text:
    A13A0883.
    In the Interest of D. L. T. et al., children.
    (747 SE2d 880)
   Ray, Judge.

Tim and Tammy Blankenship appeal from the juvenile court’s dispositional order placing two minor children, D. L. T. and H. S. B., in the permanent custody of the Paulding County Department of Family and Children Services (“DFACS”) preparatory to their adoption by their foster parents. The Blankenships are the paternal grandparents of H. S. B., but have no biological relationship with D. L. T., who is H. S. B.’s half-brother. On appeal, the Blankenships argue that the juvenile court abused its discretion in refusing to place the children with them after DFACS allegedly promised to do so if they completed certain requirements. For the reasons that follow, we affirm.

On October 21, 2010, the juvenile court ordered shelter care for D. L. T. and for H. S. B. The children’s mother had been arrested four days earlier after attacking the Blankenships’ son, Justin Blankenship, who is the putative father of H. S. B. The mother also had threatened to kill herself and the children.

In a December 17,2010 order, the juvenile court found that while in the mother’s care, D. L. T. had been locked in a room and left to play with his own feces, and that Tammy Blankenship knew about this incident. The juvenile court found that the children were deprived, and they were placed with Tim and Tammy Blankenship for five or six weeks. During that time, Tammy Blankenship contacted DFACS three times within a week to say she was having a hard time handling the children and was exhausted. She asked if only D. L. T. could be removed. DFACS informed her that they believed it was in the children’s best interest to keep the siblings together. Before DFACS had time to arrange for daycare services or other help, Tammy Blankenship asked that both children be removed. They were removed in November 2010, and since then have lived with the foster parents who wish to adopt them. During part of the time the children have been in foster care, Tim and Tammy Blankenship had visitation.

On July 12, 2012, DFACS petitioned to terminate the rights of D. L. T.’s and H. S. B.’s biological parents, and Tim and Tammy Blankenship intervened, seeking to have both children placed in their custody. After the children’s biological parents voluntarily surrendered all parental rights, the children were placed in DFACS’ custody over the objection of Tim and Tammy Blankenship. The Blankenships appeal.

OCGA § 15-11-103 (a) provides:

Upon the entering of an order terminating the parental rights of a parent, a placement may be made only if the court finds that such placement is in the best interest of the child and in accordance with the child’s court approved permanency plan created pursuant to Code Section 15-11-58. In determining which placement is in the child’s best interest, the court shall enter findings of fact reflecting its consideration of the following: (1) The child’s need for a placement that offers the greatest degree of legal permanence and security; (2) The least disruptive placement alternative for the child; (3) The child’s sense of attachment and need for continuity of relationships; and (4) Any other factors the court deems relevant to its determination.

Following the termination of parental rights, juvenile courts are not obligated to attempt to place a child with relatives, but need only consider the best interests of the child. In the Interest of S.R.C.J., 317 Ga. App. 699, 705 (3) (b) (732 SE2d 547) (2012). “Because there is no conclusive preference given to relatives, the juvenile court is afforded wide discretion to determine whether a child should be placed with a relative or kept in a stable foster home.” (Citation and punctuation omitted.) In the Interest of J. J., 299 Ga. App. 271, 277 (3) (682 SE2d 349) (2009). See also In the Interest of S. N., 291 Ga. App. 628, 633 (2) (662 SE2d 381) (2008) (no abuse of discretion found where juvenile court declined to place children with parents of mother’s ex-husband, with whom children had no relationship, biological or otherwise).

In their sole enumeration of error, the Blankenships argue that although DFACS promised to place the grandchildren with them, it never had a genuine intention of doing so, and thus “jsjimilar to the doctrine of promissory estoppel, DFACS should not be permitted to make promises to parties and create the expectation of placement and then withdraw their commitment. .. [and] the trial court... should not adopt such an effort.”

As an initial matter, the Blankenships cite no authority for this proposition. Also, they do not point us to anything in the record, nor do we find any such evidence, showing that DFACS promised to place the children with them. It is clear that DFACS considered but ultimately rejected them for placement.

At the dispositional hearing, a DFACS supervisor testified that Tammy Blankenship asked for the children to be removed before a home evaluation could be completed. The supervisor also testified that Tammy Blankenship appeared to have trouble bonding with D. L. T. and showed favoritism to H. S. B., and stated that she believed Tammy Blankenship asked for custody of D. L. T. only when DFACS made it clear that the children would not be separated. She testified that DFACS was concerned about placement with Tim and Tammy Blankenship because the latter knew that D. L. T. was being neglected but did not inform DFACS or attempt to protect him. The supervisor cited an occasion where Tammy Blankenship visited a hotel where the mother was living and found D. L. T. locked in a bedroom and screaming, but did not call DFACS or explain why she took no action. The supervisor also expressed concern over whether Tim and Tammy Blankenship could protect the children given that while the children were living with them, Justin Blankenship had been at their home, drunk and disruptive, and they had not asked him to leave, and because Tim and Tammy Blankenship had asked if he could move back into their home.

A licensed professional counselor testified as an expert for DFACS after observing six hour-long visitations between D. L. T. and Tim and Tammy Blankenship, and after doing individual counseling with D. L. T. The counselor testified that D. L. T. was aggressive toward or withdrawn from Tammy Blankenship during these visits, kicking her at one point and at another retreating into the fetal position. D. L. T. also displayed disturbing behaviors in his foster home following visits with Tammy Blankenship, including urinating on himself and the floor, soiling himself and spreading it on the couch, and screaming that he would have to leave his foster home and that he “had to” visit with Tammy Blankenship. The counselor observed that D. L. T. was affectionate and bonded with his foster parents, but generally was not affectionate with Tammy Blankenship, would turn his head when she tried to kiss him, and had not bonded to her. Because of the aforementioned behaviors, the therapist recommended that his visits with Tim and Tammy Blankenship be stopped and that D. L. T. not be placed with them. She also recommended that D. L. T. and H. S. B. be placed in a home together because of their sibling bond and that it was in their best interest to remain with their foster family.

A licensed psychologist who meets with D. L. T. on a weekly basis also testified on behalf of DFACS. She testified that when she first started seeing D. L. T. in 2011, he was emotionally unstable, had anger issues, and was aggressive. When she asked him why he was so angry, he stated that he did not like to visit with Tammy Blankenship but had no choice. After his visits with Tim and Tammy Blankenship were terminated, the psychologist testified that D. L. T.

calmed down quite a bit. He’s not nearly as angry. He’s not nearly as aggressive. The nightmares that had reoccurred during that period of time were again not a problem. In fact, he didn’t have any after the visits stopped. During those visits, he had been wetting and soiling himself and that [regression had also corrected itself after the visits.

She testified that D. L. T. had bonded with his foster parents, and that removal from the foster home would be difficult and damaging to him, and probably to H. S. B. as well.

Tammy Blankenship testified that she did not have problems standing up to her son, denied that he would be allowed at the home if she got custody of the children, and testified that she wanted custody of both children, not just H. S. B. She stated that when she asked DFACS to remove D. L. T, she thought the removal would be temporary.

The children’s foster mother testified that she and her husband wanted to adopt the children, that the children were bonded to one another and to her and her husband, and that D. L. T.’s behavior improved once the visits with Tim and Tammy Blankenship stopped.

After the above-described hearing, the juvenile court entered an order denying the request to place the children with Tim and Tammy Blankenship. The juvenile court instead gave custody to DFACS in preparation for the children’s adoption by their foster parents. In that order, the juvenile court found that Tammy Blankenship minimized Justin Blankenship’s violent behavior and his drinking problem and “gave little thought as to how the parent’s dysfunction affected her grandchildren.” The court considered placing the children with Tim and Tammy Blankenship, but noted that because of their “denial and co-dependency issues,” DFACS had asked them to attend counseling. Although they were “involved once” with counseling, it was with a nonlicensed, unqualified provider, and they failed to provide verification that they obtained the needed counseling. The juvenile court found that DFACS announced in November 2011 that it would begin transitional visits with the grandparents, but 15 months later, the visits had not yet begun because the grandparents had failed to provide required documents. Visits finally began, but the children’s therapist recommended that they be discontinued after only six visits because of the problems with D. L. T.’s behavior. The juvenile court further found that Tim and Tammy Blankenship “failed to protect [D. L. T.] when he was two from the abuse suffered at the hands of [his mother and Justin Blankenship],” and later called DFACS to “come and get him” because they were unable to handle him. The juvenile court found that because of their denial issues, the grandparents were unable to parent the two children on their own and would not protect the children from their mother and Justin Blankenship. The trial court also found that placing the children with Tim and Tammy Blankenship or separating the children would cause emotional harm, and that placement with the Blankenships was not in the children’s best interest.

Decided August 19, 2013.

Ana M. Rountree, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Calandra A. Harps, Assistant Attorney General, Jennifer Y. Zimmerman, Joseph T. Justice, William R. Pike, for appellee.

Although there was some conflicting testimony, this Court will not reweigh the evidence, nor will we reevaluate the credibility of witnesses. See In the Interest of D. B., 306 Ga. App. 129, 137 (1) (701 SE2d 588) (2010). Thus, in light of the evidence outlined above, “the juvenile court did not abuse its discretion in determining that the children should be kept in their stable foster home rather than placed with [Tim and Tammy Blankenship].” (Citations omitted.) In the Interest of J. J., supra at 278 (3). Nor did the juvenile court abuse its discretion in determining that “placement of [H. S. B.] with her paternal [grandparents] would result in the siblings no longer being together, while continued placement in the foster home would allow the siblings to remain together and be adopted by the foster parents.” In the Interest of M. C., 287 Ga. App. 766, 771-772 (3) (653 SE2d 120) (2007). We find no error.

Judgment affirmed.

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

         This statute is repealed effective January 1, 2014, pursuant to Ga. L. 2013, p. 294, § 1-1.


source: Caselaw Access Project

author: Ray, Judge.

license: Public Domain

text:
    A13A0908.
    GEORGIA DEPARTMENT OF DRIVER SERVICES v. APPLING.
    (747 SE2d 884)
   Ray, Judge.

In this discretionary appeal, the Georgia Department of Driver Services (the “Department”) appeals from the superior court’s reversal of an administrative law judge’s (“ALJ”) decision to suspend Robert Appling’s driver’s license. The Department appeals on several grounds, including that the superior court did not have jurisdiction to hear the appeal and that the trial court’s order is void because the Department did not have proper notice of the hearing. We agree.

The relevant facts are not in dispute. After his second arrest for driving under the influence, Appling’s driver’s license was suspended pursuant to OCGA § 40-5-63. Two months later, Appling applied for and received a limited driving permit approving him to drive “[t] o and from work, school, [and] medical.” Appling was then cited for speeding, and his limited driving permit was revoked pursuant to OCGA § 40-5-64 (g). A hearing concerning both the suspension of Appling’s license and the revocation of his limited driving permit was held before an ALJ on May 29, 2012. The ALJ upheld the suspension and revocation in an order dated June 18, 2012. Appling then filed a motion for reconsideration, which was denied by the ALJ on July 12,2012.

Appling then filed a petition for immediate judicial review with the superior court on August 14, 2012, more than 30 days after the ALJ entered an order denying his motion for reconsideration. A hearing on Appling’s petition for immediate judicial review was held on September 7, 2012. No one from the Department or the Attorney General’s office representing the Department was present at the hearing, and the appellate record does not contain a rule nisi or other indication that notice of the hearing was sent to the Department or the Attorney General’s office. On September 11, 2012, without knowledge that a hearing had already been held, the Attorney General filed an entry of appearance and a motion to dismiss the petition for judicial review. However, the superior court issued an order on September 24, 2012, finding in favor of Appling and directing the Department to immediately reinstate Appling’s “licenses.” The superior court’s order does not address the Department’s motion to dismiss.

1. We agree with the Department’s contention on appeal that Appling’s failure to file his petition for immediate judicial review with the superior court within 30 days after the ALJ’s denial of his motion for reconsideration meant that the trial court was without jurisdiction to consider his petition. Under OCGA § 40-5-66 (a), any decision by the Department can be appealed provided that “[s]uch appeal. .. must be filed within 30 days from the date the department enters its decision____” Here, Appling did not file his petition for judicial review with the superior court until 31 days from the date of the denial of his motion for reconsideration. Accordingly, the superior court was without jurisdiction to consider Appling’s petition. See Hightower v. Cervantes, 259 Ga. App. 562, 563 (1) (578 SE2d 240) (2003).

2. We further agree with the Department’s contention that the court improperly granted full relief to Appling without proper notice of an evidentiary hearing to the Department.

OCGA § 9-10-2 (1) provides that certain judicial actions taken in cases in which the State is a party are void unless “it affirmatively appears as a matter of record” that the Attorney General was given five days written notice of “the particular trial, hearing, or other proceeding” that resulted in the judicial action. See also Ga. Dept. of Med. Assistance v. Columbia Convalescent Center, 265 Ga. 638, 640 (2) (458 SE2d 635) (1995) (this includes orders against state executive agencies). This notice is “an absolute condition precedent” to the enumerated judicial actions. Cofer v. Williams, 141 Ga. App. 72 (232 SE2d 610) (1977); Hawes v. Bigbie, 120 Ga. App. 294 (170 SE2d 302) (1969). In the present case, there is nothing in the appellate record affirmatively stating that the Department or the Attorney General’s office was notified or waived notice of the hearing. Accordingly, we find that the superior court’s judgment reinstating Appling’s license is void, and we reverse.

Decided August 19, 2013.

Samuel S. Olens, Attorney General, Joseph J. Drolet, Senior Assistant Attorney General, Ashley L. Culberson, Assistant Attorney General, for appellant.

Robert E. Appling, pro se.

3. Because of our holdings in Divisions 1 and 2 of this opinion, the Department’s remaining enumerations of error are moot.

Judgment reversed.

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

       Thirty days after July 12, 2012, was Saturday, August 11,2012. Accordingly, pursuant to OCGA § 50-13-19 (b), Appling had until Monday, August 13,2012, to file his petition for judicial review.


text:
    A13A1585.
    DEBERRY v. JOHNSON et al.
    (747 SE2d 886)
   Ray, Judge.

Patricia Ann Deberry appeals the trial court’s order granting summary judgment in favor of Georgia Ann Johnson in Deberry’s personal injury action. For the following reasons, we vacate the order and remand the case to the trial court for further proceedings not inconsistent with this opinion.

In 2012, Deberry filed the present renewal action against Georgia Ann Johnson for injuries she sustained in a car crash. Deberry hired a private process server, who served Terry Johnson at an address in Hahira, Georgia. Terry Johnson stated that Georgia Ann Johnson lived at that address, but that she was not present at the time of service. He accepted the papers on her behalf and agreed to deliver them to her. Johnson filed a timely answer, but argued that she did not live at the Hahira address; she raised the defenses of, inter alia, insufficiency of process, insufficiency of service, and statute of limitation. Johnson then filed a motion for summary judgment, claiming that the action was barred by the statute of limitation and that the complaint should be dismissed for insufficiency of process and insufficiency of service of process. In support of her response brief to Johnson’s summary judgment motion, Deberry filed two affidavits of the special process server.

1. On appeal, Deberry argues that the trial court’s grant of summary judgment in favor of Johnson was in error. We agree. A summary judgment ruling constitutes an adjudication on the merits, and it is not the appropriate procedural vehicle to deal with pleas of abatement, such as those asserted by Johnson in her motion for summary judgment. Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614, 615 (208 SE2d 459) (1974).

In her summary judgment motion, Johnson argued, inter alia, that the complaint should have been dismissed for insufficiency of process and insufficiency of service of process. These are defenses in abatement under OCGA § 9-11-12 (b) (4), (5), and they do not reach the merits of the case. South v. Montoya, 244 Ga. App. 52, 53 (1) (537 SE2d 367) (2000). In Boyd Motors v. Radcliff, 128 Ga. App. 15 (195 SE2d 291) (1973), this Court held that the defenses enumerated in OCGA § 9-11-12 (b) of the Civil Practice Act,

except [subsection] (6), failure to state a claim upon which relief can be granted, are matters in abatement which are not within the scope of the summary judgment procedure, as a motion for summary judgment applies to the merits of the claim or to matters in bar but not to matters in abatement.

(Citations omitted.) Id. Accord Ogden, supra.

Despite Johnson’s arguments to the contrary, the fact that Deberry presented affidavits outside the pleadings as evidence regarding proper service did not authorize the trial court to rule on a summary judgment motion. See McPherson v. McPherson, 238 Ga. 271, 272 (1) (232 SE2d 552) (1977) (“Motions to dismiss for lack of jurisdiction over the person . . . when tried on affidavits ... do not become motions for summary judgment”) (citation omitted). Compare OCGA § 9-11-12 (b) (“If, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment”) (emphasis supplied).

Although Johnson’s summary judgment motion also sought relief under the theories that Deberry failed to exercise due diligence in serving Johnson after the expiration of the statute of limitation and that the statute of limitation period had expired, the trial court’s ruling on these issues was premature. See Hight v. Blankenship, 199 Ga. App. 744, 745 (406 SE2d 241) (1991) (a trial court must rule on matters in abatement to determine whether it has jurisdiction over the merits of the case before it can rule on a statute of limitation issue). Accordingly, we vacate the order granting summary judgment and remand the case to the trial court for further proceedings not inconsistent with this opinion.

Decided August 19, 2013.

Agnew & Agnew, G. Michael Agnew, for appellant.

Coleman Talley, George T. Talley, Emily E. Macheski-Preston, Young, Thagard, Hoffman, Smith & Lawrence, Brian J. Miller, for appellees.

2. Because of our holding in Division 1, we need not address Deberry’s remaining enumeration of error.

Judgment vacated and case remanded.

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


author: Boggs, Judge.

text:
    A13A1215.
    SAFEWAY INSURANCE COMPANY v. HANKS.
    (747 SE2d 890)
   Boggs, Judge.

Jimmie Lee Hanks sued “John Doe” to recover damages for injuries Hanks allegedly sustained in an automobile accident. Hanks served his uninsured motorist carrier, Safeway Insurance Company (“Safeway”), and Safeway filed an answer. A jury found in favor of Hanks and awarded him $13,000. Safeway appeals, alleging that the trial court erred in allowing testimony from Hanks’ expert and erred in its charge to the jury on preexisting condition. We discern no error and affirm.

The record reveals that on February 9, 2002, an unknown driver rear-ended Hanks as Hanks waited to turn left at an intersection. The force of the collision caused Hanks’ head to slam against the driver’s-side window and propelled his car into the middle of the intersection. A “dazed” Hanks exited his vehicle and approached the other driver’s parked car on the side of the road. The driver apologized for the accident, but as Hanks returned to his car to record the tag number, the driver fled the scene. Hanks claimed injuries to his head, neck, back, and leg as a result of the car accident.

On February 15, 2002, Hanks began receiving treatment from a chiropractor for his lower back pain, and on November 11, 2002, he received magnetic resonance imaging (“MRI”) to ascertain the specific nature of the injury. A physician/diagnostic radiologist conducted Hanks’ MRI and prepared a report of his interpretation of the results. He determined that Hanks suffered from a herniated disk in his lower back, and that the herniation “is possibly several months of age.” Over Safeway’s objection, the trial court allowed Hanks to tender the witness as a “radiology expert,” and the witness testified by deposition.

1. Safeway argues that the trial court abused its discretion by allowing Hanks’ expert to testify without requiring Hanks to prove the cause of the herniated disk. Safeway contends that “in order for the MRI findings to be admissible, [Hanks] had to link the findings to the accident.” We disagree.

We review the trial court’s decision to admit or exclude expert testimony under an abuse of discretion standard. Butler v. Union Carbide Corp., 310 Ga. App. 21, 25 (1) (712 SE2d 537) (2011). The Supreme Court of Georgia has held:

[E]xpert evidence typically is not required to prove causation in a simple negligence case. However, expert evidence is required where a “medical question” involving truly specialized medical knowledge (rather than the sort of medical knowledge that is within common understanding and experience) is needed to establish a causal link between the defendant’s conduct and the plaintiff’s injury.

(Citations omitted.) Cowart v. Widener, 287 Ga. 622 (697 SE2d 779) (2010). A back injury resulting from a car accident does not raise a medical question requiring expert testimony on causation. See Jordan v. Smoot, 191 Ga. App. 74, 74-75 (1) (380 SE2d 714) (1989) (holding expert testimony is unnecessary regarding cause of head and neck pain suffered from car accident because issue “is a matter which jurors must be credited with knowing by reason of common knowledge”) (emphasis omitted).

Safeway argues that our decision in Eberhart v. Morris Brown College, 181 Ga. App. 516 (352 SE2d 832) (1987), controls here. “The Eberhart case, however, has been factually distinguished on a number of occasions.” Hutcheson v. Daniels, 224 Ga. App. 560, 561 (1) (481 SE2d 567) (1997). In that case, we determined that a “medical question” existed requiring expert testimony. Eberhart, supra, 181 Ga. App. at 518 (1). The medical question was whether the appellant’s prior football injury was a causal factor in his physical condition several years later. Id. We have drawn a clear distinction between the type of injury in Eberhart and those suffered in automobile collisions, “where a lay jury could conclude from common knowledge that a causal connection existed in light of the short lapse between [the plaintiff’s] accident and his onset of symptoms and receipt of medical treatment.” Hutcheson, supra, 224 Ga. App. at 561.

Safeway also claims that our holding in Magnan v. Miami Aircraft Support, 217 Ga. App. 855 (459 SE2d 592) (1995) controls.

In Magnan, the question presented involved the continuing, long-term nature of an eye injury sustained by a plaintiff who had been exposed to pesticides. We held that the plaintiff “could not simply testify that the continuing eye problems were caused by the incident, but he was required to present expert medical testimony to make this showing. [Cits.]” Id. at 857 (2). This was especially true since the plaintiff’s own physician testified that his initial eye injuries had healed and his later eye problems were not causally related by a reasonable probability. Id.

(Punctuation omitted.) Hutcheson, supra, 224 Ga. App. at 562 (1).

The facts in the present case are more akin to the facts in Jordan and Hutcheson. The question is simply whether Hanks’ injury was caused by the collision. Hutcheson, supra. While the expert testified about the existence of the herniated disk and the length of time it possibly persisted, it was for the jury to determine whether a causal connection existed between the accident and Hanks’ injuries. Id.; Jordan, supra, 191 Ga. App. at 74-75 (1). The trial court therefore did not abuse its discretion in allowing the expert’s testimony.

2. Safeway also alleges that the trial court erred by charging the jury on the presence and aggravation of preexisting conditions because there was “no medical testimony linking any medical conditions to this accident or establishing that [Hanks] had any prior medical conditions which were aggravated by the accident.” But “a charge may be given when there is slight evidence to sustain it.” AT Systems Southeast v. Carnes, 272 Ga. App. 671, 674 (3) (b) (613 SE2d 150) (2005).

Decided August 20, 2013.

Crim & Bassler, Jason D. Darneille, Anne D. Gower, for appellant.

Angel A. Figueredo, for appellee.

There was evidence presented here that Hanks was involved in a car accident 15 months earlier, and that he suffered injuries similar to the injuries suffered in the present case. The radiologist testified he was not surprised to learn that Hanks complained of back and leg pain following the earlier accident, and when asked how old he believed Hanks’ “extrustion is,” he stated that “a significant portion of [Hanks’] herniation has cured in the last several months, possibly the greater part of the year.” This evidence was sufficient to support a jury instruction on preexisting condition, and the trial court did not err in so instructing the jury. See AT Systems, supra; Meeks v. Cason, 208 Ga. App. 658, 661 (2) (431 SE2d 407) (1993).

Judgment affirmed.

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

       The expert stated specifically that he was not opining as to causation.

       While the trial court’s instructions to the jury were not taken down, the court agreed to charge the jury as follows:
      If you should find that, at the time of the incident, the Plaintiff had any physical condition, ailment, or disease which was becoming apparent or was dormant, and if you should find that the Plaintiff received an injury as a result of the negligence of the Defendant, and that the injury resulted in any aggravation of a condition already pending, then the Plaintiff could recover damages for aggravation of the preexisting condition.


text:
    A13A1723.
    HILL v. FIRST ATLANTIC BANK.
    (747 SE2d 892)
   Ray, Judge.

This appeal arises out of the lower court’s grant of First Atlantic Bank’s (“First Atlantic”) motion for summary judgment against defendant Cecily Hill. On appeal, Hill claims that the trial court violated a legislative stay under OCGA § 9-10-150 by allowing a summary judgment hearing to continue while Hill’s attorney, Alex Atwood, who is a state representative from House District 179, was attending the 2012-2013 session of the General Assembly. Because we believe the trial court misconstrued OCGA § 9-10-150, we reverse the trial court’s judgment and remand the case for further proceedings.

The record indicates that in February 2011, First Atlantic sued Hill and Lynn Knox for breach of a promissory note in Glynn County Superior Court. On April 14, 2011, Atwood requested and was issued an order granting a legislative stay under OCGA § 9-10-150. In November 2011, the trial court granted First Atlantic’s motion for default judgment against Knox, and the case against Hill was transferred to the Camden County Superior Court. The Camden County trial court entered an order continuing the legislative stay.

First Atlantic filed a motion for summary judgment on April 10, 2012, and Hill requested oral argument on the motion. The trial court issued a notice of hearing scheduling oral argument on the summary judgment motion for January 18, 2013. As January 18, 2013, fell within the regular session of the General Assembly, Atwood and his partner, Samuel Choate, sought and obtained a continuance due to Atwood’s legislative service. First Atlantic objected to this continuance, claiming that because two other attorneys from Atwood’s firm were “actively involved in this case, there is no reason to further delay” and requesting that the “court withdraw its order staying this matter and set this case for hearing instanter.” Pursuant to First Atlantic’s objection, the trial court re-scheduled the hearing for February 15, 2013, when the General Assembly was still in session. Despite protests by defense counsel, the trial court held the hearing on February 15, 2013, and ultimately granted First Atlantic’s motion for summary judgment.

Hill appeals the summary judgment ruling, claiming the trial court did not have discretion to deny Atwood’s legislative stay while he represented his district in the regular session of the General Assembly. We agree.

On appeal, we review the lower court’s interpretation of a statute de novo, as statutory interpretation is a question of law. Brantley Land & Timber v. W & D Investments, 316 Ga. App. 277, 279 (729 SE2d 458) (2012). The statute at issue states, in relevant part:

A member of the General Assembly who is a party to or the attorney for a party to a case, or any member of the staff of the Lieutenant Governor, the Speaker of the House of Representatives, the President Pro Tempore of the Senate, the Speaker Pro Tempore of the House of Representatives, or the chairperson of the Judiciary Committee or Special Judiciary Committee of the Senate or of the Judiciary Committee or Judiciary, Non-civil Committee of the House of Representatives who is the lead counsel for a party to a case pending in any trial or appellate court or before any administrative agency of this state, shallhe granted a continuance and stay of the case. The continuance and stay shall apply to all aspects of the case, including, but not limited to,... appearance at any hearing, trial, or argument. Unless a shorter length of time is requested by the member, the continuance and stay shall last the length of any regular or extraordinary session of the General Assembly and during the first three weeks following any recess or adjournment. . . .

(Emphasis supplied.) OCGA § 9-10-150. Itis undisputed that Atwood was Hill’s counsel in the case at bar, as his name appears on all relevant court documents.

First Atlantic argued and the trial court accepted the proposition that a presiding judge may override a legislative stay if other actively involved attorneys are available to appear on the behalf of the legislator/attorney. First Atlantic claims that the legislature’s use of “the” when describing “attorney for a party to a case” in OCGA § 9-10-150 indicates that “the statute plainly and unequivocally provides for a legislative stay only when the attorney is a member of the General Assembly and is sole counsel for a party.” We do not agree.

“Language in one part of the statute must be construed in light of the legislature’s intent as found in the whole statute.” (Footnote omitted.) Echols v. A.G. Thomas, 265 Ga. 474, 475 (458 SE2d 100) (1995). OCGA § 9-10-150 describes two sets of protections: those for members of the General Assembly and those for the staff of high-ranking officials in the Senate and the House of Representatives. Both of these protections are mandatory, as indicated by the legislature’s inclusion of the word “shall” throughout the statute. Haugen v. Henry County, 277 Ga. 743, 745 (2) (594 SE2d 324) (2004) (describing “shall” as a “clear and unambiguous term” that indicates a “mandatory requirement.”). Under OCGA § 9-10-150, a staff member who wishes to invoke a legislative stay must be the “lead counsel for a party to a case,” while a member of the General Assembly is only required to be “the attorney for a party to a case.” The legislature clearly intended to afford members of the General Assembly greater protections under OCGA § 9-10-150 than the staff of legislative officials by requiring the staff to act as “lead counsel” to invoke the stay and by including no such qualification for a member of the General Assembly.

Furthermore, First Atlantic’s interpretation of the statute would lead to an untenable practical application. If the courts choose to deny a legislative stay every time other attorneys are “directly involved” in the case, only members of the General Assembly who operate a solo practice or sign the pleadings alone could invoke the statute’s protections. We do not believe this to be the legislature’s intent.

Decided August 20, 2013.

J. Alexander Atwood, Jr., Casey J. Viggiano, J. Samuel Choate, Jr., for appellant.

Kelley & Johnson, Nathan C. Johnson, for appellee.

A review of the statute’s legislative history supports our interpretation of OCGA § 9-10-150. While the concept of a legislative stay has existed in Georgia since 1905, a change significant to this case occurred in a 2002 amendment. See Ga. L. 1905, p. 93, § 1. The 1991 version of the statute included a provision stating, “where there are several attorneys engaged by a party, a continuance shall be granted upon a showing by the party or his other counsel that the absent counsel is necessary or desirable for the proper handling of the case.” Ga. L. 1991, p. 376, § 1. However, this language was omitted by the legislature in a 2002 amendment to the statute. See Ga. L. 2002, p. 403, § 1. As the current form of O CGA § 9-10-150 is very similar to the 2002 version, this Court assumes the legislature purposefully omitted these additional qualifications.

Based upon the above, we find that the trial court erred in proceeding with the hearing in the absence of legislator/attorney Atwood due to his service in the General Assembly. Accordingly, we reverse the grant of First Atlantic’s motion for summary judgment and remand this case to the trial court for further proceedings not inconsistent with this opinion.

Judgment reversed and case remanded.

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

       The 2013 General Assembly convened on January 14, 2013, and adjourned on March 28, 2013.


author: Dillard, Judge.

text:
    A13A0875.
    DRYER v. THE STATE.
    (747 SE2d 895)
   Dillard, Judge.

Following a jury trial, Jonathon Dryer was convicted of possession of more than one ounce of marijuana. Dryer now appeals the denial of his motion to suppress evidence, arguing that the trial court erred in ruling that his interaction with the police officer who ultimately arrested him began as a first-tier encounter that did not require reasonable, articulable suspicion of criminal activity. For the reasons set forth infra, we agree. Accordingly, we reverse the denial of Dryer’s motion to suppress and his conviction.

Viewed in the light most favorable to the jury’s verdict, the record shows that around 11:00 p.m. on April 4, 2010, a Douglasville police officer was patrolling the parking lot of a local country club and golf course when he noticed a red Mercury Sable that was backed into a parking space near the lower part of the lot. And because the country club had been closed for at least two hours and there were no other vehicles in the parking lot except for a dump truck left by a construction crew, the officer drove toward the Sable in his patrol car to investigate. As the officer approached, the Sable pulled out of the parking space and began driving toward the parking lot’s exit, which entailed driving past the officer. At that point, however, the officer activated his patrol car’s blue lights, and the Sable immediately stopped.

The officer then exited his patrol car, approached the Sable, and asked the vehicle’s sole occupant, thereafter identified as Dryer, what he was doing in the country club parking lot. Dryer responded that he had played golf earlier and that he had just used the restroom located in a building near the pool at that end of the parking lot. But during this conversation, the officer smelled the odor of burnt marijuana and noticed that Dryer appeared nervous. Consequently, the officer asked Dryer for consent to search his vehicle. And when Dryer refused, the officer requested that a K-9 unit be dispatched to the scene.

While awaiting the arrival of the K-9 unit, Dryer admitted to the officer that he had smoked some marijuana and that he still had some marijuana in his vehicle. Approximately 20 minutes later, the K-9 unit arrived, and during a free-air search, the dog alerted to the presence of illegal drugs. Thereafter, the officers searched Dryer’s vehicle and found eight plastic bags containing small amounts of marijuana, nine empty bags containing only marijuana residue, and twenty-two bags containing marijuana seeds and stems. Ultimately, the amount of marijuana recovered weighed nearly 2.5 ounces.

Dryer was thereafter arrested and charged, via accusation, with one count of possession of marijuana with intent to distribute. Prior to trial, he filed a motion to suppress the drug evidence found during the search of his vehicle. The trial court held a hearing, during which only the officer who initiated the encounter with Dryer testified. And at the conclusion of the hearing, the trial court denied Dryer’s motion, finding that the officer’s initial contact with Dryer was a first-tier encounter that lawfully escalated into a second-tier encounter after the officer smelled the burnt marijuana. Subsequently, Dryer was tried, and the jury found him guilty of the lesser-included charge of possession of more than one ounce of marijuana. This appeal follows.

At the outset, we note that in reviewing a trial court’s decision on a motion to suppress, “we construe the evidence most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility of the witnesses are adopted unless they are clearly erroneous.” Further, because the trial court is the trier of fact, its findings “will not be disturbed if any evidence supports them.” However, the trial court’s application of law to undisputed facts is reviewed de novo. With these guiding principles in mind, we turn now to Dryer’s sole enumeration of error.

1. Dryer contends that the trial court erred in denying his motion to suppress. Specifically, he argues that the trial court erred in ruling that his initial interaction with the police officer was a first-tier encounter that did not require reasonable, articulable suspicion of criminal activity. We agree.

The Supreme Court of the United States has set forth — most notably in Terry v. Ohio — three tiers of police-citizen encounters:

(1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.

And in order to “analyze a defendant’s claim that he was the victim of an illegal police detention, a court must first categorize the police-citizen encounter at issue.”

It is well established that in a first-tier encounter, police officers “may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave.” In fact, “[t]here is no threshold requirement and indeed the individual may refuse to answer or ignore the request and go on his way if he chooses, for this does not amount to any type of restraint and is not encompassed by the Fourth Amendment.” Essentially, as long as a reasonable person would feel free to disregard the police and go on about his business, “the encounter is consensual and no reasonable suspicion is required.”

In the case sub judice, the State contends that the police officer’s initial interaction with Dryer was a consensual first-tier encounter, which required no reasonable, articulable suspicion of criminal activity. We disagree. When the officer first observed Dryer’s vehicle it was parked, but a few moments later, as Dryer pulled out of the parking space and began driving toward the parking lot exit, the officer activated his patrol vehicle’s blue lights. Not surprisingly, Dryer immediately stopped. And indeed, while testifying during the motion-to-suppress hearing, the officer characterized his own actions as initiating “a stop” when Dryer’s vehicle attempted to drive past him. Thus, not only did the officer create the impression that Dryer could not leave, he clearly was not going to allow Dryer to do so. Given these circumstances, the officer’s initial interaction with Dryer was not a first-tier encounter but, rather, immediately began as a second-tier encounter requiring reasonable, articulable suspicion of criminal activity.

Nevertheless, the State, citing Collier v. State, argues that a police officer, whose patrol vehicle’s blue lights have been activated, may approach a defendant’s stopped vehicle, question the defendant, and that such conduct may still constitute a first-tier rather than a second-tier encounter. However, contrary to the State’s argument, the facts in Collier are distinguishable from those at issue here. In Collier, the arresting officer activated his vehicle’s blue lights while en route to investigate an alleged domestic violence incident. After he arrived on the scene and parked, the officer saw the defendant’s vehicle — which had no relation to the domestic violence call — back up in the wrong lane of traffic, pull into a driveway nearly 50 yards down the street, and park. At that point, the officer approached the defendant’s vehicle and began the questioning that resulted in the discovery of illegal drugs. Based on these specific facts, we held that the officer did not “stop” the defendant but, rather, that the defendant “voluntarily stopped his vehicle in a driveway and that the police officer then approached his vehicle, with no indication that the officer prevented his departure other than by speaking to him.” Moreover, and importantly, we also held in Collier that the defendant’s act of backing up his car in the wrong lane of traffic was evidence of a traffic violation that provided the officer with reasonable, articulable suspicion to justify a stop of the vehicle. Indeed, we noted that the officer even told the defendant that the improper backing prompted his questioning.

In contrast, here, Dryer did not come upon a scene where an officer was already parked with his vehicle’s lights illuminated. Instead, after the officer first observed Dryer’s vehicle parked in the lot, he decided to approach and investigate. Dryer then attempted to leave but immediately stopped when the officer activated his patrol vehicle’s blue lights. Given these facts, any argument that Dryer would have, nevertheless, felt free to ignore the police officer and continue driving away strains credulity. Thus, the trial court erred in ruling that the police officer’s initial contact with Dryer was a first-tier encounter not requiring reasonable, articulable suspicion of criminal activity.

2. Having concluded that this was a second-tier rather than a first-tier encounter, we must now determine whether the police officer had “a particularized and objective basis for suspecting [Dryer] of criminal activity.” We find that he did not.

Decided August 21, 2013.

Edward V. C. Silverbach, for appellant.

David McDade, District Attorney, Rachel D. Ackley, Assistant District Attorney, for appellee.

There is no evidence in the record that Dryer committed any traffic violation warranting a stop. And while Dryer was parked in the country club parking lot after the club had closed, there was no evidence presented that this was a high-crime area or, more specifically, that any crimes had recently been committed at the club. Additionally, there is no evidence in the record indicating that the officer specifically believed that Dryer was trespassing, but only generally that he did not think there was any reason for Dryer to be there. However, an officer’s subjective feeling that a person is “acting in a suspicious way does not amount to a particularized and objective basis for suspecting him of criminal activity.” Thus, the trial court erred in denying Dryer’s motion to suppress evidence. Accordingly, we reverse the denial of Dryer’s motion and his conviction.

Judgment reversed.

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

        See, e.g., Sidner v. State, 304 Ga. App. 373, 374 (696 SE2d 398) (2010).

        See OCGA § 16-13-30 (j) (1).

        See OCGA § 16-13-30 (a).

        Rocha v. State, 317 Ga. App, 863, 866 (733 SE2d 38) (2012) (punctuation omitted).

        Id. (punctuation omitted).

        Id.

       392 U. S. 1, 21 (III) (88 SCt 1868, 20 LE2d 889) (1968).

        Minoro. State, 298 Ga.App. 391, 394(1) (a) (680 SE2d 459) (2009) (punctuationomitted).

        Thomas v. State, 301 Ga. App. 198, 200 (1) (687 SE2d 203) (2009).

        Id. (punctuation omitted).

        Id., (punctuation omitted).

        Id. (punctuation omitted).

        See Satterfield v. State, 289 Ga. App. 886, 887-88 (1) (658 SE2d 379) (2008) (holding that police officer’s stop of defendant’s vehicle as it pulled into a private driveway was not a first-tier encounter given that the officer activated his lights when he pulled behind defendant and testified that defendant was not free to leave); O’Neal v. State, 273 Ga. App. 688, 690 (616 SE2d 479) (2005) (holding that officer’s actions did not constitute a first-tier encounter when officer pulled next to defendant’s parked vehicle and activated his blue lights); McKinley v. State, 213 Ga. App. 738, 739 (445 SE2d 828) (1994) (holding that officer’s actions did not constitute a first-tier encounter when officer pulled next to defendant’s parked vehicle, activated his blue lights, and testified during hearing that defendant was not free to leave). Compare Hutto v. State, 259 Ga. App. 238, 239 (576 SE2d 616) (2003) (holding that officer’s contact with defendant was a first-tier encounter even though he activated his vehicle’s blue lights because given the late hour, the possible hazard of other traffic, and the officer’s offer of assistance, activating the lights as he stopped behind defendant’s motorcycle, which was parked on the side of the highway, did not create impression that defendant could not leave).

       282 Ga. App. 605 (639 SE2d 405) (2006).

        Id. at 605-06.

        Id.

        Id. at 606.

        Id. at 606-07.

        Id. at 607-08; see OCGA § 40-6-240 (a) (“A driver shall not back a vehicle unless such movement can be made with safety and without interfering with other traffic.”).

        Collier, 282 Ga. App. at 606.

        See Black v. State, 281 Ga. App. 40,44 (1) (635 SE2d 568) (2006) (noting that “a citizen’s ability to walk away from or otherwise avoid a police officer is the touchstone of a first-tier encounter” (punctuation omitted)).

        Satterfield, 289 Ga. App. at 888 (2) (punctuation omitted). See generally Lewis v. State, 317 Ga. App. 391, 394 (730 SE2d 757) (2012) (“[E]ven if the trial court’s asserted ground for denying a motion to suppress is erroneous, we will affirm the ruling if it is ‘right for any reason.’ ” (punctuation omitted)).

        Compare LeRoux v. State, 300 Ga. App. 310, 312-13 (684 SE2d 424) (2009) (affirming denial of motion to suppress when officer saw no traffic violation, but defendant was driving through a private golf course late at night, and there recently had been crimes committed on the golf course after hours). We further note that “a person’s mere presence in a high crime area does not give rise to reasonable suspicion of criminal activity, even if police observe conduct which they believe consistent with a general pattern of such activity.” State v. Hopper, 293 Ga. App. 220, 222 (666 SE2d 735) (2008) (punctuation omitted).

        Ewumi v. State, 315 Ga. App. 656, 661 (1) (727 SE2d 257) (2012) (punctuation omitted).

        See Smith v. State, 245 Ga. App. 613, 619 (538 SE2d 517) (2000) (reversing denial of motion to suppress because officer’s decision to stop defendant’s vehicle “was based simply on an unparticularized suspicion or hunch, which is not sufficient to justify an investigative stop” (punctuation omitted)); State v. Winnie, 242 Ga. App. 228, 229-30 (529 SE2d 215) (2000) (holding that police officer lacked reasonable, articulable suspicion to justify investigatory stop of defendant’s truck when officer observed truck pull into the parking lot of a closed store at 4:00 a.m. and then begin to drive away when officer approached).


author: ANDREWS, Presiding Judge.

text:
    A13A1393.
    A13A1394.
    MITCHELL v. THE STATE. TILLER v. THE STATE.
    (747 SE2d 900)
   ANDREWS, Presiding Judge.

Sheldon Mitchell and Rebba Christine Tiller were jointly tried in a bench trial on evidence stipulated to by the prosecution and the defense. Mitchell was found guilty of manufacturing marijuana in violation of OCGA § 16-13-30; possession of marijuana with intent to distribute in violation of OCGA § 16-13-30; and manufacturing marijuana and possessing marijuana with intent to distribute within 1,000 feet of a public school in violation of OCGA § 16-13-32.4. Tiller was found guilty of possession of oxycodone in violation of OCGA § 16-13-30. All of the convictions were based on evidence of marijuana and oxycodone found by police during a search (pursuant to a search warrant) of the residence occupied by Mitchell and Tiller.

Mitchell and Tiller contend that the trial court erred by denying their motions to suppress evidence of the marijuana and oxycodone because it was found during a search conducted in violation of the Fourth Amendment. We agree. Because the search warrant was issued based on knowledge illegally obtained by police in violation of the Fourth Amendment, the subsequent search pursuant to the warrant was illegal, and the trial court erred by denying the motions to suppress. In the absence of the illegally obtained evidence, there was insufficient evidence to support the guilty verdicts. Accordingly, the convictions against Mitchell and Tiller must be reversed.

The record shows that, at about 11:00 p.m., police were searching for the driver of a car who had fled from the scene of a traffic stop. A dual purpose police dog — a dog trained to detect people as well as drugs — was brought to the scene of the traffic stop to help search for the driver. After unsuccessfully searching for the driver with the dog for about two hours near the scene of the stop, police officers and the dog were walking back to the stop scene along a street on which a residence occupied by Mitchell and Tiller was located. As the officers passed the driveway of the residence, an officer heard “some type of crashing in the woods ... a tree branch breaking or something like that.” The sound came from a wooded area located adjacent to the residence. On a hunch that the sound might have been made by the driver, the officers decided to search the wooded area with the dog. A stream ran between the street and the wooded area, and the driveway to the residence provided a bridge across the stream. At about 1:00 a.m., the officers and the leashed dog entered onto the residential property on the driveway and used the bridge on the driveway to cross the stream. Before reaching the residence, the officers and the dog left the driveway, walked in front of the residence across the front yard, then alongside the residence in the side yard, then away from the residence in the side yard toward another bridge which led into the adjacent wooded area. At some point after the officers left the driveway and were crossing the yard of the residence, the officers smelled the strong and distinctive odor of raw marijuana coming from the residence. As the officers continued across the yard, the dog also smelled and alerted to the odor and pulled on its leash toward the basement door located on the side of the residence. The officer pulled the dog away from the residence and continued into the adjacent woods where the officers and the dog unsuccessfully searched for the driver. After concluding their search of the woods, the officers and the dog returned by the same route, again cutting across the side and front yards of the residence to the driveway and then back to the street. During the return trip across the yard of the residence, the dog alerted again in the same area.

The officer returned the dog to his police vehicle, then returned to the residence and knocked on the door. When Mitchell answered the door, the officer told him that, while he was coming through his yard, he smelled the odor of marijuana. Mitchell responded that he did not know what the officer was talking about. The officer asked if anyone else was inside the residence, and Mitchell identified Tiller and told the officer that he would not allow him inside. The officer then left the scene to apply to the magistrate court for a warrant to search the residence. In support of an application for a warrant to search the residence, the officer stated under oath that he had probable cause to believe that marijuana and related paraphernalia were located in the residence because he and his police dog, which was certified to detect the odor of marijuana, “had to pass through the yard of the residence” and “smelled a strong odor of raw marijuana coming from the residence.” The officer further stated that the dog alerted for the odor on the basement door of the residence, and that two other officers stated that they also smelled the strong odor of raw marijuana as they walked in the yard of the residence. Based on this information, the magistrate court issued a warrant for the officers to search the residence. During a search of the residence pursuant to the warrant, officers found approximately 196 marijuana plants growing in the residence, and found oxycodone in a container in Tiller’s purse.

The record shows that the police and the police dog initially smelled the odor of raw marijuana coming from the residence after they left the driveway and intruded into the yard or curtilage of the residence. The yard in which the officers and the dog were walking when they smelled the marijuana was immediately surrounding the residence, an area within the curtilage of the residence, and was therefore an area in which Mitchell and Tiller had a reasonable expectation of privacy protected by the Fourth Amendment’s prohibition against unreasonable searches and seizures. Espinoza v. State, 265 Ga. 171, 172-173 (454 SE2d 765) (1995). This area is considered “part of the home itself for Fourth Amendment purposes.” Oliver v. United States, 466 U. S. 170, 180 (104 SCt 1735, 80 LE2d 214) (1984). Because the intrusion into this protected area occurred without consent, a warrant, or probable cause and exigent circumstances, the officers were illegally present in the area in violation of the Fourth Amendment. Corey v. State, 320 Ga. App. 350, 353 (739 SE2d 790) (2013). “[N]o search in a Fourth Amendment sense has occurred when a law enforcement officer, lawfully present at a certain place, detects odors emanating from private premises. . . .” Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.2 (a) (2012). But in this case, because the officers and the dog were unlawfully intruding on the curtilage of the residence, the odor of marijuana they smelled during the intrusion was evidence illegally obtained by search or seizure in violation of the Fourth Amendment. Compare State v. Silva, 263 Ga. App. 371, 373 (587 SE2d 762) (2003) (no Fourth Amendment violation where officer detected “plain smell” of marijuana from a place where he was lawfully present). The evidence of marijuana and oxycodone found during the search of the residence should have been suppressed by the trial court because the finding of probable cause to issue the search warrant was based wholly on information illegally obtained by the officers in violation of the Fourth Amendment. Rothfuss v. State, 160 Ga. App. 863, 864-865 (288 SE2d 579) (1982).

Judgments reversed.

Dillard and McMillian, JJ., concur.

Decided August 22, 2013

West & Corvelli, David S. West, for appellant (case no. A13A1393).

Herbert P. Schlanger, for appellant (case no. A13A1394).

D. Victor Reynolds, District Attorney, John R. Edwards, Assistant District Attorney, for appellee.

       By contrast, “[the] Fourth Amendment does not cover police observations from places where visitors are expected, such as walkways, driveways, and porches.” Espinoza, 265 Ga. at 173. In denying the motions to suppress, the trial court found that the officers first smelled marijuana (and that the dog first alerted to the smell of marijuana) while they were still walking on the driveway of the residence before they entered the adjacent yard. We find no support in the record for this finding of fact. In the absence of support in the record for a finding that the first smell of marijuana was detected on the driveway, we conclude that this finding of fact by the trial court was clearly erroneous. Woods v. State, 258 Ga. 540, 541 (371 SE2d 865) (1988) (trial court’s findings of fact accepted on appeal unless clearly erroneous).

       Exigent circumstances can be established on the basis that police are in “hot pursuit” of a fleeing suspect. The trial court made no such finding in this case. We find no basis to conclude that the officers were in “hot pursuit” of the driver when they entered the curtilage of the residence. The officers had been searching unsuccessfully for the driver for two hours after he fled the traffic stop when they entered the curtilage to explore a hunch that the driver may have been in an adjacent wooded area. See Darby v. State, 216 Ga. App. 781, 782 (455 SE2d 850) (1995) (no continuity and immediacy of pursuit to establish “hot pursuit”; officers were merely following a hunch that suspect was in residence).


text:
    A13A0938.
    JOHNSON v. BUTLER et al.
    (748 SE2d 111)
   Dillard, Judge.

Shilene Johnson was discharged from her job as an elementary - school teacher in Fulton County and applied for unemployment-compensation benefits, which were denied. Following Johnson’s challenge, an administrative-hearing officer (“AHO”) affirmed the denial of benefits, as did both the Department of Labor Board of Review (the “Board”) and the Superior Court of Fulton County. Johnson now appeals, arguing that the Board erred in finding that she was disqualified from benefits because she failed to obtain the necessary teacher certification as instructed upon hire. For the reasons set forth infra, we reverse.

The record shows that Johnson was hired by the Fulton County School District (the “District”) in 2006 to teach elementary school. At the time Johnson was hired, the District informed her that she was required to pass the GACE teachers’ examination within five years of the start of her employment. Johnson understood this requirement, and although she took the GACE exam eight times between 2006 and 2011, she failed to pass it. Consequently, in September 2011, after failing to pass the exam within five years, the District terminated her employment.

Johnson then applied for unemployment-compensation benefits, which were denied. Johnson challenged the denial, and an AHO held a hearing on the matter. No representative from the District attended the hearing, and only Johnson testified. Three days later, the AHO affirmed the denial of benefits, finding that because Johnson did not obtain her GACE certification within five years of the start of employment, she was disqualified from receiving benefits for her “failure to obey rules, orders, or instructions, or for failure to perform the duties for which employed.”

Johnson appealed to the Board, but it adopted the AHO’s decision. Shortly thereafter, she filed a petition for judicial review in the Superior Court of Fulton County. Both parties filed briefs, and a hearing was held on the matter but was not transcribed. On October 8, 2012, the superior court entered an order affirming the Board’s decision. Consequently, Johnson filed an application for discretionary appeal, which we granted. This appeal follows.

At the outset, we note that when a court reviews a decision of the Board that an employee is disqualified for unemployment-compensation benefits, “the factual findings of the Board are conclusive to the extent that they are supported by competent evidence, and the court must affirm the decision of the Board if it is supported by any competent evidence.” Furthermore, this Court’s duty is not to review “whether the record supports the superior court’s decision but whether the record supports the initial decision of the administrative agency.” And on appeal, we will similarly uphold the Board’s factual findings if there is any evidence to support them. With these guiding principles in mind, we turn now to Johnson’s enumeration of error.

Johnson contends that the Board erred in disqualifying her for unemployment-compensation benefits on the ground that she failed to follow the instructions of her employer. Specifically she argues that although she did not become GACE certified within five years of beginning her employment, she made a bona fide effort to pass the exam, which qualifies her for benefits. We agree and, therefore, reverse the judgment below.

Under Georgia law, no unemployment-compensation benefits are due to an individual who is fired “for failure to obey orders, rules, or instructions or for failure to discharge the duties for which the individual was employed as determined by the Commissioner according to the circumstances in the case.” However,

[a]n individual shall not be disqualified for benefits ... if, based on the rules and regulations promulgated by the Commissioner, the Commissioner determines ... [t]he individual made a good faith effort to perform the duties for which hired but was simply unable to do so . . . [or] [t]he individual did not intentionally fail or consciously neglect to perform his or her job duties.

This is consistent with the fact that “Georgia, like the other states of the Union, has a strong public policy favoring payment of unemployment benefits to persons unemployed through no fault of their own.” Thus, an employer claiming that a former employee is disqualified from receiving unemployment benefits “bears the burden of proving the grounds for disqualification by a preponderance of the evidence.” In fact, disqualification is not appropriate unless “the employer shows the discharge was caused by the deliberate, conscious fault of the [employee] .” And as the Supreme Court of Georgia has explained, “ [f]ault’ means more than mere failure to perform one’s work duties.” As such, an employee who does not perform her work assignment because “she is unable to do so (i.e., not through fault or conscious neglect) cannot he penalized under OCGA § 34-8-[194 (2) (A)].” Furthermore, although we are bound to apply the “any evidence” standard in these cases, “whether there is fault assignable to a claimant, which is a legal requirement for disqualification, often requires a legal conclusion.”

Here, it is undisputed that Johnson took the GAGE exam eight times during a period of five years, but did not succeed in passing it. What is in dispute is whether her failure to pass the test was due solely to her inability to pass the test, or was instead caused by a conscious neglect on her part, which would justify disqualifying her from receiving unemployment benefits under OCGA § 34-8-194 (2) (A).

Having carefully examined the record on appeal, we conclude that there is no evidence contradicting Johnson’s contention that she made a bona fide effort to pass the GACE exam. Indeed, the District provided no evidence during the hearing before the AHO that Johnson’s repeated failures were the product of her carelessness or deliberate malfeasance, and the Board made no finding of fact that she failed to make a bona fide effort to pass the exam. And in this regard, our case law has established that a teacher discharged for failing to pass a certification exam shall not be disqualified from unemployment-compensation benefits if the teacher made a “bona fide effort” to pass the exam.

Nevertheless, the District now argues that Johnson’s testimony that “things ... on the test were not typical to teaching children” shows her failure to adequately prepare for the exam. While this testimony indicates a possible reason for her exam failures, it does not constitute evidence that Johnson did not make a bona fide effort to pass the exam. Additionally, the fact that Johnson was notified of the GACE requirement upon her hire is not relevant to whether she made bona fide efforts to pass the exam. While passing the exam was a legitimate requirement for Johnson’s continued employment, and her subsequent failure to pass the test was a legally permissible reason for her discharge, this requirement cannot be used to disqualify her from receiving unemployment-compensation benefits. Accordingly, we reverse the judgment below and remand this case to the Board for a decision consistent with this opinion.

Judgment reversed.

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

Decided August 23, 2013.

Margaret L. Kinnear, for appellant.

Samuel S. Olens, Attorney General, Nelson, Mullins, Riley & Scarborough, Neeru Gupta, for appellees.

        See OCGA § 34-8-194 (2) (A).

        Teal v. Thurmond, 310 Ga. App. 312, 313 (713 SE2d 436) (2011) (citation omitted); see OCGA § 34-8-223 (b).

        Solinet v. Johnson, 280 Ga. App. 227, 228 (633 SE2d 626) (2006) (punctuation omitted).

        Id.

        See OCGA § 34-8-194 (2) (A).

        See OCGA § 34-8-194 (2) (B) (i), (ii).

        Millen v. Caldwell, 253 Ga. 112, 113 (317 SE2d 818) (1984); see also Williams v. Butler, 322 Ga. App. 220, 222 (1) (744 SE2d 396) (2013); OCGA § 34-8-2 (“As a guide to the interpretation and application of this chapter, the public policy of this state is declared to he as follows: economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of this state . . . .”).

        Teal, 310 Ga. App. at 313; see also Williams, 322 Ga. App. at 222 (1).

        Davane v. Thurmond, 300 Ga. App. 474, 476 (685 SE2d 446) (2009) (punctuation omitted).

        Millen, 253 Ga. at 113.

        Id.; see also Williams, 322 Ga. App. at 222 (1) (same).

        Fulton County School Dist. v. Hersh, 320 Ga. App. 808, 813 (1) (740 SE2d 760) (2013) (punctuation omitted); see also Williams, 322 Ga. App. at 223 (1).

        See Troup County Bd. of Ed. v. Daniel, 191 Ga. App. 370, 371 (381 SE2d 586) (1989) (holding that a teacher was qualified for unemployment-compensation benefits after she failed a certification test three times in one year, when there was no evidence suggesting she did not engage in her best efforts); see Tanner v. Golden, 189 Ga. App. 894, 895 (377 SE2d 875) (1989) (holding that a teacher was qualified for unemployment-compensation benefits when she made bona fide efforts to pass a certification exam and the evidence showed that she took the exam several times and used study aids). In its brief, the District argues that our decision in Tanner is physical precedent only pursuant to Court of Appeals Rule 33 (a), which provides:
      If an appeal is decided by a Division, a judgment in which all three judges fully concur is a binding precedent; provided, however, an opinion is physical precedent only with respect to any Division of the opinion for which there is a concurrence in the judgment only or a special concurrence without a statement of agreement with all that is said. . . .
      Assuming arguendo that Tanner is only physical precedent, it is ultimately of no consequence because a subsequent, unanimous panel of this Court fully adopted the reasoning of Tanner in the Daniel opinion noted supra. The District’s contention that Court of Appeals Rule 33 (a) precludes a panel of this Court from fully adopting, and thus making fully precedential, a prior physical precedent is wholly without merit.

        See Davane, 300 Ga. App. at 477 (“[Because] disqualification of benefits requires ‘deliberate, conscious fault’ by the employee, an employee’s bona fide effort to comply with an employer’s orders is not consistent with a finding of fault.”); Tanner, 189 Ga. App. at 895 (finding that a teacher who failed certification exam did not exhibit “the conscious, deliberate fault necessary” to disqualify her from benefits); see also Daniel, 191 Ga. App. at 371 (following the reasoning set forth in Tanner).


text:
    A13A1025.
    CARTER v. RIGGINS et al.
    (748 SE2d 117)
   ANDREWS, Presiding Judge.

David Carter sued Lorenzo Riggins and Rosa Hester alleging that, while he was an invitee at a restaurant they owned and operated, he was physically attacked and injured by two of Hester’s sons, one of whom was working at the restaurant. Carter asserted two causes of action: (1) that in violation of OCGA § 51-3-1 Riggins and Hester failed to exercise ordinary care to keep him safe from the attack on the restaurant premises; and (2) that under the principle of respondeat superior they were liable for the actions of Hester’s son employed at the restaurant. Carter appeals from the trial court’s grant of summary judgment in favor of Riggins and Hester. For the following reasons, we affirm.

To prevail on a motion for summary judgment, “the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewing the record in this light, we find that the trial court correctly granted summary judgment in favor of Riggins and Hester.

Prior to the alleged attack, Carter had engaged in a romantic relationship with Hester, who he believed was divorced. In fact, Hester was married with five children, including a son in high school and an adult son. Carter went to have lunch at the restaurant owned and operated by Riggins and Hester. Hester was not there at the time, but Riggins was present running the restaurant, and Hester’s high school-aged son was there working at the restaurant. There was evidence that Riggins and both of Hester’s sons were aware of Hester’s romantic relationship with Carter. The high school son testified that the relationship between his mother and Carter made him feel “like crap” and that, when he saw Carter at the restaurant, he wanted Carter to leave and told Riggins to tell Carter to leave. Riggins said that he had never heard the son speak about Carter, and did not even know if he knew Carter. Nevertheless, after Carter arrived at the restaurant, Riggins saw that the high school son had a strange or angry look on his face which made Riggins feel like “something was going to happen.” Because Riggins “didn’t like the look” on the son’s face, he thought that the son might be angry because he knew about his mother’s relationship with Carter. Riggins testified that he called Carter up to the cash register to warn him and told Carter that he thought “something may happen” or “I feel like something is going to happen.”

Carter testified that, during his relationship with Hester, she introduced him to her high school son, that the son knew about their relationship, and that he saw no indication that the son had any animosity toward him because of the relationship. Carter had never met Hester’s adult son. Carter testified that, when he arrived at the restaurant, he saw Hester’s high school son, that he spoke to him, and that the son “nodded like hey or whatever.” Carter saw the high school son leave the restaurant, then ten or fifteen minutes later walk back in with another man he did not know (later identified as Hester’s adult son), then a few minutes later leave the restaurant with the man. After the high school son left the restaurant with his adult brother, Carter said that Riggins called him up to the counter and told him that he thought Hester’s two sons “are about to jump on you.” Carter asked, “For what?” and Riggins said, “I don’t know, but I am telling you.” Carter then asked, “Well, where are they at?” and Riggins told him they were outside. Carter testified that “at that point... I wanted to find out what they were mad about, you know, if they had intentions to physically jump me or whatever.” So Carter said that he started to dial Hester’s phone number and that, “as I dial her number, I hear the [restaurant] door open behind me, and at that very instant... I turn around and [Hester’s sons] are charging at me.” According to Carter, Hester’s sons punched and kicked him for about 90 seconds and then ran out of the restaurant. There was no evidence of any prior altercation, dispute, or animosity between Carter and Hester’s sons. There was no evidence of prior physical attacks, altercations, or disputes of any kind at the restaurant.

1. Under OCGA § 51-3-1, a business proprietor has a duty to exercise ordinary care to keep the premises safe for invitees. This is not a case where a business proprietor had a duty to exercise ordinary care to protect an invitee from a physical attack which was foreseeable to the proprietor because there was a history of prior similar attacks on the premises. See Days Inn of America, Inc. v. Matt, 265 Ga. 235 (454 SE2d 507) (1995). The evidence shows that the alleged attack on Carter arose out of personal animosity that Hester’s sons had for Carter as a result of Carter’s relationship with their mother. Carter does not claim that Riggins and Hester are liable for failing to intervene after the 90-second attack commenced. Rather, Carter claims that Riggins and Hester are liable because they should have reasonably foreseen the attack and exercised ordinary care to prevent it.

Under OCGA § 51-3-1, when a business proprietor should reasonably apprehend that an invitee on the premises is in danger of being injured by the misconduct of another person on the premises, the proprietor has a duty to exercise ordinary care to protect the invitee from injury caused by the misconduct. Shockley v. Zayre of Atlanta, 118 Ga. App. 672, 673 (165 SE2d 179) (1968).

When the conduct of persons on the premises is such that the proprietor from known facts or circumstances should reasonably apprehend danger to other customers, it is his duty to interfere to prevent injury, and the failure to interfere when the proprietor has an opportunity to foresee and prevent injury may constitute negligence. . . . [But] [n]o matter how innocent the plaintiff may he, he is not entitled to recover unless the defendant did something that it should not have done, or failed to do something it should have done pursuant to the duty owed the plaintiff. The owner is not the insurer of the safety of guests.

Id. at 673-674; Adler’s Package Shop v. Parker, 190 Ga. App. 68, 69-70 (378 SE2d 323) (1989).

The only evidence purporting to show that the restaurant proprietors in this case should have foreseen and prevented the physical attack on Carter was Riggins’s testimony that, after Carter arrived at the restaurant, he saw a “strange” or “angry” expression on the high school son’s face, and that the son told Riggins to tell Carter to leave. Riggins did not know if the son knew about Carter’s relationship with his mother, but he speculated that was what the son could be angry about. Evidence shows that the high school son left the restaurant, returned ten or fifteen minutes later accompanied by his adult brother, and that a few minutes later both sons left the premises. At that point, Riggins warned Carter about what he had seen, and told him that the two sons might attack him and that they were somewhere outside the restaurant. Carter immediately attempted to call Hester and, as he was doing so, Hester’s two sons burst into the restaurant and attacked him.

We find no basis on which a reasonable trier of fact could find that Riggins or Hester negligently failed to foresee and prevent the attack, or otherwise failed to exercise ordinary care to keep the premises safe. Hester was not present at the restaurant prior to or during the attack, and there is no evidence that she had any prior knowledge about the attack. What Riggins knew provided reason for him to suspect that the two sons might attack Carter — a possibility that Riggins then warned Carter about, even though the two sons had already left the restaurant. There is no evidence that Riggins knew the two sons planned to return to the restaurant. Shortly after Riggins warned Carter, the two sons burst into the restaurant and immediately attacked him. On this record, no reasonable trier of fact could find that Riggins and Hester “did something that [they] should not have done, or failed to do something [they] should have done pursuant to the duty owed [Carter].” Shockley, 118 Ga. App. at 674. We find as a matter of law that Riggins and Hester could not have reasonably foreseen or prevented the attack on Carter, and that the trial court correctly granted summary judgment against Carter on his cause of action based on OCGA § 51-3-1.

Decided August 23, 2013

Nathan T. Williams, for appellant.

Freeman, Mathis & Gary, Kathleen S. Dod, Sun S. Choy, for appellees.

2. Likewise, there is no basis for Carter’s cause of action asserting that, because Hester’s high school-aged son was employed by the restaurant, Riggins and Hester were vicariously liable for the attack on the basis of respondeat superior.

Pursuant to the principle of respondeat superior, an employer is liable for negligent or intentional torts committed by an employee in furtherance of and within the scope of the employer’s business. Piedmont Hosp. v. Palladino, 276 Ga. 612, 613 (580 SE2d 215) (2003). But the employer is not liable under respondeat superior for an employee’s tort committed “not in furtherance of the employer’s business, but rather for purely personal reasons disconnected from the [employer’s] authorized business....” (Citation and punctuation omitted; emphasis in original.) Id. at 613-614. Because Carter was physically attacked by Hester’s sons for purely personal reasons entirely disconnected from the restaurant’s business, Riggins and Hester cannot be held liable for the attack on the basis of respondeat superior. Travis Pruitt & Assoc., P.C. v. Hooper, 277 Ga. App. 1, 3 (625 SE2d 445) (2005); Piedmont Hosp., 276 Ga. at 614.

Judgment affirmed.

Dillard and McMillian, JJ., concur.


author: ELLINGTON, Presiding Judge.

text:
    A13A1655.
    BELL v. THE STATE.
    (748 SE2d 114)
   ELLINGTON, Presiding Judge.

Aron Bell appeals from the order of the State Court of DeKalb County that denied Bell’s motion to vacate his probated sentence. Bell argues that the court’s previous order modifying a condition of his probation increased his punishment and was, therefore, void. Because the modification was not punitive, as explained below, we affirm the order of the state court.

“Because this appeal presents only questions of law, we perform a de novo review of the trial court’s order.” (Footnote omitted.) Eason v. Dozier, 298 Ga. App. 65 (679 SE2d 89) (2009). This case arises from a domestic dispute involving Bell and his wife (“the victim”). On December 12, 2011, the victim applied for and was granted an ex parte temporary protective order from the Superior Court of DeKalb County. The order contained a “no contact” provision. Bell was served with a copy of this order on the same day it was issued. Two weeks later, the superior court converted the order to a twelve-month, “no contact” protective order.

On January 15,2012, Bell was arrested on misdemeanor charges arising out of an incident in which Bell bit the victim and behaved in a tumultuous manner that placed the victim in fear for her safety. Bell pleaded guilty to the offenses of family violence battery and disorderly conduct in the state court on January 27, and the court sentenced him to 12 days in jail (which he had already served) and to 24 months of probation. As a condition of his probation, Bell was to have “no violent contact” with the victim.

On February 10, Bell was arrested for aggravated stalking based upon a finding of probable cause that Bell had violated the terms of the protective order. After a compliance hearing in the superior court, Bell was taken to the state court for a hearing on a motion to modify the terms of his probation. The solicitor-general asked the state court to change the “no violent contact” provision to “no contact” to be uniform with the protective order. The court agreed to change the terms of Bell’s probation, agreed to apply the change prospectively, and, on the same day, issued an order amending the terms of Bell’s probation to provide for “no contact” with the victim.

On February 18, while he was in custody, Bell was served with an arrest warrant for violating the no contact term of his probation based upon the February 10 aggravated stalking charges. However, when Bell’s probation was revoked on May 24, the revocation was not based upon the new aggravated stalking charges but upon other grounds, including that, between February 10 and 13, Bell made 382 telephone calls to the victim.

On September 6, Bell moved the state court to vacate his modified probated sentence for the offenses of family violence battery and disorderly conduct on the ground that the sentence imposed increased punishment and was, therefore, void. On October 2, the state court held a hearing on the motion. The court denied the motion on November 15, and the instant appeal followed.

A trial court has statutory authority to modify conditions of probation throughout the period of the probated sentence. OCGA § 17-10-1 (a) (5) (A) provides that the sentencing court “shall retain jurisdiction throughout the period of the probated sentence,” and OCGA § 42-8-34 (g) authorizes the court to “modify or change the probated sentence... at any time during the period of time prescribed for the probated sentence to run” and “in any manner deemed advisable by the judge.” See Tyson v. State, 301 Ga. App. 295, 298 (2) (687 SE2d284) (2009) (physical precedent only) (“Probationary terms and conditions can be modified by the trial judge at any time during the probated sentence.”) (citations omitted). “This statutory authority may be limited, of course, by constitutional requirements.” Stephens v. State, 289 Ga. 758, 764 (2) (b) (2) (716 SE2d 154) (2011).

Bell argues that changing a condition of his probation from “no violent contact” to “no contact” violated the double jeopardy clause of the Fifth Amendment because it increased his punishment. However, “[i]t is well established that double jeopardy does not prohibit the imposition of any additional sanction that could, in common parlance, be described as punishment.” (Citation and punctuation omitted.) Stephens v. State, 289 Ga. at 764 (2) (b) (2). Bell has not shown that prohibiting a criminal defendant from having contact with a victim qualifies as a punishment as that term is generally understood in legal parlance. See Hudson v. United States, 522 U. S. 93, 99-100 (118 SCt 488, 139 LE2d 450) (1997) (discussing the “guideposts” for determining whether an ostensibly nonpenal scheme is so punitive in purpose or effect that it amounts to criminal punishment subject to the bar of double jeopardy).

Although Bell may perceive as punishment a condition of probation that restrains him from contacting his victim, the clear and primary purpose of such a condition, as is apparent from the related statutory scheme, is to protect the victim of the crime. See OCGA § 19-13-30 (b) (“The General Assembly has enacted comprehensive legislation addressing family violence, including provision for the issuance of temporary protective orders to protect individuals from violence.”); see also Stephens v. State, 289 Ga. at 765 (2) (b) (2) (“[S]exual offender registry requirements such as those contained in OCGA § 42-l-12[] are regulatory, and not punitive, in nature.”) (citations and punctuation omitted); Hallford v. State, 289 Ga. App. 350, 353-354 (2) (657 SE2d 10) (2008) (banishment may be a reasonable condition of probation if related to protecting the safety of others). Cf. Harris v. State, 261 Ga. 859 (413 SE2d 439) (1992) (restitution is punishment when ordered as part of a criminal sentence, and the trial court cannot increase punishment after sentencing).

Decided August 23, 2013.

Also, in this case, the no contact condition supports the rehabilitative goals of Bell’s probation. As a condition of his probation, Bell was required to complete a domestic violence intervention program within the first two months of his probated sentence. Having no contact with the victim both reduced the risk that he would re-offend and offered him the hope of a reward — renewed contact with his wife — if he successfully completed the domestic violence intervention program. See Staley v. State, 233 Ga. App. 597, 598-601 (505 SE2d 491) (1998) (a probation modification requiring the probationer to submit his out-of-state travel plans to his probation officer did not constitute punishment because it was a rehabilitative, future-oriented condition aimed wholly at effecting future positive behavior); see also Wyche v. State, 197 Ga. App. 148, 149 (2) (397 SE2d 738) (1990) (physical precedent only) (banishment from five counties was not unreasonable as it removed “the offender from a locale in which he previously succumbed” to the temptation that led to his criminal activity).

Because the probation modification did not constitute punishment, the trial court did not err in denying Bell’s motion to vacate his sentence.

Judgment affirmed.

Phipps, C. J., and Branch, J., concur.

Gerard B. Kleinrock, for appellant.

Sherry Boston, Solicitor-General, Nedal S. Shawkat, Assistant Solicitor-General, for appellee.

       The state court judge was unaware of the existence of the protective order (and its “no contact” provision) issued by the superior court.

       “[O]nce a person has entered upon the execution of his sentence, the court is without power to change it by increasing the punishment. This is considered a violation of the Fifth Amendment prohibition against double punishment or jeopardy.” (Citations omitted.) Inman v. State, 124 Ga. App. 190, 192 (1) (183 SE2d 413) (1971).

       In Article 2 of Chapter 1 of Title 42 of the Georgia Code, the General Assembly declared that the sex offender registry was created to protect the public and that the “designation of a person as a sexual offender is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from the conviction of certain crimes.”


text:
    A13A1647.
    WIGGINS v. THE STATE.
    (748 SE2d 120)
   ANDREWS, Presiding Judge.

Reginald Wiggins appeals from the judgment of conviction entered on a jury verdict finding him guilty of the charge of possession of marijuana with intent to distribute. Wiggins contends that there was insufficient evidence to support the guilty verdict, and that the trial court erred by imposing a Fourth Amendment waiver as a condition of the probation portion of his sentence. For the following reasons, we find no error and affirm.

1. Wiggins contends there was insufficient evidence to sustain his conviction on the charge of possession of marijuana with intent to distribute, arguing that the evidence was insufficient to prove he possessed marijuana or intended to distribute it.

Wiggins was stopped in his vehicle by Albany Police Department officers after they saw him run a stop sign. At the traffic stop, the officers discovered that Wiggins was wanted on a probation warrant and detained him. After detaining him, Officer Flowers conducted an initial pat-down type search of Wiggins who was wearing multiple layers of clothing, including blue jeans and an “overall jumpsuit.” No contraband was found on Wiggins in this search. Wiggins was then handcuffed, placed in the back of Flowers’s patrol car, and transported to jail. A more thorough strip-search of Wiggins was conducted at the jail, which also produced no contraband.

After transferring Wiggins to the custody of deputies at the jail, Flowers inspected the back of his patrol car and removed the back seat. When he removed the back seat, Flowers found a plastic bag containing seven smaller plastic bags that each contained suspected marijuana. Evidence showed that Flowers had inspected the backseat area of the car prior to transporting Wiggins, found nothing, and had not transported anyone else except Wiggins after the inspection. Another officer testified that, depending on the clothing being worn by a suspect, it was not uncommon for items on the suspect’s person to be missed by an initial pat-down search.

Similar transaction evidence of two prior arrests was entered at trial. Wiggins was previously arrested in April 2003 and charged with possession of marijuana with intent to distribute after officers smelled marijuana coming from his car. When Wiggins was arrested, scales and marijuana were found in his car. After police transported Wiggins to jail in the back seat of a patrol car, marijuana was found in the back seat of the car. Marijuana was also found in Wiggins’s underwear at the jail. Wiggins was again arrested in November 2003 and charged with possession of marijuana with intent to distribute after officers found 23 baggies of marijuana in Wiggins’s pants in his crotch area. Wiggins pled guilty on both occasions. The State also produced testimony from a police officer certified as a marijuana examiner, who testified that the substance in the bags found in the back seat of Flowers’s police car tested positive for marijuana. The State produced testimony from two police officers, including an officer experienced in drug transactions, that packaging of marijuana in multiple bags was indicative of an intent to sell or distribute the marijuana.

Wiggins denied possessing the marijuana found in the back of the patrol car, and testified that he saw Flowers remove items from the back seat of the patrol car and place them in the trunk before seating him in the rear of the car. Flowers testified that he did not recall removing any item from the back seat before transporting Wiggins.

“No person shall be convicted of a crime unless each element of such crime is proved beyond a reasonable doubt.” OCGA § 16-1-5. Where the sufficiency of the evidence is challenged, this Court reviews the evidence in a light most favorable to the verdict, deferring to the jury’s assessment of the credibility of the evidence; a defendant is entitled to reversal of a conviction if no rational trier of fact could find beyond a reasonable doubt that the defendant committed the elements of the offense. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). Furthermore, “[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.” Former OCGA § 24-4-6.

Applying these standards, we conclude that the evidence was sufficient to allow the jury to find that Wiggins was in possession of the marijuana when he was patted down by the officer prior to being transported in the back seat of the patrol car, but the pat-down failed to discover the marijuana on his person; and that, while Wiggins was being transported in the car, he placed the marijuana behind or under the back seat. Additional evidence that the marijuana found in the back-seat area of the car was packaged in seven individual bags was sufficient to allow the jury to find that Wiggins possessed the marijuana with intent to distribute. Along with the similar transaction evidence, the evidence was sufficient to allow the jury to find that the proved facts were consistent with Wiggins’s guilt on the charged offense and excluded every reasonable hypothesis save that of guilt; and that Wiggins was guilty beyond a reasonable doubt of the felony offense of possession of marijuana with intent to distribute in violation of OCGA § 16-13-30 (j). Jackson v. Virginia, supra; former OCGA § 24-4-6.

Decided August 26, 2013.

Kevin C. Armstrong, for appellant.

Gregory W. Edwards, District Attorney, for appellee.

2. Wiggins contends that the trial court erred by imposing a Fourth Amendment waiver as a condition of the probation portion of his sentence.

“A sentence is void if the court imposes punishment that the law does not allow.” (Citation and punctuation omitted.) Johnson v. State, 298 Ga. App. 639, 640 (680 SE2d 675) (2009). At the sentencing hearing, at which Wiggins was represented by counsel, the trial court informed Wiggins that waiver of his Fourth Amendment right to be free from unreasonable searches and seizures was a condition of his probation. Neither Wiggins nor his counsel objected. Under these circumstances, Wiggins impliedly consented to a waiver of his Fourth Amendment rights, and the waiver was a valid condition of his probation sentence. Johnson v. State, 248 Ga. App. 454, 455 (546 SE2d 562) (2001).

Judgment affirmed.

Dillard and McMillian, JJ., concur.

       Wiggins also contends that, because the State presented no evidence that the weight of the marijuana was greater than one ounce (and in fact presented no evidence at all as to the weight of the marijuana), judgment should have been entered and sentence imposed for a misdemeanor instead of a felony. We disagree. Under OCGA § 16-13-30 (j) (2), “[ejxcept as otherwise provided in subsection (c) of Code Section 16-13-31 or in Code Section 16-13-2, any person who violates this subsection [by possessing marijuana with intent to distribute] shall be guilty of a felony....” The trafficking provisions of OCGA § 16-13-31 are not applicable in this case. Although OCGA § 16-13-2 (b) provides that possession of one ounce or less of marijuana is a misdemeanor, the separate offense of possession of marijuana with intent to distribute (as set forth in OCGA § 16-13-30 (j) (1)) is a felony which does not require proof of the quantity of marijuana. See State v. Jackson, 271 Ga. 5 (515 SE2d 386) (1999); Johnson v. State, 296 Ga. App. 697, 698 (675 SE2d 588) (2009).


text:
    A12A0716, A12A0717.
    HUNTER, MACLEAN, EXLEY & DUNN, P.C. v. ST. SIMONS WATERFRONT, LLC; and vice versa.
    (748 SE2d 131)
    Decided August 27, 2013.

      Edenfield, Cox, Bruce & Classens, Susan W. Cox, Marc M. Bruce, Benjamin J. Colson, for appellant.

      Jones, Jensen & Harris, Jenny E. Jensen, Weissman, Nowack, Curry & Wilco, John G. Nelson, for appellee.
   Dillard, Judge.

In St. Simons Waterfront, LLC v. Hunter, Maclean, Exley & Dunn, P.C., 293 Ga. 419 (746 SE2d 98) (2013), the Supreme Court of Georgia vacated our previous decision in Hunter, Maclean, Exley & Dunn, P.C. v. St. Simons Waterfront, LLC, 317 Ga. App. 1 (730 SE2d 608) (2012), and remanded the case to this Court with direction that we remand to the trial court for further proceedings not inconsistent with the Supreme Court’s opinion. Accordingly, we adopt the judgment of the Supreme Court as our own, vacate the trial court’s decision, and remand the case for further proceedings consistent with the opinion of the Supreme Court.

Judgment vacated and case remanded with direction.

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