author: Ray, Judge.

text:
    A16A1301.
    A16A1302, A16A1303.
    ALLEN v. McGUIRE. MILLER v. McGUIRE (two cases).
    (793 SE2d 151)
   Ray, Judge.

In this child custody action, Wesley B. Allen and his attorney, Jody Ann Miller, appeal from the trial court’s denial of Allen’s motion for partial summary judgment, the dismissal of the action by directed verdict, and the imposition of attorney fees. As these appeals are based on the same record, the separate appeals have been consolidated for the purposes of review. In Case No. A16A1301, we affirm the trial court’s denial of the motion for partial summary judgment, but we reverse its directed verdict and dismissal of the custody action, vacate the award of attorney fees assessed against Allen, and remand the case for further proceedings. In Case No. A16A1302, we incorporate our holdings in Case No. A16A1301, vacate the award of attorney fees assessed against Miller, and remand the case for further proceedings. We dismiss Case No. A16A1303 as redundant.

The record shows that Wesley Allen and Kimberly McGuire were divorced in Fulton County in December 2007. Pursuant to the divorce decree, the parties shared joint legal and physical custody of their minor child, with neither parent being designated as the primary custodian. Thereafter, McGuire moved to DeKalb County, and Allen remained in Fulton County In August 2010, McGuire filed a petition in Fulton County, Allen’s county of residence, seeking a modification of child custody and support. Allen answered and counterclaimed, likewise requesting a modification of child custody and support. Following a hearing, the Fulton County Superior Court entered an order awarding primary physical custody to Allen. However, on McGuire’s motion for new trial, the Fulton County Superior Court vacated its judgment, finding that it lacked jurisdiction to address Allen’s request for change of custody because his counterclaim was not brought as a separate action in McGuire’s county of residence pursuant to OCGA § 19-9-23 (a). The superior court further found that a new trial on McGuire’s petition for modification of custody was warranted.

While McGuire’s custody action in Fulton County was pending, Allen filed a separate petition for change of custody in DeKalb County, McGuire’s county of residence. Allen then filed a motion to transfer the case to Fulton County, and McGuire filed a response in opposition. The DeKalb County Superior Court denied Allen’s motion to transfer the case.

In November 2013, the Fulton County Superior Court entered a final order (the “Final Order”) denying McGuire’s petition for modification of custody, finding that the custodial provisions of the parties’ 2007 divorce decree were no longer in the child’s best interest, but that an award of primary custody to McGuire would not solve the problem. The Fulton County Superior Court entered a subsequent clarification order (the “Clarifying Order”) in October 2014, concluding that “it is in the best interest of the child for the current [custodial] schedule, with mid-week exchanges between parents living in two [different] counties, to be discontinued . . . [and] giving [McGuire] primary custody is [not] the best solution to this issue.” In the Clarifying Order, the Fulton County Superior Court further found that Allen, more so than McGuire, had demonstrated “a willingness and ability to ‘facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.’ ”

Thereafter, on January 29, 2015, Allen filed a motion for partial summary judgment in the DeKalb County custody action, contending that he was entitled to primary physical custody of the child by virtue of the order in the Fulton County custody action. Allen also filed a motion in limine seeking a pre-trial ruling that any and all evidence from the time of the parties’ 2007 divorce decree would be admissible at trial in the event that his motion for partial summary judgment was denied. The DeKalb County Superior Court (hereinafter the “trial court”) denied both motions. In denying Allen’s motion for partial summary judgment, the trial court found that McGuire had presented evidence that there had been a material change in facts and circumstances since the order in the Fulton County custody action which created a genuine issue of fact regarding Allen’s petition for change of custody In ruling on Allen’s motion in limine, the trial court found that only the facts and circumstances occurring after the order in the Fulton County custody action would be admissible at trial.

With these evidentiary constraints in place, the parties proceeded to trial in the DeKalb County custody action. At the conclusion of Allen’s presentation of evidence, McGuire moved to dismiss and/or for directed verdict. After hearing argument, the trial court granted McGuire’s motion for directed verdict and dismissed the action, finding that Allen had failed to establish that there had been a material change in conditions affecting the welfare and best interest of the child since the order in McGuire’s custody action in Fulton County The trial court took the issue of attorney fees under advisement, and it provided the parties with deadlines to file their respective briefs on that issue.

On September 10, 2015, McGuire filed a motion for attorney fees pursuant to OCGA §§ 19-9-3, 9-11-37, and 9-15-14 (a) and (b), contending that she was entitled to attorney fees based on the respective financial conditions of the parties, Allen’s abuses of discovery, Allen’s assertion of frivolous claims and positions that had no justiciable issue of law or fact, and Allen’s unnecessary expansion of the proceedings. Allen filed his response to the motion on September 24, 2015. Following a hearing, the trial court entered an order granting McGuire’s motion for attorney fees pursuant to OCGA §§ 19-9-3, 9-11-37, and 9-15-14 (a), and it appears that the trial court assessed such fees against both Allen and his attorney, Jody Ann Miller. These appeals ensued.

Case No. A16A1301

1. In his first enumeration of error, Allen contends that the trial court erred in denying his motion for partial summary judgment. Specifically, he argues that the order in the Fulton County custody action had a preclusive effect on the issue of custody in the instant case. While we agree that the ruling in the Fulton County custody action has a preclusive effect on the issue of whether there had been a material change of circumstances affecting the welfare and best interest of the child, the ruling in the Fulton County custody action was based on facts and circumstances that existed at that time. We find that the trial court was correct in concluding that McGuire had presented evidence of additional facts and circumstances occurring after the Fulton County custody action which precluded summary judgment.

At the outset, however, we note that the ruling in the Fulton County custody action was sufficient to overcome McGuire’s motion for directed verdict. In the Fulton County custody action, the superior court concluded that the custody provisions of the parties’ 2007 divorce decree were no longer workable and that an award of primary physical custody to McGuire would not solve the problem. “The doctrine of collateral estoppel, also known as issue preclusion, prevents the re-litigation of an issue actually litigated and adjudicated on the merits between the same parties or their privies.” (Citation omitted.) Simmons v. State, 276 Ga. 525, 527 (579 SE2d 735) (2003). See also OCGA § 9-12-40.

[Ujnlike res judicata, collateral estoppel does not require identity of the claim — so long as the issue was determined in the previous action and there is identity of the parties, that issue may not be re-litigated, even as part of a different claim. Furthermore, collateral estoppel only precludes those issues that actually were litigated and decided in the previous action, or that necessarily had to be decided in order for the previous judgment to have been rendered.

(Citation and emphasis omitted.) Cost Mgmt. Group, Inc. v. Bommer, 327 Ga. App. 164, 168 (1) (755 SE2d 537) (2014). Thus, the trial court was bound by the ruling in the Fulton County custody action, and Allen was entitled to rely on that ruling to establish that there had been a material change in circumstances since the last custody award and that McGuire was not entitled to custody at the time of the Fulton trial. Allen was not required to present additional evidence in his case-in-chief to avoid a directed verdict. As the trial court erred in granting a directed verdict to McGuire, Allen is entitled to a new trial on his petition for modification of custody.

In regard to his motion for partial summary judgment, however, Allen bore the burden of establishing that, based on the current facts and circumstances, he was entitled to a modification of custody as a matter of law.

Summary judgment is [only] proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant [or denial] of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Footnote omitted.) Fox v. Korucu, 315 Ga. App. 851, 851-852 (729 SE2d 16) (2012). Furthermore, as the determination of custody is based in part on the trial court’s discretion, custody actions are generally ill-suited for summary adjudication. See Miller v. Rieser, 213 Ga. App. 683, 688 (1) (446 SE2d 233) (1994).

In response to Allen’s motion for partial summary judgment, McGuire submitted an affidavit stating that there had been material changes affecting the welfare of the child that had occurred since the disposition of the Fulton County custody action, including changes in the composition of the parties’ respective households, changes in the child’s academic progress, and Allen’s failure to communicate and cooperate with her with regard to the child’s medical care. As the trial court correctly concluded, this constitutes evidence of material facts which preclude summary adjudication of the custody issue. See Fox, supra at 855. Therefore, the trial court did not err in denying Allen’s motion for partial summary judgment.

2. Next, Allen contends that the trial court erred in limiting the scope of the evidence at trial to the facts and circumstances that arose after the disposition of the Fulton County custody action. We agree.

On a petition for modification of custody, a trial court must determine whether “there has been a material change of condition affecting the welfare of the child since the last custody award.” (Citations omitted; emphasis supplied.) Driver v. Sene, 327 Ga. App. 275, 276 (758 SE2d 613) (2014). Here, the record is clear that the last custody award was the 2007 divorce decree, which awarded joint legal and physical custody of the child to both parties. There was no “custody award” in the Fulton County custody action, as McGuire’s petition for modification of custody was denied in that case.

Furthermore, in order for the trial court to make a fair determination at trial regarding the strength of McGuire’s evidence concerning the alleged circumstances occurring after the Fulton County custody action, the trial court would need to be apprised of the facts and circumstances upon which the Fulton County Superior Court relied in issuing its ruling. In other words, the admission of evidence concerning the circumstances that existed between the parties’ 2007 decree and the denial of McGuire’s petition to modify custody in 2013 would place all of the parties’ evidence into context, and it would allow the trial court to make a comparative analysis of the parties’ respective evidence. Therefore, we find that all of the relevant facts and circumstances that occurred after the 2007 divorce decree should have been considered by the trial court.

For the above reasons, we find that the trial court erred in limiting the scope of the evidence at trial to the facts and circumstances that arose after the denial of McGuire’s petition for change of custody in the Fulton County action. Accordingly, Allen is entitled to a new trial on his petition for modification of custody.

3. Allen also contends that the trial court erred in dismissing his petition for modification of custody, arguing that he presented other evidence at trial to support his request for modification. In light of our holdings in Divisions 1 and 2, supra, we need not address this enumeration.

4. In a compound enumeration of error, Allen contends that the trial court erred in assessing attorney fees against him.

The record shows that the trial court based its attorney fee award, in part, on its conclusions that Allen’s argument on his motion in limine regarding the admissibility of evidence lacked merit and that he had failed to present evidence at trial that was sufficient to support his request for modification of custody. As our holdings in Divisions 1 and 2, supra, may have a substantial effect on the trial court’s award of attorney fees in this case, we vacate the award and remand the issue of attorney fees for further consideration after the new trial on Allen’s petition for change of custody. In so holding, we need not address all of the arguments submitted by Allen.

Case No. A16A1302

5. In five related enumerations of error, Allen’s attorney, Jody Ann Miller, contends that the trial court erred in assessing attorney fees jointly against her. For the reasons set forth in Division 4 of this opinion, we likewise vacate the award as it pertains to Miller and remand the issue of attorney fees for further consideration after the new trial on Allen’s petition for change of custody. In so holding, we need not address all of the arguments submitted by Miller.

Decided October 28, 2016.

David A. Webster, for appellant (case no. A16A1301).

Hill/Macdonald, Vic B. Hill, Brad E. Macdonald, for appellant (case nos. A16A1302, A16A1303).

Jacquelyn F. Luther, Valencia C. Thurman, for appellee.

Case No. A16A1303

6. In Case No. A16A1303, Miller asserts the same errors as those asserted in Case No. A16A1302. We therefore dismiss Case No. A16A1303 as redundant. See First Southern Bank v. C & F Svcs., Inc., 290 Ga. App. 304, 309 (5) (659 SE2d 707) (2008).

Judgment affirmed in part, reversed in part, and vacated in part, and case remanded in Case No. A16A1301. Judgment vacated and case remanded in Case No. Al 6A1302. Appeal dismissed in Case No. A16A1303.

Doyle, C. J., and Andrews, P. J., concur.

       OCGA § 19-9-23 (a) provides, in pertinent part, that “any complaint seeking to obtain a change of legal custody of the child shall be brought as a separate action in the county of residence of the legal custodian of the child.” It does not appear that Allen appealed from the Fulton County Superior Court’s ruling on this issue. We note that the mandatory venue provisions of ÓCGA § 19-9-23 (a) may be waived. See Bailey v. Bailey, 283 Ga. App. 361, 363 (641 SE2d 580) (2007); Ganny v. Ganny, 238 Ga. App. 123, 125 (2) (518 SE2d 148) (1999).

       We note that our appellate courts apparently have not specifically addressed the issue of venue in competing custody actions where, as here, the mother and the father reside in different counties, the parents both share joint legal and physical custody, and neither parent is designated as the primary physical custodian. Under such circumstances, either county could arguably be considered the proper venue, particularly where a party avails herself of the jurisdiction of a court outside her county of residence by initiating the custody modification action. The problems presented in this case likely would have been averted if the Fulton Superior Court had decided the claims of both parents. Given that our trial courts are increasingly awarding joint physical custody, this is a matter that is ripe for the General Assembly and/or our appellate courts to address.

       An argument can be made that the Fulton Court was without jurisdiction to issue its Clarifying Order on October 28, 2014, to its original Final Order issued on November 26, 2013, particularly if the second order had the effect of expanding the issues decided and in light of the collateral estoppel or claim preclusive effect of the Fulton Court’s holding. We do not endeavor to decide in this opinion as to whether and/or what extent the findings in the Clarifying Order expanded the Fulton Court’s holdings therein, and to the extent they did, whether they were validly issued. We leave such decision in the first instance to the trial court hereinbelow.


source: Caselaw Access Project

author: MILLER, Presiding Judge.

license: Public Domain

text:
    A16A1347.
    McDOUGLER v. THE STATE.
    (793 SE2d 511)
   MILLER, Presiding Judge.

This case is before this Court for a second time to address Ronald McDougler’s claim that the trial court should have dismissed his indictment on constitutional speedy trial grounds. McDougler v. State, 323 Ga. App. 828 (748 SE2d 475) (2013) (‘McDougler I”). In 2009, McDougler was convicted by a jury of two counts of sale of cocaine(OCGA § 16-13-30(a)),andtwocountsofpossessionofcocaine (OCGA § 16-13-30 (b)). McDougler filed a direct appeal, arguing that he was denied his constitutional right to a speedy trial, and this Court remanded to the trial court with instructions to enter sufficient findings of fact and conclusions of law with respect to the speedy trial claim. McDougler I, supra, 323 Ga. App. at 830 (2). McDougler now appeals the renewed denial of his motion to dismiss his indictment on constitutional speedy trial grounds, arguing that the trial court erred in its analysis of the principles set out in Barker v. Wingo, 407 U. S. 514, 530-533 (IV) (92 SCt 2182, 33 LE2d 101) (1972), and Doggett v. United States, 505 U. S. 647, 651-654 (II)-(III) (112 SCt 2686, 120 LE2d 520) (1992). After a thorough review, we affirm.

In Georgia, the application of [the Barker-Doggett] principles to the circumstances of a particular case is a task committed principally to the discretion of the trial courts, and it is settled law that our role as a court of review is a limited one. Under our precedents, we must accept the factual findings of the trial court unless they are clearly erroneous, and we must accept the ultimate conclusion of the trial court unless it amounts to an abuse of discretion, even though we might have reached a different, conclusion were the issue committed to our discretion.

(Citations and footnote omitted.) State v. Buckner, 292 Ga. 390, 391 (738 SE2d 65) (2013).

A full factual history of McDougler’s conviction is set forth in McDougler I, supra, 323 Ga. App. at 828-829, and we need not recount it here. We do, however, set forth those facts relevant to our speedy trial analysis: McDougler was arrested in March 2008, and charged with several drug-related offenses by accusation on April 21, 2008.

At jury selection on October 20, 2008, the State was unprepared because it believed that McDougler was going to enter a guilty plea. The trial court postponed jury selection until October 22, 2008; however, on October 21, 2008, the State filed a notice of intent to present evidence of similar transactions. This notice failed to comply with the statutory ten-day notice requirement, and accordingly, defense counsel objected. The trial court granted a continuance.

Despite the continuance, when the parties met for a hearing on outstanding motions on January 7, 2009, the State again failed to comply with the requirements for the notice of similar transactions. As a result, the judge sua sponte granted a second continuance and set the new trial date for July 16, 2009. On July 2, 2009, just two weeks before trial, defense counsel filed a motion to dismiss the indictment, raising the constitutional speedy trial claim.

At a hearing on his speedy trial motion, McDougler argued that the delay in a timely trial was attributable to the State and its failure to file a proper notice of similar transaction evidence. He further argued that the time period was presumptively prejudicial, and the delay impaired his interest in a speedy trial. The trial court denied the motion to dismiss in an order that did not contain the required factual findings.

Following his conviction, McDougler directly appealed, raising his speedy trial claim. This Court remanded the case for the trial court to enter explicit findings of fact and conclusions of law with respect to McDougler’s speedy trial claim. McDougler I, supra, 323 Ga. App. at 830-831 (2). On remand, the trial court again denied the motion to dismiss, and this appeal followed.

In his sole enumeration of error, McDougler alleges that the trial court erred in ruling against him on the third and fourth Barker-Doggett factors because (1) the trial court did not mitigate his delay in seeking dismissal due to the State’s tardiness in complying with discovery, and (2) the trial court failed to find that the length in delay harmed his defense by giving the confidential informant time to gain credibility

The Sixth Amendment to the United States Constitution, and the Georgia Constitution, guarantee criminal defendants the right to a speedy trial. See U. S. Const. Amend. VI; Ga. Const. Art. I, Sec. I, Par. XI (a).

In ruling on a defendant’s constitutional speedy trial claim, a trial court’s first inquiry is whether the interval from the accused’s arrest, indictment, or other formal accusation to the trial is sufficiently long to be considered presumptively prejudicial. If not, the speedy trial claim fails at the threshold. A delay approaching one year is generally deemed to be presumptively prejudicial. If this threshold is crossed, the court must consider the four factors outlined in Barker v. Wingo, 407 U. S. 514 (92 SCt 2182, 33 LE2d 101) (1972): [1] whether delay before trial was uncommonly long, [2] whether the government or the criminal defendant is more to blame for that delay, [3] whether, in due course, the defendant asserted his right to a speedy trial, and [4] whether he suffered prejudice as the delay’s result. These four factors have no talismanic qualities and must be considered together with such other circumstances as may be relevant given the animating principles behind the speedy trial guarantee. Thus, the second stage of the constitutional speedy trial analysis requires courts to engage in a difficult, and sensitive balancing process and necessarily compels them to approach speedy trial cases on an ad hoc basis.

(Citations and punctuation omitted.) State v. Pickett, 288 Ga. 674, 675 (2) (a) (706 SE2d 561) (2011). “The trial court’s weighing of each factor and its balancing of all four factors — its ultimate judgment — are reviewed on appeal only for abuse of discretion.” State v. Porter, 288 Ga. 524, 526 (2) (a) (705 SE2d 636) (2011).

1. Presumptive prejudice.

Where a trial has yet to occur, the period of delay is calculated from the day of arrest or formal accusation to the date on which a speedy trial motion was granted or denied. Porter, supra, 288 Ga. at 526 (2) (b). Generally, for crimes that do not involve many complexities, a delay that is approaching one year raises a presumption of prejudice. Ruffin v. State, 284 Ga. 52, 55 (2) (a) (663 SE2d 189) (2008).

Here, the trial court found that the delay in this case, which was just shy of 16 months, was presumptively prejudicial. Accordingly, we turn to the four-factor balancing test.

2. Barker-Doggett balancing test.

When analyzing the four Barker-Doggett factors, no single factor is “either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial.” Ruffin, supra, 284 Ga. at 55 (2) (b).

Here, the trial court found that the first two factors — the length of delay and the cause of delay — weighed in McDougler’s favor. As such, the only issues before us relate to the third and fourth factors.

(a) Assertion of the right.

The third factor of the Barker-Doggett analysis is the assertion of the right to a speedy trial. The State bears the burden to ensure that individuals accused of a crime are brought to trial promptly Ruffin, supra, 284 Ga. at 62 (2) (b) (iii). Nevertheless, the accused also holds responsibility in asserting his right so that the government has notice that the accused would like to be tried in a timely manner. Id. The accused, however, is not required to assert his right at the first available opportunity Id. Thus, the determinative question in analyzing this third factor is whether or not the accused asserted his right in “due course.” Id. at 63 (2) (b) (iii).

“To assess whether the accused insisted ‘in due course’ upon his right to a speedy trial 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.” (Citation omitted.) Buckner, supra, 292 Ga. at 397 (3) (c). When a delay in trial is due to the State’s failure to comply with discovery, the trial court is entitled, but not required, to mitigate a delay in the defendant’s assertion of his right. State v. Shirley, 311 Ga. App. 141, 146 (3) (c) (714 SE2d 636) (2011). “[A] defendant cannot be faulted for demanding that the state comply with discovery obligations before trial began.” (Punctuation omitted.) Id.

Here, McDougler was arrested in March 2008, and the trial court granted two continuances in October 2008, and January 2009, due to the State’s failure to meet its discovery obligations. McDougler, however, did not file his motion to dismiss until July 2,2009. Although the delay in this case was due to the State’s failure to comply with discovery requirements, the trial court was not required to mitigate this factor, and it was within the trial court’s discretion to decide whether or not to take this into account. Shirley, supra, 311 Ga. App. at 146 (3) (c). The trial court noted that McDougler had no articulable reason for the 16-month delay in asserting his right. Thus, the trial court weighed this factor against McDougler.

We cannot say that the trial court abused its discretion in weighing this factor. Given the many pre-trial hearings that occurred, and the two continuances granted to the State, McDougler arguably did not act “in due course” to assert his right to a speedy trial. Notably, even after the trial court granted the second continuance, McDougler waited six months to bring his motion. See Robinson v. State, 287 Ga. 265, 268-269 (1) (c) (695 SE2d 201) (2010) (defendant waited sixteen months after arrest and waited nine months after the appointment of new counsel to raise speedy trial claim); Weis v. State, 287 Ga. 46, 54 (1) (c) (694 SE2d 350) (2010) (fact that defendant waited one month after case was placed on trial calendar to bring motion weighed against him). In light of our deferential standard of review, we conclude that the trial court did not abuse its discretion in not mitigating this factor.

(b) Prejudice.

The fourth and final factor of the Barker-Doggett analysis is the prejudice to the defendant.

As the United States Supreme Court has explained, prejudice should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect, namely to prevent oppressive pretrial incarceration, to minimize anxiety and concern of the accused, and to limit the possibility that the defense will be impaired.

(Citations and punctuation omitted.) Buckner, supra, 292 Ga. at 398 (3) (d). “With regard to the possibility of harm to the accused’s defense, this element is the most serious of the three factors regarding prejudice to the defendant.” (Citation and punctuation omitted.) Robinson, supra, 287 Ga. at 269 (1) (d).

Here, the trial court found that McDougler presented no evidence that he suffered anxiety or concern, and he made no showing that the delay affected his ability to defend himself. Although McDougler contends that the passage of time enhanced the confidential informant’s credibility by increasing the length of time in which the informant could undergo, and pass, drug screenings, the State also presented audio and video evidence at trial to corroborate the informant’s testimony. See Leopold v. State, 333 Ga. App. 777, 783-784 (2) (d) (777 SE2d 254) (2015) (defendant was not prevented from obtaining evidence or testimony and therefore delay in trial, which strengthened the State’s case, did not cause prejudice). Thus, we cannot say the trial court abused its discretion in finding that this factor weighed against McDougler.

Decided October 28, 2016.

Andrew S. Fleischman, Leo J. Right, Jr., for appellant.

Jacquelyn L. Johnson, District Attorney, Andrew J. Ekonomou, Rocky L. Bridges, Assistant District Attorneys, for appellee.

(c) Balancing the factors.

We find no basis to reverse the trial court’s weighing of these four factors. Although we do not condone the State’s repeated failure to comply with discovery rules, and we might have reached a different, conclusion had the issues been subject to our — rather than the trial court’s — discretion, we cannot say that the trial court abused its discretion in concluding that the factors weighed against McDougler. Buckner, supra, 292 Ga. at 391. Accordingly, we affirm the trial court’s denial of McDougler’s motion to dismiss on speedy trial grounds.

Judgment affirmed.

McFadden and McMillian, JJ., concur.

       McDougler’s counsel failed to file a notice of appeal from the trial court’s order on remand. On May 30, 2014, McDougler filed a petition for habeas corpus alleging ineffective assistance of trial counsel and appellate counsel, and as a result the trial court granted his petition on February 1, 2016, thus enabling McDougler to file the instant appeal.


author: Peterson, Judge. DILLARD, Judge,

text:
    A16A1360.
    HOLT v. THE STATE.
    (793 SE2d 516)
   Peterson, Judge.

Desmond Delamara Holt appeals the denial of his plea in autre-fois convict, asserting that his pending prosecution for armed robbery and other offenses is barred by his previous guilty plea and conviction for theft by receiving stolen property. The State initiated this prosecution following allegations that Holt robbed a woman at gunpoint, taking her cell phone, purse, and other items and driving away in her car. Holt protests that the prosecution is barred because he previously pleaded guilty to theft by receiving the vehicle after police arrested him following a high speed chase in which he was found driving the stolen vehicle days after the alleged robbery. Holt argues that the trial court erred in rejecting his arguments under both constitutional and statutory protections against double jeopardy. We conclude that the trial court did not err in rejecting Holt’s argument that the State is collaterally estopped from pursuing the current charges, given the trial court’s factual finding that the alleged armed robbery was completed before the vehicle was taken. We also conclude the trial court did not err in rejecting Holt’s argument that the State’s failure to bring the various charges together bars its pursuit of the current charges, as Holt failed to present evidence that the currently-charged crimes were known to the prosecuting attorney when the earlier prosecution was brought.

“On appeal from the grant or denial of a double jeopardy plea in bar, we review the trial court’s oral and written rulings as a whole to determine whether the trial court’s findings support its conclusion.” State v. Hill, 333 Ga. App. 785, 785 (777 SE2d 265) (2015) (citation omitted). To the extent that the facts are undisputed, our review of the trial court’s application of the law to those facts is de novo. Id. The trial court’s factual findings are assessed under the standard of clear error. See Jenkins v. State, 294 Ga. 506, 508 (1) (755 SE2d 138) (2014).

The record shows that on October 17, 2014, Holt was indicted for theft by receiving stolen property. The indictment alleged that on October 8, 2014, Holt had received and retained a stolen 2003 Chevrolet Impala. On October 27, 2014, Holt pleaded guilty to that charge under North Carolina v. Alford, 400 U. S. 25 (91 S. Ct. 160, 27 LE2d 162) (1970).

In June 2015, Holt was indicted for several crimes alleged to have been committed on October 6, 2014. That indictment accused Holt of armed robbery based on allegations that he used a handgun to take a cell phone and money from the person and immediate presence of the alleged victim. It also charged Holt with theft by taking the phone and money, and aggravated assault based on an allegation that Holt pointed a handgun at the victim while threatening to shoot her and having an intent to rob her. The indictment also charged Holt with possession of a firearm by a convicted felon and possession of a weapon during the commission of a felony

Holt filed a plea in autrefois convict as to the June 2015 indictment. Holt argued that because he had been convicted and sentenced in the prior case “for crimes arising out of the same facts or occurrences” as the pending charges, prosecution on those charges was barred by both state and federal constitutional prohibitions against double jeopardy, as well as OCGA §§ 16-1-7 and 16-1-8.

Following a hearing on the defense motion, the trial court denied the plea in bar in oral and written rulings. The trial court found that the offenses of which Holt was convicted did not involve “the same conduct or transaction” as the pending charges and that the prosecuting attorney in the earlier case “had no actual knowledge” of the offenses alleged in the pending charges. Holt filed this direct pre-trial appeal.

1. Holt first argues that the State is collaterally estopped from prosecuting him for armed robbery and the other pending charges because that prosecution is factually inconsistent with his prior guilty plea to theft by receiving. We disagree.

The doctrine of collateral estoppel is part of the Fifth Amendment’s guarantee against double jeopardy, a guarantee that is applicable against the states through the Fourteenth Amendment. See Clark v. State, 144 Ga. App. 69, 69 (240 SE2d 270) (1977). “Collateral estoppel . . . may completely bar a subsequent prosecution where one of the facts necessarily determined in the former proceeding is an essential element of the conviction sought.” Malloy v. State, 293 Ga. 350, 354 (2) (a) (744 SE2d 778) (2013). “The doctrine of collateral estoppel will not bar a retrial unless the record of the prior proceeding affirmatively demonstrates that an issue involved in the second trial was definitely determined in the former trial; the possibility that it may have been does not prevent the relitigation of that issue.” Roesser v. State, 294 Ga. 295, 297 (751 SE2d 297) (2013) (citation and punctuation omitted). But “[t]he rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality; courts should engage in a practical inquiry based on all the circumstances of the proceeding.” Id. (citation and punctuation omitted).

Holt argued before the trial court that because he previously was convicted of theft by receiving of the stolen vehicle, he cannot now be prosecuted for the armed robbery of the woman who had been driving that vehicle. He notes that the current indictment, in charging him with armed robbery, accuses him of unlawfully taking money and a cell phone from the victim’s person through the use of a handgun. He then asserts that the record shows those allegedly stolen items were located inside the vehicle at the time of the alleged robbery. Consequently, he argues, he cannot be found to be the “forceful taker” of the cell phone and money because he already has been adjudicated the “passive receiver” of the car. Holt’s argument is unavailing, however, because he has not proven that his prior conviction necessarily established that he did not steal the victim’s cell phone and money from her person.

Holt is correct that a conviction for theft by receiving a particular item of property is necessarily premised on a determination that someone other than the defendant took that item. See Redding v. State, 192 Ga. App. 325, 326 (2) (384 SE2d 910) (1989). Therefore, the State’s prior prosecution of Holt for theft by receiving necessarily determined that he did not steal the Impala. But he currently is charged with stealing different items, specifically the victim’s money and cell phone, as well as using a firearm to do so. Holt suggests that the prior determination that he did not steal the car means he cannot be said to have stolen the cell phone and money, either, because they were not taken from the victim’s person but were taken by virtue of their location in the vehicle when it was stolen. But the trial court made a contrary factual determination, concluding that it “guess[ed]” the armed robbery took place “at the ATM or on the street.” This finding is not clearly erroneous. The State represented to the trial court its understanding that the victim was accosted on the street and that the evidence at trial would show that the armed robbery was completed before Holt made contact with the vehicle she had been driving. Those representations were supported by police reports from officers who responded to the victim’s call. One officer reported that the victim told him the suspect had approached her after she used an ATM and was walking back to her car. The officer said the victim told him that the suspect had a handgun and threatened to shoot her if she took another step, whereupon the victim gave the suspect her phone and money, and the suspect took the vehicle she had been driving. Another officer who met with the victim after Holt was apprehended said in her report that the victim identified one of the phones found in the vehicle as the one she was talking on when the suspect approached her. To the extent that other evidence suggested the cell phone and money were in the vehicle all along, the trial court did not clearly err in resolving this conflict in favor of the State.

We acknowledge that the police reports that are part of the record in this case indicate that the alleged victim told police that the same man who took her cell phone and money also drove off in her car. And we are mindful that, in seeking to determine whether any factual determination made in the prior proceeding precludes the current prosecution, we are to examine the proceeding “with realism and rationality” Roesser, 294 Ga. at 297. But we have no testimony from the victim from the prior proceeding, which was resolved with a guilty plea. On this record, we cannot conclude that the prior proceeding definitely determined anything with respect to who stole the victim’s phone and money Collateral estoppel thus does not bar the current prosecution. Compare State v. Fuller, 267 Ga. App. 40, 43-44 (599 SE2d 3) (2004) (on motion for reconsideration) (guilty plea to charge of theft by receiving a stolen vehicle does not bar charge that defendant kidnapped the owner of the vehicle, as the State was “not attempting to relitigate . . . any fact determined in” the prior prosecution), and Maxey v. State, 239 Ga. App. 638, 639-40 (2) (521 SE2d 673) (1999) (guilty plea to charge of theft by receiving stolen vehicle does not bar prosecution on charge that defendant burglarized home of the car’s owner, as defendant committed the burglary before taking the vehicle, which was not on the premises when he entered the victim’s home), with Clark, 144 Ga. App. at 69-70 (guilty plea to charge of theft by receiving stolen check writing machine bars charge that defendant perpetrated burglary in which the machine was among the items stolen, as prior conviction necessarily determined that the burglary was committed by someone other than the defendant) .

2. Holt also makes a procedural double jeopardy claim on the basis that the current charges should have been prosecuted in the same proceeding as the theft by receiving prosecution. This claim fails, as well.

OCGA § 16-l-7(b) provides that “[i]f the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution,” except as provided in OCGA § 16-l-7(c), which is not applicable here. OCGA § 16-l-8(b)(l) provides:

A prosecution is barred if the accused was formerly prosecuted for a different crime . . ., if such former prosecution . . . [rjesulted in either a conviction or an acquittal and the subsequent prosecution ... is for a crime with which the accused should have been charged on the former prosecution (unless the court ordered a separate trial of such charge) [.]

“A second prosecution is barred under OCGA § 16-l-8(b)(l) if it is for crimes which should have been brought in the first prosecution under OCGA § 16-l-7(b) Nicely v. State, 305 Ga. App. 387, 388 (1) (699 SE2d 774) (2010).

The State has not contested that both prosecutions were brought within the jurisdiction of a single court. It does, however, challenge Holt’s procedural double jeopardy claim on both the “arising from the same conduct” and “known to the proper prosecuting officer” prongs. Assuming without deciding that the pending charges against Holt “aris[ej from the same conduct” as the theft by receiving conviction does, we conclude that Holt’s procedural double jeopardy claim fails because he did not meet his burden to show that the pending crimes were “known to the proper prosecuting officer” when the earlier charge was brought.

In Baker v. State, 257 Ga. 567 (361 SE2d 808) (1987), our Supreme Court rejected a constructive knowledge test for OCGA § 16-l-7(b) and held that the statute applies “only to such crimes which are actually known to the prosecuting officer actually handling the proceedings.” Id. at 568-69 (citation and punctuation omitted; emphasis in original). The defendant “bears the burden of affirmatively showing that the prosecuting attorney for the State who handled the first prosecution had actual knowledge of the facts supporting the charge allegedly subject to a plea in bar.” Nicely, 305 Ga. App. at 388 (1). The phrase “proper prosecuting officer” means the State’s prosecuting attorney, not the law enforcement officer who performs the arrest. Id. at 388 (1) n.5. Once a prosecutor reads an arrest report and therefore is familiar with a defendant’s alleged conduct, the prosecutor is charged with knowledge of the crimes that arise from that alleged conduct. Billups v. State, 228 Ga. App. 804, 808 (1) (493 SE2d 8) (1997). Moreover, our Supreme Court has distinguished Baker in cases in which the same prosecutor’s office handles both prosecutions, holding that a district attorney’s knowledge of the charge allegedly subject to a plea in bar may, under some circumstances, be imputed to the assistant district attorney who acted in the district attorney’s place representing the State in the first prosecution. See State v. Smith, 259 Ga. 352, 353 (381 SE2d 37) (1989) (district attorney’s name appeared on accusation and the indictments as to all charges); see also Nicely, 305 Ga. App. at 390 (1) (district attorney’s name appeared on indictment of allegedly-barred drug charge, which was returned prior to date on which defendant entered the plea on a traffic citation in a proceeding handled by one of the district attorney’s assistant prosecutors).

Here, the trial court found that, in prosecuting Holt for theft by receiving, the prosecutor was not aware of the facts giving rise to the crimes charged now. This finding is not clearly erroneous. We have virtually none of the record from the prior proceeding before us, but the portion of the plea hearing transcript read into the record in this case shows that, when the judge in the 2014 proceeding said she assumed Holt was not the carjacker, the assistant prosecutor replied, “We have no idea as to that fact[.]” And, although there appears to be no dispute that the same district attorney’s office handled both prosecutions, there is no evidence in the record that anyone in that office was aware — at the time of the first prosecution — of Holt’s involvement in the crimes charged now. Nicely, in which we held that a district attorney’s knowledge of a cocaine possession charge by virtue of having obtained the indictment on that charge could be imputed to the assistant district attorney who represented the State in the prosecution of a related traffic citation, 305 Ga. App. at 390 (1), is distinguishable. In that case, the drug indictment was returned before the defendant entered a plea of nolo contendere to the citation for driving with a suspended license. Id. at 387. In contrast, Holt was not indicted on the allegedly-barred charges until long after he was charged with and convicted of theft by receiving. Smith also is distinguishable in that, as noted in this Court’s opinion affirmed by the Supreme Court, the warrants as to each of the offenses at issue “show[ed] that the other charges were known.” Smith v. State, 190 Ga. App. 246, 247 (378 SE2d 493) (1989). Here, the record contains no evidence as to what any arrest report or warrant associated with the theft by receiving prosecution said. A warrant for the current charges was obtained on October 15, 2014, but it was not executed until April 2015, and there is no evidence that anyone in the district attorney’s office saw that warrant prior to the resolution of the theft by receiving prosecution. Similarly, electronic records from the East Point Police Department indicate that the victim on October 13, 2014, identified Holt as the man who robbed her, but there is no evidence that anyone in the district attorney’s office saw those records — from a different, police department than that which apprehended Holt driving the victim’s vehicle — prior to resolving the theft by receiving charge. Holt has not met his burden of showing that the crimes currently charged were known to the proper prosecuting officer when Holt was prosecuted for theft by receiving. This failure is fatal to his procedural double jeopardy claim.

Decided October 28, 2016.

Brandi S. Reeves, for appellant.

Paul L. Howard, Jr., District Attorney, Kevin C. Armstrong, Assistant District Attorney, for appellee.

Judgment affirmed.

Phipps, P. J., concurs. Dillard, J., concurs fully in Division 1 and in judgment only in Division 2.

DILLARD, Judge,

concurring fully in Division 1 and concurring in judgment only in Division 2.

I concur fully as to Division 1 of the majority opinion. I concur in judgment only as to Division 2 because I do not agree with all that is said in that division of the majority opinion. As a result, Division 2 of the majority’s opinion decides only the issues presented in that division and may not be cited as binding precedent. See Court of Appeals Rule 33 (a).

        See AkhilReedAmar, Double Jeopardy Law Made Simple, 106YaleL.J. 1807,1814(1997) (“At common law, the double jeopardy idea encompassed two basic pleas in bar, prior acquittal and prior conviction — in law French, autrefois acquit de menie felonie and autrefois convict de menie felonie. The obvious idea here is that if a person has, on a prior occasion (autrefois) been acquitted or convicted of the exact same crime (la menie felonie) with which he is now charged, he can plead the previous judgment as a bar to the second indictment.”).

       The record on appeal does not contain basic documents related to the prosecution initiated by indictment on October 17, 2014, such as the indictment, plea hearing transcript, or judgment of conviction. Therefore, our account of those proceedings is based on statements by counsel and the court at the hearing on the plea in bar in this case. Although the indictment and plea hearing transcript are not part of the record before us, it appears that the trial court had the opportunity to review those documents and in fact appeared to read portions of them into the record at the hearing on the motion for plea in bar. The State suggests that Holt’s failure to present the trial court with sufficient evidence of the prior conviction was itself fatal to Holt’s double jeopardy claims, but we need not answer this question given our resolution of the appeal in the State’s favor based on the record before us.

       In May 2015, a grand jury had returned an indictment that additionally charged Holt with armed robbery based on allegations that he used a handgun to take a 2003 Chevrolet Impala from the alleged victim and charged him with hijacking a motor vehicle based on the alleged theft of the car. However, after Holt filed a motion to dismiss the indictment along with his plea in autrefois convict, the trial court nolle prossed the May 2015 indictment on the State’s motion.

       The name of the victim in this indictment apparently was different from that alleged in the 2014 indictment, but the State represented that this discrepancy was because the person who had been driving the car when it was taken is not the same person who owned the car.

       More precisely, the indictment accuses Holt of taking the items “from the person and immediate presence” of the victim.

       In applying the phrase “the same conduct” as used in OCGA § 16-l-7(b), wehaveusedthe phrase interchangeably with the phrase “the same transaction” and considered whether the crimes involved different victims, locations, and times. See Davis v. State, 287 Ga. App. 535, 536-37 (652 SE2d 177) (2007).

       The State appeared to admit at the hearing on the plea in bar that the prosecution was “aware apparently of a hij acking” at the time of the earlier prosecution but did not concede that the prosecution had reason to believe at that time that Holt was the one who committed that hijacking.


author: BARNES, Presiding Judge. PETERSON, Judge,

text:
    A16A1704.
    THE STATE v. HALL.
    (793 SE2d 522)
   BARNES, Presiding Judge.

A Clayton County police officer, Ryan Coker Hall, was indicted for simple battery based on his use of force during an encounter with a homeowner whom he believed might be a burglar. Hall filed a motion seeking immunity from prosecution under OCGA § 16-3-24.2, arguing that his use of force was reasonable and justified in light of the homeowner’s resistance to being handcuffed and detained. Following an evidentiary hearing that included witness testimony and cell phone video footage of most of the incident, the trial court granted Hall’s motion for immunity, resulting in this appeal by the State. For the reasons discussed below, we affirm.

On appeal from the trial court’s grant or denial of immunity under OCGA § 16-3-24.2, we view the evidence in the light most favorable to the trial court’s ruling. Sifuentes v. State, 293 Ga. 441, 444 (2) (746 SE2d 127) (2013). So viewed, the evidence presented at the immunity hearing showed that around noon on May 2, 2014, a concerned neighbor called 911 and reported a burglary in progress at a residential address in Jonesboro. The neighbor told the 911 dispatcher that a red Durango sport utility vehicle (“SUV”) was parked in the rear of a newly renovated house in the neighborhood and that a man was going in and out of the house. The neighbor described the man as “breaking into” the house and provided the dispatcher with the residential street address.

During the time period in question, Hall was an officer with the Clayton County Police Department assigned to a special crime suppression unit that responded to residential burglaries and other high priority calls. Hall and his partner responded to the 911 call of the burglary in progress.

Hall and his partner parked down the street from the house where the suspected burglary was taking place and were joined by another patrol officer and a police captain. The four officers then proceeded toward the house on foot with their guns drawn. When the officers arrived at the house, they did not see any visible signs of forced entry, such as broken windows or doors, but a red Durango SUV was parked in the back of the house, consistent with the description provided by the 911 caller.

Hall’s partner went to the back of the house, and Hall, the patrol officer, and the police captain approached the front of the house from different directions. The patrol officer stepped up onto the front porch, where he saw a 70-year-old man later identified as Almyahid Bin-Wahad at an upstairs window and gestured for him to come to the front door. Once Bin-Wahad came to the door, the patrol officer asked him to identify himself. However, Bin-Wahad would not provide his name and demanded to know why the officers were at his house. When asked if anyone else was inside the house, Bin-Wahad initially did not respond but then said that no one else was there. According to the patrol officer, Bin-Wahad was angry, waved his hands around as he spoke, and kept interrupting the patrol officer as he tried to explain that they were at the house to investigate a suspected burglary.

Unsure whether Bin-Wahad was in fact the homeowner or a possible intruder in light of the 911 call, the patrol officer asked Bin-Wahad to calm down and instructed him to come outside onto the front porch for further investigation. Bin-Wahad initially questioned why he needed to come outside but then stepped out onto the porch. The patrol officer and Hall, who had holstered their firearms, stood near Bin-Wahad on the porch while the police captain stood a short distance away and observed the interaction.

According to the officers, Bin-Wahad angrily told them that he was moving into the house that day, was belligerent and argumentative in response to their investigatory questions, would not keep his hands down, and kept yelling at the officers about their presence at the home despite their requests that he calm down. Bin-Wahad was yelling so loudly at the officers that Hall’s partner could hear him from the back of the house.

While on the porch, the officers requested to see Bin-Wahad’s identification, but Bin-Wahad said that his driver’s license was in the SUV parked in the back of the house. The officers then offered to have another officer get the driver’s license out of the SUV, but Bin-Wahad said the car doors were locked and the keys were inside the house. According to the patrol officer, “it was a little merry-go-round that we were on, where we were getting nowhere” in ascertaining Bin-Wahad’s identity.

As the officers spoke with Bin-Wahad and attempted to calm him down, Hall took hold of Bin-Wahad’s arm to keep him from moving around on the porch, conducted a pat-down search for weapons, and found none. According to the officers, Bin-Wahad remained belligerent and argumentative as they continued to question him, and Bin-Wahad became upset that Hall was holding onto his arm. Hall then repeatedly instructed Bin-Wahad to sit on the porch for safety reasons, but Bin-Wahad refused to cooperate until the police captain came up to the front porch and convinced him to sit down. Hall released Bin-Wahad’s arm once he sat down, and Bin-Wahad again said that no one else was in the house.

As Hall was speaking with the seated Bin-Wahad, the patrol officer went inside the house to secure it. Because he was focused on Bin-Wahad, Hall did not see the patrol officer enter the house, and the patrol officer did not communicate on the police radio that he was entering the house. Shortly thereafter, Hall received a radio transmission from his partner, who remained positioned at the back of the house, that he had just seen another male peeking out of a back window of the house.

Believing that another suspect was in the house and that Bin-Wahad had deceived the officers by claiming that no one else was there, Hall decided to place Bin-Wahad in handcuffs to more securely detain him on the porch while the inside of the house was secured. Hall testified that at that point, he did not know “if somebody was going to come running outside the house ... and now I’m dealing with two people on the front porch.”

Hall testified that after deciding to handcuff Bin-Wahad, he told Bin-Wahad that he was being detained and to put his hands behind his back. However, according to Hall, as he took Bin-Wahad’s left wrist to handcuff it, Bin-Wahad pulled his left arm away from Hall, turned his body, and began to stand. In response to Bin-Wahad’s actions, Hall testified that he attempted to use an arm bar technique as a defensive tactic to bring Bin-Wahad down on the porch so that he could be handcuffed. Hall further testified that Bin-Wahad’s position on the steps and Bin-Wahad’s movement made it difficult, for him to apply the arm bar technique, and Bin-Wahad fell to the ground and struck his head and shoulder on the front wall of the house as Hall attempted to use the technique on him. Hall and the police captain then handcuffed Bin-Wahad and detained him on the front porch while other officers secured the house.

After Bin-Wahad was handcuffed and detained on the porch, the house was secured by other officers, and no other suspects were found. The officers then realized that Hall’s partner had mistaken the patrol officer who initially entered the house for another suspect. Bin-Wahad’s driver’s license was obtained from his truck, and the officers were able to determine that he lived at the house. Once that determination was made, Hall removed the handcuffs and released Bin-Wahad, who had no visible injuries.

Unbeknownst to the officers, a witness who was visiting a friend at another house in the neighborhood recorded most of the police encounter on his cell phone through a front window of the house, which was approximately 200 feet away from where the encounter occurred. The cell phone recording did not include any audio footage of the police encounter.

A grand jury subsequently indicted Hall on one count of simple battery for “grabbing [Bin-Wahad’s] arm and taking him to the ground in a manner that caused injury to his neck and shoulder area.” Hall filed a motion to be granted immunity from prosecution under OCGA § 16-3-24.2 on the grounds that his actions were reasonable and justified in light of Bin-Wahad’s resistance to being handcuffed. The trial court thereafter conducted an evidentiary hearing on Hall’s immunity motion.

At the immunity hearing, the defense theory of the case was that Hall applied an arm bar technique to take Bin-Wahad to the ground as a defensive measure when Bin-Wahad resisted being handcuffed after the erroneous radio transmission about another suspect in the house, and that Hall’s use of force was reasonable and justified under the circumstances to protect himself. In contrast, the State’s theory of the case was that Bin-Wahad never resisted and that Hall instead grabbed him by the arm, lifted him up from the porch, threw him to the ground, and handcuffed him in an unreasonable and unprovoked use of force after hearing the erroneous radio transmission.

In support of the defense theory of the case, Hall testified, as summarized above, that he applied the arm bar technique as a defensive measure when Bin-Wahad resisted being handcuffed by pulling his left arm away from Hall, turning, and attempting to stand up on the porch after there had been a radio transmission that a second suspect was in the house. Likewise, as previously summarized, the other three responding officers testified that Bin-Wahad had been argumentative and belligerent throughout their encounter with him and had been uncooperative when given commands by the officers.

In addition to the testimony of Hall and the other responding officers, Hall presented the testimony of several experts in support of the defense theory of the case. An expert in the areas of police training, use of force, and police defensive tactics testified that officers are trained that a burglary in progress is a dangerous, high priority call. According to the expert, burglaries often are committed by more than one suspect, the suspects frequently are armed, and suspects caught in the act often will fight or flee or may try to “bully” their way out of being arrested. The expert also went through the cell phone video and made observations about the interaction between Hall and Bin-Wahad and about how Hall’s actions, including use of the arm bar technique, conformed to Clayton County Police Department’s use of force policy, in his professional opinion.

Hall presented the testimony of another expert in police training on the use of force and legal procedures. The expert testified that he had created still photographs from the cell phone video, and the photographs were introduced into evidence at the hearing. The expert gave a detailed explanation of the actions of Hall and Bin-Wahad that could be seen in each still photograph, and he testified that Hall’s particular stance while attempting to handcuff the seated Bin-Wahad was inconsistent with the State’s theory that Hall had pulled Bin-Wahad up from a seated position. Rather, the expert opined, the still photographs showed that Bin-Wahad had turned and tried to stand up when Hall attempted to handcuff him and that Hall then had attempted to apply the arm bar technique. The expert further opined that based on Bin-Wahad’s resistance to being handcuffed by attempting to turn and stand, Hall’s defensive actions were consistent with the use of force standards upon which Clayton County officers are trained.

The State relied upon the testimony of Bin-Wahad to support its theory of the case. In contrast to the testimony of Hall, Bin-Wahad testified that, without warning, Hall pulled him up from a seated position on the porch, threw him to the ground, and handcuffed him after receiving the radio transmission that someone else was in the house. Bin-Wahad denied that he attempted to pull away from Hall, turn, or stand up when being handcuffed, and he testified that, contrary to the testimony of the officers, he had not been belligerent toward them and had answered all of the questions that they posed to him. The State did not present any expert witnesses in support of its theory of the case.

In addition to witness testimony, a recording and transcript of the 911 call, a recording and transcript of the radio transmissions between the officers at the scene, and the cell phone recording of the police encounter were introduced into evidence at the hearing. Both sides claimed that the cell phone video corroborated their version of events.

After hearing the conflicting testimony and reviewing the cell phone video and other exhibits, the trial court entered its order granting Hall’s motion for immunity In granting Hall’s motion, the trial court expressly declined to credit the testimony of Bin-Wahad regarding the handcuffing incident. The trial court instead found that Hall had proven by a preponderance of the evidence that his actions were reasonable and justified because he had reason to believe that Bin-Wahad might be involved in a burglary in progress and that another suspect might be in the residence, Bin-Wahad was aggressive and belligerent to the officers, and Bin-Wahad had physically resisted being detained as Hall tried to handcuff him. Based on these findings, the trial court ruled that Hall was immune from prosecution for simple battery pursuant to OCGA § 16-3-24.2. This appeal by the State followed.

“A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force[.]” OCGA § 16-3-21 (a). If the person’s use of force is so justified, then OCGA § 16-3-24.2 provides that the person “shall be immune from criminal prosecution.”

Whether a person is immune from criminal prosecution under OCGA § 16-3-24.2 must be determined by the trial court before trial. Fair v. State, 284 Ga. 165, 165-166 (1) (664 SE2d 227) (2008). The defendant carries the burden of showing that he is entitled to pretrial immunity by a preponderance of the evidence. Bunn v. State, 284 Ga. 410, 413 (3) (667 SE2d 605) (2008). On appeal from the trial court’s grant or denial of pre-trial immunity, “we must view the evidence in the light most favorable to the trial court’s ruling and accept the trial court’s findings of fact and credibility determinations if there is any evidence to support them.” Sifuentes, 293 Ga. at 444 (2).

The State argues on appeal that the trial court erred by granting Hall’s immunity motion because Hall failed to prove by a preponderance of the evidence that his use of force in handcuffing and detaining Bin-Wahad was justified. We disagree.

The right of law enforcement officers to conduct an investigatory detention of a suspect “necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it,... [but] an officer may not use more force than is reasonably necessary under the circumstances.” (Punctuation and footnotes omitted.) Campbell v. Goode, 304 Ga. App. 47, 49-50 (2) (695 SE2d 44) (2010). See Mullis v. State, 196 Ga. 569, 577-578 (4) (27 SE2d 91) (1943) (police officer “can use no more force than is reasonably necessary under the circumstances, and cannot use unnecessary violence disproportionate to the resistance offered”). See also Graham v. Connor, 490 U. S. 386, 396 (109 SCt 1865, 104 LE2d 443) (1989); Long v. State, 261 Ga. App. 478, 479 (1) (583 SE2d 158) (2003). A suspect has no right to resist the use of reasonable force by an officer effectuating a lawful investigatory detention, see Bynes v. State, 336 Ga. App. 223, 228 (3) (a) (784 SE2d 71) (2016), and, conversely, an officer is entitled to protect himself from attack or resistance by a hostile suspect and “may lawfully detain the [suspect] in a manner reasonably necessary to protect his personal safety and to maintain the status quo.” (Citation and punctuation omitted.) Gray v. State, 296 Ga. App. 878, 879-880 (1) (676 SE2d 36) (2009).

The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.... The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular situation.

(Citations and punctuation omitted.) Graham, 490 U. S. at 396-397.

Mindful of this precedent, and in light of the testimony of Hall, the other three responding officers, and Hall’s experts in the use of force, we conclude that there was some evidence to support the trial court’s finding that Bin-Wahad was physically resisting being handcuffed and detained by Hall, and that Hall’s application of the arm bar technique as a defensive measure to bring Bin-Wahad to the ground and handcuff him was a use of force that was reasonable and proportionate to the resistance offered. “Construed in a light most favorable to the trial court’s ruling,... the evidence was sufficient for the trial court to determine that [Hall] met his burden of proving that he was entitled to immunity from prosecution pursuant to OCGA § 16-3-24.2.” (Citation and punctuation omitted.) State v. Jennings, 337 Ga. App. 164, 167 (786 SE2d 545) (2016). See State v. Bunn, 288 Ga. 20, 23 (701 SE2d 138) (2010).

The State argues that the cell phone video contradicts Hall’s version of events and shows that Bin-Wahad did not resist being handcuffed and detained, and that the trial court therefore erred in finding that Hall proved justification by a preponderance of the evidence. It is true that “[t]his Court owes no deference to a trial court’s factual findings gleaned from a review of a videotape that are not the subject of testimony requiring the trial court’s weighing of credibility or resolving of conflicts in the evidence.” Clay v. State, 290 Ga. 822, 825 (1) (A) (2), n. 1 (725 SE2d 260) (2012). See Hughes v. State, 296 Ga. 744, 746 (1), n. 5 (770 SE2d 636) (2015). But where the trial court’s resolution of the factual issues turns in part on an assessment of conflicting witness testimony, rather than exclusively on what is shown in a videotape, we defer to the trial court’s factual findings under the “any evidence” standard of review. See State v. Chulpayev, 296 Ga. 764, 771 (2), n. 5 (770 SE2d 808) (2015); Clay, 290 Ga. at 825 (1) (A) (2), n. 1; McKinney v. State, 326 Ga. App. 753, 755 (1), n. 5 (755 SE2d 315) (2014); State v. Floyd, 306 Ga. App. 402, 402, n. 1 (702 SE2d 467) (2010); State v. Mohammed, 304 Ga. App. 230, 231-232 (695 SE2d 721) (2010).

Here, there was no audio included in the cell phone video, and thus the video did not resolve the conflict in the testimony regarding whether Bin-Wahad was argumentative and belligerent toward the officers, and regarding whether Hall told Bin-Wahad that he was being detained and to put his arms behind his back before attempting to handcuff him. Furthermore, resolution of the central factual dispute in this case — whether Bin-Wahad pulled his left arm away from Hall, turned, and attempted to stand when Hall sought to handcuff him, or whether Hall without warning pulled Bin-Wahad up from a seated position on the porch and threw him to the ground — was based in part on the conflicting testimony of the witnesses rather than exclusively on a review of the cell phone video.

Because resolution of the immunity issues in this case turned in part on witness testimony, we defer to the trial court’s factual findings. We therefore affirm the court’s ruling that Hall established by a preponderance of the evidence that his use of force was reasonable and justified under the circumstances, entitling him to immunity from prosecution. See Bunn, 288 Ga. at 23; Jennings, 337 Ga. App. at 167; Mohammed, 304 Ga. App. at 231-232.

Judgment affirmed.

Boggs and Peterson, JJ., concur fully and specially.

PETERSON, Judge,

concurring fully and specially.

I concur in the majority opinion and all that I understand it to say I write separately to make clear my understanding of what that opinion says. As the majority opinion explains, the critical factual dispute was “whether Bin-Wahad pulled his left arm away from Hall, turned, and attempted to stand when Hall sought to handcuff him” (and thereby provided Hall with reasonable grounds to believe him an imminent threat), “or whether Hall without warning pulled Bin-Wahad up from a seated position on the porch and threw him to the ground.”

The video is not clear enough for us to determine with confidence which disputed set of facts are true. If it was, we would owe no deference to the trial court’s factual findings on this question, regardless of whether they were based in part on resolving conflicting witness testimony. But we do owe deference here because the video alone does not resolve the factual dispute, and the trial court had to resolve conflicting witness testimony to decide the matter.

Decided October 28, 2016.

Tracy Graham Lawson, District Attorney, Erman J. Tanjuatco, Assistant District Attorney, for appellant.

Keith C. Martin, for appellee.

I am authorized to state that Judge Boggs joins in this special concurrence.

       For ease of reference, the four officers who first responded to the scene will be referred to collectively as the “officers” and separately as Hall, Hall’s partner, the patrol officer, and the police captain.

       The patrol officer was later disciplined for violating protocol by entering the house to secure it without assistance and by not announcing the same on the radio.

       The State does not contest that Hall was conducting an investigatory detention rather than a de facto arrest of Bin-Wahad when he handcuffed and restrained Bin-Wahad on the front porch. See generally Smith v. State, 281 Ga. 185, 187 (2) (640 SE2d 1) (2006) (“This Court has recognized that officers may handcuff a suspect during an investigatory stop when such action is either reasonable under the circumstances to protect themselves or the public, or to maintain the status quo.”); Gray v. State, 296 Ga. App. 878, 880 (1) (676 SE2d 36) (2009) (handcuffing of suspect did not transform investigatory detention into de facto arrest). Nor does the State contest that Hall had a reasonable and articulable suspicion to conduct an investigatory detention of Bin-Wahad. See generally Smith v. State, 165 Ga. App. 333, 334 (1) (299 SE2d 891) (1983) (“A police officer is authorized to make a brief, investigatory detention of an individual for the purpose of maintaining the status quo and obtaining information, provided he can point to specific and articulable facts which, together with rational inferences drawn therefrom, reasonably warrant such an intrusion.”).