggestive. “Challenges to in-court identifications must be made through cross-examination. Therefore, any pre-trial motion to exclude the in-court identifications would have been meritless, and [Biggins] cannot meet his burden under Strickland on that basis.” (Punctuation and footnotes omitted.) Brown v. State, 320 Ga. App. 382, 387-388 (3) (739 SE2d 819) (2013).

         Biggins concedes that he withdrew a Brady claim as to Castro, so this issue is not before us.