author: Rickman, Judge.

text:
    A15A2327.
    HART et al. v. SIRMANS.
    (784 SE2d 67)
   Rickman, Judge.

Undray Sirmans filed suit against law enforcement officers Capers Green and Jason Hart, in their individual capacities, alleging claims of malicious prosecution, false arrest, unreasonable force, and giving false information. Green and Hart appeal the trial court’s denial of summary judgment as to their defense of official immunity and as to all of Sirmans’ claims. Because we conclude that Officers Green and Hart were entitled to official immunity from suit, we reverse.

To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the evidence and all reasonable inferences and conclusions drawn therefrom, viewed in the nonmovant’s favor, warrant judgment as a matter of law. We review de novo the trial court’s ruling on a motion for summary judgment.

(Footnote omitted.) Marshall v. Browning, 310 Ga. App. 64-65 (712 SE2d 71) (2011).

So viewed, the evidence showed that on the morning in question, Sirmans was copying pirated music and movies in order to sell them at the barbershop. In the afternoon, Green, a special agent with the Henry County Police Department’s Narcotics Unit, received information from a confidential informant that a black male known as “Dre,” approximately six feet and two inches tall, would be transporting marijuana and pills on a bicycle in the area of Willow Lane in McDonough, Georgia. The confidential informant told Special Agent Green that “Dre” had a criminal history and could be violent.

Special Agent Green informed Hart, an officer with the same police department, of the information that the confidential informant provided and asked for his assistance in locating the suspect. Shortly after speaking with Special Agent Green, Officer Hart observed Sirmans, a black male matching the physical description given by the confidential informant, riding a bicycle near Willow Lane. Officer Hart approached Sirmans and asked him if he knew anything about cars being broken into at Walmart, and Sirmans, by his own admission, “became very irate.” Sirmans responded, “get the hell out of here, you crazy.” At some point, Sirmans claims that Officer Hart used a racial epithet toward him.

Officer Hart directed Sirmans to put his hands on the patrol car and asked him for identification. Sirmans initially put his hands on the car hut, by his own admission, began “talking with his hands” and pulled his hands off the hood of the patrol car. Another officer arrived and he, along with Officer Hart, took Sirmans to the ground after he refused to comply with their instructions to keep his hands on the car. Sirmans’ cell phone and sunglasses fell to the ground.

After Officer Hart placed Sirmans in custody, he surveyed the scene and observed a pair of sunglasses, a cell phone, and a paper bag on the ground. The paper bag contained two plastic bags with marijuana and prescription pills wrapped in foil. These drugs were consistent with the informant’s description of the drugs that “Dre” would be transporting.

Sirmans was placed under arrest for violating the Georgia Controlled Substances Act. He admitted that the sunglasses and cell phone found next to the paper bag were his, but denied having knowledge of the paper bag.

Sirmans complained that his arm hurt, and EMS arrived on the scene and evaluated him. Sirmans had an abrasion on his arm, but verbally refused treatment.

Officer Hart “vehemently” denied uttering a racial epithet toward Sirmans during the encounter. However, in viewing the evidence in the light most favorable to Sirmans, we must assume that the epithet was uttered.

Sirmans sued Special Agent Green and Officer Hart, alleging claims of malicious prosecution, false arrest, unreasonable force, and giving false information, and seeking punitive damages. Special Agent Green and Officer Hart filed a motion for summary judgment, asserting that official immunity precluded Sirmans’ claims. The trial court denied their motion in a two-sentence order, which also did not dispose of the claim of “giving false information” which is not a tort recognized by Georgia law. It is from this order that Special Agent Green and Officer Hart now appeal.

1. Special Agent Green and Officer Hart argue that the trial court erred in denying summary judgment on their official immunity defense, which bars all claims. We agree.

Official or “qualified” immunity protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption. In Georgia, a public officer may be personally liable only for ministerial acts negligently performed or for discretionary acts performed with malice or an intent to injure.

(Punctuation and footnotes omitted.) Marshall, 310 Ga. App. at 67.

It is undisputed that Special Agent Green and Officer Hart were acting in their discretionary function as law enforcement officers when investigating Sirmans for violations of the Georgia Controlled Substances Act. “Thus, [they are] entitled to official immunity from [Sirmans’] claims, absent a showing that [they] acted with actual malice or intent to cause injury.” (Footnote omitted.) Tittle v. Corso, 256 Ga. App. 859, 861-862 (1) (569 SE2d 873) (2002).

Actual malice requires more than harboring bad feelings about another. While ill will may bean element of actual malice in many factual situations, its presence alone cannot pierce official immunity; rather, ill will must also be combined with the intent to do something wrongful or illegal. To hold otherwise would mean that any plaintiff who suffers damages as the result of an act of a public officer or employee can pierce that State defendant’s official immunity solely on the basis of the defendant’s rancorous personal feelings towards the plaintiff, even though the defendant’s actions in regard to the disliked plaintiff may have been completely lawful and legally justified. Equating actual malice with ill will would lead to this absurd result, contrary to well-established rules of constitutional construction.

(Citations omitted.) Adams v. Hazelwood, 271 Ga. 414, 415 (2) (520 SE2d 896) (1999).

The phrase “actual intent to cause injury” has been defined in a tort context to mean an actual intent to cause harm to the plaintiff, not merely an intent to do the act purportedly resulting in the claimed injury. This definition of intent contains aspects of malice, perhaps a wicked or evil motive.

(Punctuation and footnote omitted.) Selvy v. Morrison, 292 Ga. App. 702, 705 (665 SE2d 401) (2008).

Thus, it is not sufficient that Sirmans produce evidence from which a jury could find ill will, or rancorous personal feelings toward him. Rather, any such evidence must be combined with the intent to do something wrongful or illegal.

[Special Agent Green and Officer Hart’s] subjective feeling[s] or mental state [s] [are] irrelevant unless [they] prompt [ ] [them] to intend to do a “legally unjustifiable action.” We therefore must examine the record to determine whether [Special Agent Green and Officer Hart’s] action [s] [were] “legally unjustifiable.”

(Citation and punctuation omitted.) Delong v. Domenici, 271 Ga. App. 757, 759 (1) (610 SE2d 695) (2005).

Prior to Sirmans’ arrest, Special Agent Green received information from a confidential informant whom he considered to be reliable, that “Dre” would be transporting marijuana and prescription pills on a bicycle near Willow Lane in McDonough, Georgia. Special Agent Green communicated this information to Officer Hart, and requested that Officer Hart assist him in locating and detaining this individual. Officer Hart was entitled to rely on the information relayed to him by Special Agent Green. See Brown v. GeorgiaCarry.Org, Inc., 331 Ga. App. 890, 895 (770 SE2d 56) (2015); see also Gay v. State, 233 Ga. App. 738, 739 (2) (505 SE2d 29) (1998).

Officer Hart subsequently went to the location where “Dre” was supposed to be transporting the drugs and encountered Undray Sirmans. Sirmans matched the physical description given by the confidential informant, was riding a bicycle as described by the confidential informant, and was in the area near Willow Lane that the confidential informant said “Dre” would be. Therefore, Officer Hart had reasonable suspicion to believe Sirmans was transporting illegal drugs, and to detain Sirmans for further investigation. See Gray v. State, 252 Ga. App. 301, 302-303 (556 SE2d 194) (2001) (tip from confidential informant and corroborated by arresting officer that defendant would be driving specific vehicle at specific time on specific road with specific amount of cocaine was sufficient to authorize an investigating stop of defendant’s vehicle); see also Gordon v. State, 242 Ga. App. 50, 52 (1) (528 SE2d 838) (2000).

Sirmans admits that when he was approached by Officer Hart, he “became very irate” and told Officer Hart to “get out of here, you crazy.” Sirmans further admits that when he was asked to stand with his hands on Officer Hart’s patrol vehicle, he did not comply and moved his hands off the hood of the vehicle. Officer Hart, along with another officer, took Sirmans to the ground for not complying. “The right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” (Punctuation and footnote omitted.) Tittle, 256 Ga. App. at 863 (1).

Decided March 15, 2016.

Williams, Morris & Waymire, Terry E. Williams, Jason C. Waymire, for appellants.

C. Victor Long, for appellee.

After detaining Sirmans, illegal drugs consistent with the type that the confidential informant stated that Sirmans would be carrying were found, with Sirmans’ belongings. Sirmans admitted that the sunglasses and cell phone were his, but denied knowledge of drugs. Under these circumstances, the arrest of Sirmans for violations of the Georgia Controlled Substances Act and obstruction was legally justifiable. See Sanchez v. State, 197 Ga. App. 470, 471 (1) (398 SE2d 740) (1990).

In the context of these facts, there is absolutely no evidence from which to conclude that Special Agent Green or Officer Hart acted with actual malice or an intent to injure Sirmans. It is undisputed that neither had interacted with Sirmans before the date in question, and the sole evidence of malice asserted by Sirmans is Officer Hart’s alleged use of a racial epithet.

Even after giving Sirmans’ evidence every benefit of the doubt, however, we cannot conclude that his testimony regarding the use of a racial epithet, combined with no other evidence of any intent to do something wrongful or illegal, could authorize a finding of “actual malice” sufficient to pierce the shield of official immunity. The trial court erred in denying Special Agent Green and Officer Hart’s motion for summary judgment on the basis of official immunity. See Delong, 271 Ga. App. at 759 (1) (reversing denial of summary judgment after finding the police officer was entitled to official immunity); see also Stephens v. Zimmerman, 333 Ga. App. 586, 591-593 (1) (b) (774 SE2d 811) (2015).

2. Because of our ruling in Division 1, we need not address Special Agent Green and Officer Hart’s remaining arguments.

Judgment reversed.

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

       “Giving false information” is not a tort recognized under Georgia law, and Sirmans withdrew the claim on appeal. Nonetheless, the trial court denied summary judgment as to all claims.

       Sirmans had previously pled guilty to second degree murder in Florida.

       Sirmans’ testimony is in conflict as to when the epithet was said. We need not resolve the issue as to when the epithet was used because it is not pertinent to our holding.

       The third officer is not part of this suit.

       These pills were later identified by the crime lab as dihydrocodeinone (hydroeodone), a Schedule II controlled substance, and carisoprodol, a Schedule IV controlled substance. See OCGA §§ 16-13-26 (1) (A) (ix); 16-13-28 (a) (2.25). •

       See OCGA § 16-13-30 (a). Sirmans was prosecuted by the Henry County District Attorney’s Office and was acquitted.


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A15A2275.
    ELLIOTT v. RESURGENS, P.C. et al.
    (782 SE2d 867)
   Dillard, Judge.

Sean Elliott appeals from a jury verdict in favor of Resurgens, P.C., d/b/a Resurgens Orthopaedics (“Resurgens”) and Tapan K. Daftari, M.D. (“defendants”), in his medical-malpractice action against them, arising from allegedly negligent treatment that he received after undergoing spinal surgery (during which he became paralyzed from the waist down). In three separate enumerations of error, Elliott argues that the trial court erred in excluding the testimony of a witness who was not specifically named in the pre-trial order (“PTO”) or disclosed during discovery. We agree that the trial court erred, and for the reasons set forth infra, reverse.

Construed in favor of the jury’s verdict, the evidence shows that, in 2004, Elliott began seeing Daftari regularly to receive medical treatment for neck and back pain. In late 2009, Elliott visited Daftari because he was experiencing increased pain in his neck and lower back. At that time, Daftari diagnosed Elliott with degenerative disc disease and informed him that he needed surgery on his posterior cervical spine. Thereafter, on December 1, 2009, Daftari performed the surgery, which went as planned with no complications, and Elliott was discharged three days later. At the time of his discharge, Elliott did not have any neurological deficits.

Approximately two weeks after the surgery, on December 15, 2009, Elliott’s fiancée arrived home to find him “unconscious or in an altered state of consciousness,” and he was immediately taken to the emergency room. By the time Elliott arrived at the hospital, he was in “very critical condition,” and as a result, he was “intubated or placed on a ventilator ....” Cultures obtained from Elliott’s surgical wound revealed that it was infected, and he was admitted to the hospital for post-operative treatment. Later that same evening, Daftari evaluated Elliott’s wound and reviewed a CT scan that had been ordered by a radiologist. After doing so, Daftari believed that Elliott had “an abscess in the posterior cervical area of the post-op wound.”

Elliott was initially treated with antibiotics, and the next day, December 16, 2009, Daftari performed a drainage procedure to clean out any infections in Elliott’s surgical wound and neck. After this procedure, Elliott remained in the hospital for several days, during which time Daftari “assessed and examined” him daily. Then, on December 19, 2009, Elliott underwent another surgery to “make sure that there [was] nothing collected on [his] spinal cord again” and for “final closure” of his wound. And after this surgery, it seemed to Daftari that, overall, Elliott was “improving” and “that the infection was being conquered ....” Indeed, as of December 19 and 20, Elliott appeared to be “regaining his strength,” and the operations appeared to be “helping him.”

According to hospital records, on the morning of December 21, 2009, Daftari operated on another patient from 8:09 a.m. until 11:03 a.m., and afterward, Daftari visited Elliott’s hospital room around 11:30 a.m. In evaluating Elliott, Daftari discovered that he had decreased movement in his legs, but at that time, Daftari did not believe that it was an emergency or that Elliott had lost the use of his legs. Nevertheless, Daftari ordered a cervical magnetic resonance imaging (“MRI”) of Elliott to be conducted “as soon as possible.” While waiting on the cervical MRI results, Daftari performed a second surgery that day on a different patient that lasted from 12:44 p.m. to 5:30 p.m.

At 5:20 p.m., a nurse notified Daftari that Elliott’s temperature was increasing and that his inability to move his lower extremities was worsening. After Daftari’s second surgery was completed, he visited Elliott’s bedside some time before 6:00 p.m. As of this visit, Daftari had still not received the results of Elliott’s cervical MRI from the radiologist, but when he eventually did, he learned that the MRI was negative and did not confirm the hematoma that he believed was the most likely cause of Elliott’s decreased ability to move his legs. As a result, he ordered an MRI of Elliott’s thoracic and lumbar spine, and the results of that MRI, which were released at 8:30 p.m., showed an expansion of Elliott’s spinal cord, which causes compression of the spinal cord. Then, after consulting with a neurosurgeon, Daftari decided to perform a thoracic.laminectomy, which is a surgery intended to make more room for Elliott’s expanding spinal cord. Daftari performed the surgery that evening from around 9:30 p.m. until midnight, and in doing so, he discovered an abscess on Elliott’s spinal cord. Ultimately, despite the surgery, Elliott was unable to recover any neurologic function, and he became paralyzed from the waist down.

Approximately two years later, on December 15, 2011, Elliott filed a medical-malpractice complaint against Resurgens and Daftari, alleging that his paralysis was caused by Daftari’s negligent treatment of his post-operative spinal infection. And in late January 2012, Elliott filed an amended complaint to include an expert affidavit from. Michael Dogali, a specialist in neurological surgery. Dogali averred, inter alia, that Daftari’s failure to obtain timely imaging studies to rule out spinal-cord compression and abscess, his failure to timely evaluate Elliott, and his failure to timely and appropriately react to evaluations and testing proximately caused or significantly contributed to Elliott’s resulting paraplegia. Resurgens and Daftari answered the complaint, denying liability and asserting numerous affirmative defenses. Then, after an extended discovery period, the case proceeded to a jury trial. At the conclusion of that trial, the jury returned a verdict in favor of Resurgens and Daftari, and the trial court entered a final judgment affirming its verdict. This appeal by Elliott follows.

In three separate enumerations of error, Elliott argues that the trial court erred in excluding the testimony of Savannah Sullivan, a nurse who worked at the hospital where Elliott was treated. Specifically, Elliott argues that the trial court erred in excluding this witness because (1) although Sullivan was not specifically named in the PTO, the PTO allowed both parties to call his medical providers, any person named in the medical records, and any rebuttal witnesses; (2) he should have been allowed to amend the PTO to include Sullivan’s name; and (3) the court was required to employ remedial measures other than the complete exclusion of Sullivan’s testimony.

As a preliminary matter, we note that, contrary to Elliott’s suggestion, the trial court did not exclude Sullivan’s testimony on the basis that she was not specifically named in the PTO. Although the defense argued, inter alia, that Sullivan’s testimony shouldbe excluded on that basis, the court ultimately excluded her testimony because she was not identified or disclosed during the “extensive discovery that ha[d] been allowed in this case.” And when Elliott later moved the trial court to reconsider this ruling, the court denied the motion, noting that its goal was to prevent “an unfair burden of surprise [when] there [had] been absolutely no disclosure of [Sullivan] at any time.” Thus, because the trial court did not exclude Sullivan’s testimony on the basis that Elliott failed to specifically name her in the PTO as a potential witness, his first two enumerations of error have no bearing on the ruling being appealed, and we address only his third claim of error.

At the outset, we note that the admission of evidence is “within the sound discretion of the trial court and appellate courts will not interfere absent abuse of that discretion.” Nevertheless, we reiterate that evidence having a tendency to establish facts in issue is “relevant and admissible, and no matter how slight the probative value, our law favors admission of relevant evidence.”

In the case sub judice, Elliott’s medical-malpractice claim was based entirely on Daftari’s alleged delay in recognizing, investigating, and treating his thoracic abscess. And at trial, there was conflicting evidence regarding when Daftari first learned that Elliott had decreased ability to move his legs. Indeed, as previously noted, hospital records reflected that, on the morning of December 21, 2009, Daftari operated on another patient that day from 8:09 a.m. until 11:03 a.m. Additionally, Daftari testified that he was unaware Elliott was experiencing decreased movement in his legs until after that surgery at around 11:30 a.m., when he examined Elliott. But Elliott’s medical records include an electronic entry, dated December 21, 2009 at 9:00 a.m., stating that Daftari was at Elliott’s bedside and was aware that he was “unable to move bilateral lower extremities.” And while Elliott’s theory at trial was that Daftari’s failure to act more quickly to discover and treat his condition resulted in his paralysis, his own expert conceded that, unless Daftari was aware of Elliott’s worsening condition at 9:00 a.m., Daftari would not be “at fault.” The defendants’ experts agreed that the timing of when Daftari learned of Elliott’s worsening condition was crucial. Specifically, they maintained that Daftari only became aware of Elliott’s deteriorating condition around 11:30 a.m., and as a result, his treatment of Elliott met the applicable standard of care. Nevertheless, one of the defense experts admitted that, generally, “the earlier [a] thoracic abscess is diagnosed and treated, the better . . . .”

During his case-in-chief, Elliott called Daftari to testify for the purposes of cross-examination and asked him only one question: Whether he was at Elliott’s bedside at 9:00 a.m. on December 21, 2009. When Daftari responded that he was not, Elliott then attempted to call Sullivan as his next witness. The defense objected, arguing that Sullivan’s testimony should be excluded because her name was not disclosed during discovery or listed in the PTO. According to Elliott, Sullivan was a nurse at the hospital where he had been treated, and she would testify that she was indeed with Daftari at Elliott’s bedside at 9:00 a.m. on December 21, 2009. Ultimately, the trial court excluded Sullivan’s testimony, even though it directly related to the material issue of when Daftari was first aware of Elliott’s decreased ability to move his legs, because Elliott never disclosed her name during the lengthy discovery period.

As previously noted, Elliott now argues that the trial court’s ruling was in error because it failed to employ less harsh remedial measures than complete exclusion of Sullivan’s probative testimony. And Elliott is indeed correct that, in Georgia, “exclusion of probative trial evidence is not an appropriate remedy for curing an alleged discovery omission.” In fact, this is true even when there is no excuse for a party’s failure to “faithfully engage in discovery in compliance with [an] extended discovery deadline.” Instead, if the trial court believed that Elliott failed to properly comply with discovery, “the only appropriate remedy was postponement of trial or a mistrial.” As we have previously explained,

[when] objection was made to the testimony of certain previously undisclosed witnesses, the proper procedure when they were called to testify was not to object to their testifying or to the admission of their testimony, but to move for a postponement of the trial for a sufficient length of time to enable the defendant to interview them, check the facts to which they would testify, and, if indicated, arrange to secure rebuttal evidence or to impeach them.

Here, when Elliott called Sullivan to testify, the defendants did not move to postpone the trial or for a mistrial, but instead sought exclusion of her testimony because she had not previously been disclosed as a potential witness. In response to the defendants’ concerns, Elliott suggested, as a curative measure, that the trial court allow the defendants to depose or question Sullivan before she testified. But the court, declined to do so, noting that there was an agreed upon trial schedule, that there had already been significant setbacks in the proceedings, and that the court was working hard to keep the trial “on track.” In light of the binding precedent set forth supra, the trial court abused its discretion in excluding Sullivan’s probative and material testimony because doing so was not an appropriate remedy for Elliott’s alleged failure to properly comply with discovery.

Decided March 4, 2016

Reconsideration denied March 16, 2016

Andy Clark Law, M. Andrew Clark; Eric J. Hertz, P. C., Eric J. Hertz, for appellant.

In concluding that Elliott is entitled to a new trial, we fully “recognize and deplore the significant burden a retrial will impose, not only on the parties, but on the community as well.” Nevertheless, this Court must remain “steadfast in its commitment to safeguarding the sacrosanct and cherished right to a fair and impartial jury trial.” And in light of the trial court’s clear abuse of its discretion in excluding relevant and material testimony in this case, we are constrained to reverse the jury’s verdict and remand the case for a new trial.

Judgment reversed and case remanded with direction.

Ellington, P. J., and Mercier, J., concur.

Weathington Smith, Paul E. Weathington, C. Matthew Smith, for appellees.

        See, e.g., Amu v. Barnes, 286 Ga. App. 725, 725 (650 SE2d 288) (2007).

       It is worth noting that the PTO in this case provided that either party could call as a witness “[a]ny healthcare professional whose name appears in” Elliott’s medical records, and as admitted by the defendants, Sullivan’s name appears in those records in at least “a couple [of] places.” Nevertheless, as discussed supra, the trial court’s ruling to exclude Sullivan’s testimony was not based on whether she was included by name in the PTO as a potential witness for the plaintiff.

        City of Atlanta v. Bennett, 322 Ga. App. 726, 727 (1) (746 SE2d 198) (2013) (punctuation omitted); accord Wells v. Roberts, 225 Ga. App. 112, 114 (2) (483 SE2d 339) (1997).

         Bennett, 322 Ga. App. at 728 (1) (punctuation omitted); accord Robert Stovall Family, L.P. v. Carroll Cty. Water Auth., 255 Ga. App. 223, 224 (564 SE2d 763) (2002).

       Bennett, 322 Ga. App. at 731 (1) (punctuation omitted); accordfílmíera. Nissan Motor Co. of Japan, 229 Ga. App. 729,729 (1) (494 SE2d 751) (1997); see also Hart v. NorthsideHosp., Inc., 291 Ga. App. 208, 208 (661 SE2d 576) (2008) (noting that binding precedent holds that exclusion of evidence is not an appropriate remedy for curing a discovery omission). But see Trustees of Trinity College v. Ferris, 228 Ga. App. 476, 480 (6) (491 SE2d 909) (1997) (“Exclusion of a witness is proper only where there has been a deliberate suppression of the witness’ name.” (punctuation omitted)). We note that, while the defendants argued to the trial court that Elliott intentionally withheld Sullivan’s name during discovery in order to “ambush” them at trial, her name appeared in Elliott’s medical records, which were available to both parties, as a nurse who treated him on December 21, 2009.

        Hart, 291 Ga. App. at 209 (1).

        Bennett, 322 Ga. App. at 731 (1); accord Thakkar v. St. Ives Country Club, 250 Ga. App. 893, 894 (1) (b) (553 SE2d 181) (2001); Hunter, 229 Ga. App. at 730 (1).

        Shepherd Interiors v. City of Atlanta, 263 Ga. App. 869, 870 (1) (589 SE2d 640) (2003), quoting Jones v. Atkins, 120 Ga. App. 487, 491 (2) (171 SE2d 367) (1969); see Hanna Creative Enterprises, Inc. v. Alterman Foods, Inc., 156 Ga. App. 376, 379 (2) (274 SE2d 761) (1980).

        See Bennett, 322 Ga. App. at 731-32 (1) (reversing a jury verdict and granting a new trial because the trial court abused its discretion in excluding material testimony of a witness who had not been disclosed during discovery); Infinite Energy, Inc. v. Cottrell, 295 Ga. App. 306, 308-09 (2) (671 SE2d 294) (2008) (holding that the trial court did not abuse its discretion in denying a motion to exclude evidence that should have been disclosed during discovery when the moving party did not request a mistrial or a postponement and the alleged discovery violations did not authorize an evidentiary exclusion); Hart, 291 Ga. App. at 209-10 (1) (holding that the trial court abused its discretion in excluding testimony of experts who were untimely identified, noting that a party’s failure to comply with discovery deadlines may not be remedied by the exclusion of probative trial evidence); Hunter, 229 Ga. App. at 730 (1) (holding that the only proper remedy for a party’s failure to update discovery responses to include an expert witness was postponement of trial or a mistrial).

        Six Flags Over Ga. II L.P. v. Martin, 335 Ga. App. 350, 367 (3) (780 SE2d 796) (2015) (punctuation omitted).

        Id. (punctuation omitted).


author: Branch, Judge.

text:
    A15A1974.
    BYNES v. THE STATE.
    (784 SE2d 71)
   Branch, Judge.

On appeal from his conviction for armed robbery and harming a police dog, Devante Bynes argues that the evidence was insufficient and that the trial court erred when it refused Bynes’s requests for charges on the justified use of force in self-defense and robbery by intimidation as a lesser included offense. We find no merit in these assertions, but we vacate the portion of Bynes’s sentence pertaining to his conviction for harming a police dog, which imposed a greater sentence than that allowed by law, and remand for resentencing.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004) (citation omitted). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted).

So viewed, the record shows that late on the evening of May 21, 2013, a man locked up the Savannah restaurant where he worked and began walking home through a local park. As the man did so, he noticed that Bynes and two other men, all of whom were dressed in dark clothing, were approaching him from behind. Bynes stepped in front of the victim and aimed a gun at his face. The second man ordered the victim to hand over his possessions “or we’re f**king going to shoot you”; the third man stood behind the victim. Bynes and his confederates then rummaged through the victim’s pockets and backpack, taking his watch, wallet, cell phone, keys, and the backpack. The men then ordered the victim to run away or risk being shot. As he ran, the victim first saw a young man on a skateboard and then a pedestrian, whom the victim asked to call 911. As the pedestrian did so, the victim looked back and saw the same three robbers surround the skateboarder. The robbers pointed a gun at the second victim, demanded all his possessions, and obtained his backpack, cell phone, some marijuana, and $10 in cash.

A police detective in an unmarked patrol car with its lights out also witnessed three men surround and rob the second victim. As the robbers fled, the detective pursued them slowly by car for several blocks, noting that Bynes was wearing a sleeveless undershirt and appeared to be hiding something under it. When the robbers realized that they were being followed, they began running in different directions. The detective parked his patrol car, activated his lights, ordered the men to stop, and ran after one of Bynes’s co-defendants, Josephewa Ramsey. After apprehending Ramsey, the detective went to the assistance of a canine officer, who had already apprehended co-defendant Devon Tarver and was now pursuing Bynes.

When the police dog tracked Bynes to a crawl space under a residence, the canine officer ordered the dog to go into the space and to bite Bynes, which the dog did. Before the canine officer issued a stop command, Bynes put his hands around the dog’s neck and began twisting its neck. The canine officer told Bynes to stop fighting the dog, but Bynes did not do so. Instead, he continued to choke the dog until it lost consciousness and went limp. The canine officer then pulled the dog out of the crawl space and immediately took it to an animal hospital, where the dog recovered from its injuries. The detective apprehended Bynes, who had suffered bite injuries to his legs and was bleeding. A search of the area produced keys, a cell phone, and a black wallet belonging to the first victim. In a cinder block near the park, police also recovered a black pistol with a magazine clip. The first victim identified Bynes at the scene as the man who had robbed him at gunpoint, and the detective identified Bynes as one of the men who had surrounded the second victim.

Bynes was charged with two counts of armed robbery and one count each of obstruction, harming a police dog, and escape. The trial court granted a directed verdict as to the obstruction count, and the escape count was nolle prossed. A jury found Bynes guilty of both counts of armed robbery and the count of harming a police dog. Bynes was convicted and sentenced to life in prison with five years to serve concurrently for harming the police dog. His motion for new trial was denied.

1. Bynes argues that the evidence was insufficient to support his conviction as to both (a) armed robbery and (b) harming a police dog. We disagree.

(a) Bynes attacks the jury’s verdict as to the armed robbery counts by pointing out inconsistencies in the evidence against him and by attacking the credibility of the witnesses. Such matters are for the jury, and not this Court, to resolve. See Hogan v. State, 330 Ga. App. 596, 598 (1) (a) (768 SE2d 779) (2015). The evidence here included the first victim’s testimony that Bynes pointed a gun at him and demanded his possessions, the detective’s testimony that he saw Bynes and the two other robbers attack the second victim, the second victim’s testimony that he was also robbed at gunpoint, and Bynes’s presence at and flight from the scene. This evidence was sufficient to sustain Bynes’s conviction for armed robbery. Jackson, 443 U. S. at 319 (III) (B); Hogan, 330 Ga. App. at 598 (1) (a) (victim’s testimony that defendant robbed him with a gun was sufficient to sustain a conviction for armed robbery); Drake v. State, 266 Ga. App. 463, 465 (1) (597 SE2d 543) (2004) (defendant’s conduct before, during, and after an armed robbery supported a finding that he was guilty of aiding and abetting that crime).

(b) Bynes was charged with violating OCGA § 16-11-107 in that he “knowingly and intentionally cause[d] serious physical injury” to the dog in question. OCGA § 16-11-107 defines the offense of harming a law enforcement animal in four degrees, including as follows:

(b) A person commits the offense of harming a law enforcement animal[] in the fourth degree when he or she knowingly and intentionally causes physical harm to such law enforcement animal while such law enforcement animal is in performance of its duties or because of such law enforcement animal’s performance of its duties. Any person convicted of a violation of this subsection shall be guilty of a misdemeanor of a high and aggravated nature and, upon conviction thereof, shall be punished by imprisonment not to exceed 12 months, a fine not to exceed $5,000.00, or both.
(c) A person commits the offense of harming a law enforcement animal in the third degree when he or she knowingly and intentionally and with a deadly weapon causes, or with any object, device, instrument, or body part which, when used offensively against such law enforcement animal, is likely to or actually does cause, serious physical injury to such law enforcement animal while such law enforcement animal is in performance of its duties or because of such law enforcement animal’s performance of its duties. Any person convicted of a violation of this subsection shall be guilty of a misdemeanor of a high and aggravated nature and, upon conviction thereof, shall be punished by imprisonment for not less than six nor more than 12 months, afine not to exceed $5,000.00, or both.
(d) A person commits the offense of harming a law enforcement animal in the second degree when he or she knowingly and intentionally shoots a law enforcement animal with a firearm or causes debilitating physical injury to a law enforcement animal while such law enforcement animal is in performance of its duties or because of such law enforcement animal’s performance of its duties. Any person convicted of a violation of this subsection shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years, a fine not to exceed $25,000.00, or both.

(Emphasis supplied.) As we have noted in other contexts, the question whether a bodily injury is serious or debilitating is one for the jury to decide. See, e.g., Sims v. State, 296 Ga. App. 461, 462 (1) (675 SE2d 241) (2009) (evidence that defendant struck victim with his fists was sufficient to sustain his conviction for aggravated assault because fists are objects which, “when used offensively against another person,” are likely to result in serious bodily injury). “Hands and fists may be deadly weapons depending upon the circumstances, including the extent of the victim’s injuries.” Id. at 462 (punctuation and footnote omitted).

Bynes argues that the State did not prove that he knew that the dog that bit him was a police dog and that there was insufficient evidence of serious injury. The evidence showed, however, that Bynes was in flight from the police when he hid in a crawl space, that the officer ordered Bynes to let go of the dog, and that the dog lost consciousness as a result of Bynes’s application of a chokehold on the animal. Accordingly, this jury was authorized to conclude that Bynes was guilty of knowingly and intentionally causing serious physical injury to the police dog at issue here.

2. Although Bynes has not raised the matter on appeal, our review of the record shows that the five-year portion of his sentence for harming a police dog exceeded the statutory guidelines for the crime with which he was charged. Because Bynes’s sentence on this charge was therefore void, we vacate that portion of his sentence and remand for resentencing.

Bynes was indicted under OCGA § 16-11-107, without reference to a subsection, for “the offense of harming a police dog” in that Bynes, “on or about the 21st day of May, 2013, did knowingly and intentionally cause serious physical injury” to the police dog in question. (Emphasis supplied.) See OCGA § 16-11-107 (c), (d) (distinguishingbetween second- and third-degree harm to a police dog by whether the dog received “serious” or “debilitating” physical injuries). Bynes was not charged, in other words, with causing debilitating physical injury to the dog. Id.

At the outset of its charge to the jury, the trial court noted only that Bynes had been indicted for offenses including that of “harming a police dog,” and that “the indictments on the one hand and [the defendants’] pleas of not guilty on the other hand form the issues that you are about to decide in this case.” The trial court also noted that a copy of the indictment would be sent out during the jury’s deliberations. The trial court later charged the jury, however, that the crime of harming a police dog consisted of “knowingly and intentionally causing] serious or debilitating physical injury to a police dog, knowing said dog to be a police dog.” (Emphasis supplied.) The jury found Bynes guilty of two counts of armed robbery and one count of “harming a police dog” without making any reference to the degree of injury suffered by the dog. Bynes was convicted on these three counts and sentenced to two concurrent life terms as to the armed robberies and five years, also concurrent, for harming a police dog.

It is axiomatic that, as the trial court noted, the indictment and the pleas of not guilty “form the issue which [a jury is] trying and ... will determine by [its] verdict.” Gray v. State, 66 Ga. App. 50 (16 SE2d 916) (1941) (punctuation omitted); see also Council of Superior Court Judges, Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2007), § 1.10.20; Zilinmon v. State, 234 Ga. 535, 537-538 (5) (216 SE2d 830) (1975). “[An] indictment which does not recite language from the Code must allege every essential element of the crime charged.” Smith v. Hardrick, 266 Ga. 54, 55 (1) (464 SE2d 198) (1995). Here, Bynes was charged only with “knowingly and intentionally causing] serious physical injury” to the police dog in violation of OCGA § 16-11-107, without a specification of subsection, and there is no evidence that the jury considered or determined whether Bynes had knowingly caused “debilitating” injury to the dog under OCGA § 16-11-107 (d), which is a felony and carries a maximum sentence of five years. Rather, Bynes was indicted for causing “serious” injury to the dog, which is defined as a misdemeanor under OCGA § 16-11-107 (c).

“A sentence is void if the court imposes punishment that the law does not allow.” Crumbley v. State, 261 Ga. 610, 611 (1) (409 SE2d 517) (1991) (citation omitted). “ ‘To allow the defendant to serve a sentence for a criminal conviction that has been identified as illegal and void would not comport with fundamental fairness and due process of law.’ ” von Thomas v. State, 293 Ga. 569, 572 (2) (748 SE2d 446) (2013), quoting Nazario v. State, 293 Ga. 480, 487 (2) (c) (746 SE2d 109) (2013). We are empowered to correct a void sentence “ ‘even where it was not raised in the trial court and is not enumerated as error on appeal.’ ” Hulett v. State, 296 Ga. 49, 54 (2) (766 SE2d 1) (2014), quoting Nazario, 293 Ga. at 486 (2) (b). Because Bynes was sentenced for a crime not charged in the indictment, and therefore not considered by this jury, we vacate that portion of Bynes’s sentence imposed for causing debilitating injury to a police dog under OCGA § 16-11-107 (d) and remand to the trial court for resentencing for causingseriousphysicalinjurytoapolicedogunderOCGA § 16-11-107 (c). See Smith, 266 Ga. at 55-56 (3) (granting habeas relief to petitioner convicted of aggravated assault when indictment did not charge petitioner with that crime and was thus fatally defective). Compare Pitts v. State, 287 Ga. App. 540, 546-547 (3) (b) (652 SE2d 181) (2007) (where child molestation conviction merged into a rape conviction based on the same act as a matter of fact, defendant could not be separately sentenced for child molestation, such that no remand for resentencing on that count was necessary).

3. Bynes argues that the trial court erred when it denied his request for instructions on (a) the justified use of force in self-defense as to the charge of harming the police dog and (b) robbery by intimidation as a lesser included offense of the armed robbery charge. We disagree.

(a) OCGA § 16-3-21 (b) (2) provides in relevant part that a person “is not justified in using force” if he is “attempting to commit, committing, or fleeing after the commission or attempted commission of a felony.” This Court has thus held that when officers are “making a lawful arrest based on probable cause, they [have] the right to use [that] force reasonably necessary to make the arrest,” and that under such circumstances, the arrestee has “no right to resist the use of such reasonable force.” Mayfield v. State, 276 Ga. App. 544, 546 (2) (623 SE2d 725) (2005), citing Long v. State, 261 Ga. App. 478, 479 (1) (583 SE2d 158) (2003). It follows that a fleeing defendant who uses force in resisting his own arrest for a felony he has just committed is not entitled to an instruction on the justified use of force in self-defense. Mayfield, 276 Ga. App. at 546 (2). The fact that Bynes may have had what he considers an “involuntary” reaction to the dog’s bite does not change this result. See id. (defendant charged with felony obstruction after resisting arrest was not entitled to a jury charge on self-defense despite his claim that the pepper spray used by officers made his violent reaction “disoriented or involuntary”).

Decided March 16, 2016.

Barbara N. Lanier, for appellant.

Meg E. Heap, District Attorney, Lyndsey H. Rudder, Assistant District Attorney, for appellee.

(b) A defendant is entitled to a charge on robbery by intimidation if a jury could have found that a robbery “was committed without the use of an offensive weapon.” Smith v. State, 252 Ga. App. 552, 553 (556 SE2d 826) (2001). “ ‘However, where the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense.’ ” Id., quoting Lightfoot v. State, 227 Ga. App. 605 (490 SE2d 177) (1997). Here, Bynes did not testify in his own defense, and there was no evidence suggesting that the robbery of either victim was accomplished only by intimidation rather than the use of a gun. It follows that the trial court did not err when it denied Bynes’s request for a charge on robbery by intimidation. Smith, 252 Ga. App. at 554 (when “the only evidence before the court showed the completed offense of armed robbery,” the court did not err in refusing a request to charge on robbery by intimidation and theft by taking).

Judgment affirmed in part and vacated in part, and case remanded for resentencing.

Andrews, P. J., and Miller, P. J., concur.

       OCGA § 16-11-107 (a) (6) defines a “patrol dog” as “a dog trained to protect a peace officer and to apprehend or hold without excessive force a person in violation of the criminal statutes of this state”; subsection (a) (7) defines a “police dog” as including “a patrol dog” as well as “a tracking dog used by a law enforcement agency.”


author: McFADDEN, Judge.

text:
    A15A2214.
    SMITH v. THE STATE.
    (784 SE2d 76)
   McFADDEN, Judge.

After a jury trial, Neil Smith was convicted of possession of cocaine and possession of marijuana. He appealed, challenging the sufficiency of the evidence and the denial of his motion to dismiss the indictment on speedy trial grounds. See Smith v. State, 323 Ga. App. 668 (747 SE2d 859) (2013). This court found sufficient evidence to support the convictions. Id. at 669-670 (1). But because the record lacked a hearing transcript for, or a written order denying, the motion to dismiss, appellate review of the denial of the speedy trial claim could not be conducted. Id. at 671 (2). Accordingly, this court vacated the denial of the motion to dismiss and remanded the case to the trial court for it to make the required findings of fact and conclusions of law. Id. Upon remand, the trial court determined that previously no formal hearing had been held and no written order had been entered on the motion to dismiss. The trial court therefore held an evidentiary hearing, after which it entered a written order denying the motion to dismiss. Smith appeals, challenging the denial of his motion to dismiss. But because the trial court did not abuse its discretion in denying the motion, we affirm.

1. Stipulated facts.

Once again, the record before us does not contain a transcript of the hearing held on the motion to dismiss. However, unlike the first appeal in this case, the record now contains a written order which includes findings of fact and conclusions of law. The order also indicates that an evidentiary hearing was held, that Smith presented no evidence at the hearing, and that he instead relied on certain stipulated facts.

Those stipulated facts provide that Smith was arrested on the underlying drug charges on November 21,2008. In February 2009, he was sent to a federal penitentiary where he was held for a probation revocation on other charges. The United States Attorney’s office indicated to the state that it intended to prosecute Smith on the drug charges in federal court, so the state did not pursue the case. But in March 2011, the United States Attorney informed the state that its office would not prosecute the charges, so the state took over the case. The drugs in question had to be retested, which the state caused to be done on March 18, 2011. In July 2011, Smith was returned to state custody for pretrial detention. In August 2011, the drug test results were provided to the district attorney. The case was presented to the grand jury in September 2011, and Smith was indicted.

The case was placed on the court’s November 2011 trial calendar. On November 10, 2011, at a calendar call, Smith filed his motion to dismiss on speedy trial grounds. When the motion was denied, Smith requested a continuance, to which the state consented. The case was continued to the next trial calendar, when Smith was tried before a jury beginning on February 27,2012. The jury found Smith not guilty of the greater offenses of trafficking in cocaine and possession of marijuana with intent to distribute, but guilty of the lesser offenses of possession of cocaine and marijuana.

2. Denial of motion to dismiss on speedy trial grounds.

When considering a motion to dismiss on speedy trial grounds, the trial court must conduct a two-part test as set forth in the United States Supreme Court decisions in Barker v. Wingo, 407 U. S. 514, 530 (92 SCt 2182, 33 LE2d 101) (1972), and Doggett v. United States, 505 U. S. 647, 651-652 (112 SCt 2686, 120 LE2d 520) (1992). First, the trial court must determine whether the interval from the defendant’s arrest, indictment, or other formal accusation to trial is sufficiently long to be considered presumptively prejudicial. If the delay is presumptively prejudicial, the trial court must then determine whether the defendant has been deprived of his right to a speedy trial by analyzing a four-part balancing test that considers (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the right to a speedy trial, and (4) prejudice to the defendant.
In reviewing the trial court’s resolution of a speedy trial claim, we must accept the court’s findings of fact if the record contains any evidence to support them, and we will defer to the trial court’s ultimate conclusion unless it amounts to an abuse of discretion, even though we might have reached a different conclusion were the issue committed to our discretion. The trial court’s order must provide sufficient findings of fact and conclusions of law to permit this [c]ourt to determine if the trial court properly exercised its discretion under the Barker-Doggett analysis.

York v. State, 334 Ga. App. 581, 584 (2) (780 SE2d 352) (2015) (citations and punctuation omitted). In the instant case, the trial court’s order includes sufficient findings of fact and conclusions of law to permit this court to determine whether the trial court properly exercised its discretion in denying the motion to dismiss. For the following reasons, we find no abuse of discretion.

(a) Presumptive prejudice.

“Speedy trial rights attach at the time of arrest or formal indictment, whichever is earlier.” Salahuddin v. State, 277 Ga. 561, 562 (2) (592 SE2d 410) (2004) (citation omitted). Here, Smith was arrested in 2008 and indicted in 2011, so his speedy trial rights attached at the time of arrest. The trial court properly determined that the delay of approximately three years and three months between his arrest and trial was presumptively prejudicial. See State v. Porter, 288 Ga. 524, 526-527 (2) (b) (705 SE2d 636) (2011) (delay of one year generally considered to be presumptively prejudicial).

(b) Four-part Barker-Doggett balancing test.

Because the delay was presumptively prejudicial, the trial court correctly moved to an analysis of Smith’s speedy trial claim under the four-part balancing test set forth above. In reviewing the trial court’s analysis for an abuse of discretion, we note that

[tjhese four inquiries have no talismanic qualities and must be considered together with such other circumstances as may be relevant in light of the animating principles of the speedy trial guarantee. No one element is either necessary or sufficient to conclude that the right to a speedy trial has been violated.

Sweatman v. State, 287 Ga. 872, 873 (2) (700 SE2d 579) (2010) (citations and punctuation omitted).

(i) Length of delay.

The trial court found that the pretrial delay here was not uncommonly long and did not weigh heavily against the state. The court did not make any further finding that the length of delay weighed against the state at all, even lightly, so for purposes of this appeal we construe the order as failing to find that this factor weighs against the state. The court’s failure to weigh this factor against the state was error.

Where, as here,

the delay passes the threshold test of presumptive prejudice, the length of delay is considered a second time by factoring it into the Barker [-Doggett] analysis. The extent to which delay can be seen as uncommonly long depends to some extent on the complexity and seriousness of the charges in that case.

Leopold v. State, 333 Ga. App. 777, 781 (2) (a) (777 SE2d 254) (2015) (citations and punctuation omitted). The trial court did not find, and the state has made no showing, that there was anything particularly complex about the drug charges brought against Smith. By comparison, in the presumably more complex context of a murder case, the Supreme Court of Georgia has held that a delay of two years and two months “far exceeds the one-year benchmark for presumptive prejudice, and it is unusual even in comparison with other non-capital murder cases. . . . Accordingly, this factor weighs against the [s]tate on the Barker-Doggett scale.” Ruffin v. State, 284 Ga. 52, 58-59 (2) (b) (i) (663 SE2d 189) (2008) (citationomitted). Likewise, wefindthatthe pretrial delay of more than three years in this drug case was uncommonly long and that this factor must therefore be weighed against the state. See Leopold, supra (finding that pretrial delay of three years in drug case was uncommonly long and weighed against the state). “To the extent the trial court [found to the contrary] in the four-factor balancing test, it erred.” Ruffin, supra at 59 (2) (b) (i).

(ii) Reasons for the delay.

The trial court found that the primary reason for the delay was the early indication of the United States Attorney’s office that it would pursue the case, that the state then pursued the case diligently as soon as the federal authorities indicated that they had decided not to prosecute the case, and that there was no evidence the state had attempted to undermine Smith’s defense. Accordingly, the trial court concluded that “the delay is weighed lightly against the [s]tate.”

As shown by the stipulated facts recounted above, the trial court’s findings of fact were supported by the record and its legal conclusion to weigh this factor, albeit not heavily, against the state was correct.

Common reasons for delay include overcrowded dockets, the government’s failure to provide for sufficient numbers of judges, prosecutors, or indigent defense counsel, neglect by the prosecution or other government agents, mere convenience of the prosecution, or the desire to avoid the expense of separate trials for two defendants involved in the same crime. Each of these reasons must be counted against the government in the Barker-Doggett analysis, though less heavily than delay designed to sabotage the accused’s case.

Dillard v. State, 297 Ga. 756, 761 (4) (778 SE2d 184) (2015) (citations and punctuation omitted; emphasis supplied).

Here, the reason for the delay was neglect by the state and mere convenience of prosecution occasioned by the state’s reliance on the United States Attorney’s office’s indication that it would pursue the case. We note that the state does not escape blame for the delay due to the actions of other government authorities because in the BarkerDoggett analysis, the “government” includes all government actors, so “[t]he relevant inquiry for purposes of the second factor is not whether the prosecutor or the accused bears more responsibility for the delay, but whether the government or the criminal defendant is more to blame for that delay.” Ruffin, supra at 61 (2) (b) (ii) (citation, punctuation and emphasis omitted). In this case, the government clearly is more to blame for the delay than Smith. And because, as the trial court correctly found, there is no evidence that the state deliberately delayed as an attempt to sabotage the defense, this factor weighs less heavily against the state than a deliberate delay. See id. at 60 (2) (b) (ii) (negligence is weighed more lightly than a deliberate intent to harm the defense); State v. White, 282 Ga. 859, 862 (2) (b) (655 SE2d 575) (2008) (if the delay on the part of the state is negligent, but not deliberate, it is weighed against the state as a relatively benign factor).

(iii) Assertion of right to speedy trial.

Smith contends that the trial court erred in determining that his motion to dismiss was not filed early enough to establish that he actually wanted a speedy trial. The contention is without merit.

“While appellant was not required to seek a speedy trial at the first available opportunity, it was incumbent upon him to put the [s]tate on notice that he preferred to be tried as soon as possible.” Dillard, supra. Indeed,

invocation of the speedy trial right need not await indictment, information, or other formal charge; the accused can begin demanding that the right to a speedy trial be honored as soon as he or she is arrested. The relevant question for purposes of the third Barker-Doggett factor is whether the accused has asserted the right to a speedy trial in due course. This requires a close examination of the procedural history of the case with particular attention to the timing, form, and vigor of the accused’s demands to be tried immediately.

Ruffin, supra at 63 (2) (b) (iii) (citations and punctuation omitted).

Here, it is undisputed that Smith waited nearly three years after his arrest to assert his speedy trial claim for the first time in his motion to dismiss. Moreover, once that motion was denied, he immediately sought a continuance. Under these circumstances, Smith did not assert his right to a speedy trial in due course and this “third factor, which is entitled to strong evidentiary weight, [is weighed] against appellant.” Dillard, supra (citation and punctuation omitted).

(iv) Prejudice.

As to the prejudice factor, there are three interests which the speedy trial right was designed to protect, the last being the most important: (a) to prevent oppressive pre-trial incarceration; (b) to minimize anxiety and concern of the accused; and (c) to limit the possibility that the defense will be impaired.

Brown v. State, 287 Ga. 892, 895-896 (1) (d) (700 SE2d 407) (2010) (citation and punctuation omitted).

In this case, as the trial court found, most of Smith’s pretrial incarceration, from February 2009 to July 2011, was due to his being held in a federal penitentiary for a probation violation of other unrelated charges. And Smith has failed to show that he otherwise suffered any oppressive pretrial incarceration as a result of the charges in this case. Moreover, the record does not reflect that Smith testified “regarding [any] alleged anxiety or offer[ed] any other admissible evidence on that issue.” Porter, supra at 530 (2) (c) (4).

Likewise, Smith has not shown that his defense was impaired by the delay. The only claim that he makes in this regard is to cite to two state witnesses’ testimony that they did not remember certain facts and had to have their recollection refreshed by reference to documents. However, a review of the trial transcript reveals that those two witnesses’ testimony was in fact refreshed, and Smith has simply failed to claim or show how his defense was prejudiced by the fact that the memory of these two witnesses had to be refreshed. Indeed, because the state must prove every element of its case beyond a reasonable doubt, “the dimming of memories and loss of evidence that inevitably accompany the passage of time tend to help rather than hinder the accused[.]” Ruffin, supra at 62 (2) (b) (iii) (citations omitted). Under these circumstances, “[t]he trial court’s conclusions in . . . regard [to the prejudice factor] are supported by the record. Accordingly, the trial court properly weighed the fourth criterion against [Smith].” Id. at 65 (2) (b) (iv).

(c) Conclusion.

As explained above, the trial court erred in failing to weigh the first factor — length of the delay — against the state.

However, even if the trial court significantly misapplies the law or clearly errs in a material factual finding, the trial court’s exercise of discretion can be affirmed if the appellate court can conclude that, had the trial court used the correct facts and legal analysis, it would have had no discretion to reach a different judgment.

Dillard, supra at 762 (4) (citation and punctuation omitted). Here, although the trial court misapplied the first Barker-Doggett factor, we affirm the case because “even if the trial court had properly weighed the [first] factor ... against the government, it was incumbent upon the trial court to find no constitutional error given appellant’s long delay in asserting his right to a speedy trial and his failure to demonstrate prejudice. [Cits.]” Id. at 763 (4). See also Phan v. State, 287 Ga. 697, 700 (699 SE2d 9) (2010) (Nahmias, J., concurring) (delayed assertion of the right to a speedy trial and lack of prejudice are the two factors that most often weigh heavily against defendants and support the conclusion that speedy trial rights have not been violated).

In Ruffin, the trial court erred in several respects in its legal analysis of the Barker-Doggett factors governing the defendant’s speedy trial claim. Ruffin, supra at 65 (3). Nevertheless, our Supreme Court ruled that in spite of those multiple errors, the trial court did not abuse its discretion in denying the motion to dismiss the indictment because of the defendant’s “failure to present any persuasive evidence of ‘prejudice’ as that term is used in the Barker-Doggett analysis.” Id. at 65-66 (3). The Supreme Court further noted that the defendant’s relatively late assertion of the speedy trial right was an important factor in finding no abuse of discretion and in affirming the trial court’s denial of the motion to dismiss. Id.

Decided March 16, 2016.

McMillan & Rawlings, Aaron S. Palmer, for appellant.

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

In this case, the trial court, unlike the trial court in Ruffin, did not commit multiple errors in its speedy trial analysis. Rather, it committed only one error in failing to expressly weigh the length of the delay against the state, while correctly analyzing all the other factors. Although we do not minimize such an error in the analysis, we are compelled to find, as the Supreme Court did in Ruffin, that in spite of the error, the trial court did not abuse its discretion in denying the motion to dismiss given the failure of the appellant to show any persuasive evidence of prejudice and his relatively late assertion of the speedy trial right. Indeed, this is the same result reached by our Supreme Court in Dillard, where the trial court misapplied only the second Barker-Doggett factor, but the appellant’s delay in asserting his speedy trial right and failure to demonstrate prejudice made it incumbent upon the trial court to find no constitutional error. Dillard, supra at 763 (4). Accordingly, because the trial court did not abuse its discretion in denying Smith’s motion to dismiss on speedy trial grounds, that judgment must be affirmed. See Ruffin, supra at 65-66 (3).

Judgment affirmed.

Ellington, R J., and Dillard, J., concur.