author: Doyle, Chief Judge.

text:
    A15A1201.
    MEDLEY v. MOSLEY.
    (780 SE2d 31)
   Doyle, Chief Judge.

Venyke Medley appeals from the trial court’s final order, which awarded Justan Mosley (“Mosley”), the father of her son, Justan, Jr. (“Justan”), primary physical custody of Justan, and the trial court’s order on Mosley’s petition for contempt or to compel, which awarded Mosley $2,580 in back child support for the period of time prior to the entry of a support order. Medley appeals, arguing that (1) Fulton County Superior Court’s use of officers other than superior court judges in making custody decisions is unconstitutional; (2) the court’s decision to grant an emergency motion to modify custody from Medley to Mosley was an abuse of discretion because Medley was not present at the conference on the motion; (3) the superior court abused its discretion because (a) there was insufficient evidence to show that permanently giving Mosley primary custody was in Justan’s best interests, and (b) there was insufficient evidence that Medley’s failure to allow visitation with Mosley materially affected Justan’s welfare or was not in his best interests; and (4) the trial court erred by awarding back child support to Mosley because (a) it was erroneous to award the support for a period of time prior to entry of a support order, and (b) Medley’s lack of income was not taken into account. We affirm in part, vacate in part, and remand the case for the reasons that follow.

The record shows that Mosley filed a legitimation action in Clayton County with regard to Justan, who was born in July 2008, and an order was entered in March 2012, which included a parenting plan awarding primary physical custody and support to Medley and visitation to Mosley. Thereafter, on July 9, 2013, Mosley filed the instant “Petition for Modification of Child Custody, Child Support, and Visitation” (“the Petition”), alleging that Medley had been denying him visitation and interfering with his parental rights since entry of the March 2012 order.

A 30-day status conference was scheduled for August 13, 2013, on which date Mosley filed a “Motion for Emergency Temporary Child Custody Hearing and Motion for Contempt” (“Emergency Petition”). At the conference, despite Medley’s absence, the court heard evidence related to Mosley’s Emergency Petition. Based on Mosley’s evidence, the court entered a Temporary Custody Order, awarding Mosley sole legal and physical custody, awarding Medley supervised visitation only if the parties could not agree on visitation, and suspending Mosley’s child support requirement.

In its order, the court found that in January 2013, Mosley had filed a motion for contempt in Clayton County, alleging that Medley had withheld visitation, and the parties reached a mediated agreement on April 23,2013. Nevertheless, on April 25, Medley repudiated the agreement, and a hearing on the matter was scheduled for June 17,2013, at which hearing Medley again agreed to adhere to the April 23 settlement agreement. Immediately thereafter, however, Medley refused to allow Mosley his visitation under the agreement, and she also filed a temporary protective order (“TPO”) against him, which was later dismissed on August 6, 2013, for lack of evidence. On August 9, 2013, despite Mosley arriving at a pre-arranged location to exchange Justan, Medley failed to appear, prompting Mosley to file the Emergency Petition.

On August 19, 2013, Medley filed her answer to the Petition, asking for the court to return custody to her, alleging that she had prevented Mosley from visiting with Justan because visits with Mosley disturbed him, leading Medley to seek psychological care for Justan from psychologist David Rush; Medley also claimed that Mosley was not paying child support as required. Medley also filed an emergency motion for a custody modification, a Rule 1000-4 Request to have all matters presided over by a superior court judge, and a motion for return of custody, alleging, among other things, that it was in the best interests of Justan to be returned to her.

On September 18, 2013, Medley moved for appointment of a guardian ad litem (“GAL”) on the basis that Dr. Rush was concerned because Justan had described being spanked by Mosley and had drawn what Dr. Rush described as a “smoking apparatus but not a cigarette” after Justan’s prior visits with Mosley; additionally, Medley alleged that Justan’s former pre-kindergarten teacher reported that Justan had a difficult time concentrating after previously visiting with Mosley. Mosley, though he did not agree that he had harmed the child, consented to appointment of a GAL. On November 11,2013, a consent order appointing Jessie R. Altman as GAL was entered by a superior court judge.

Astatus conference was scheduled for October 2,2013, before the court, but because Medley’s Rule 1000-4 Request prevented a hearing before an official other than a superior court judge the parties instead mediated. The parties came to an agreement, entered as a consent order on October 18, which left primary physical custody with Mosley, granted Medley joint legal custody and visitation every second, third, and fourth weekend per month, and granted her specified parenting time over the approaching winter holidays. An amended order was entered on October 25, adding that custody exchanges would occur at a specified location.

On February 10, 2014, Mosley filed a motion to compel discovery, alleging that Medley had failed to respond to discovery he had filed on October 23, 2013. Medley responded, contending that she had provided responses and the motion for contempt should be denied. A consent agreement for child support was entered on May 13, 2014, stating that Medley would pay $250 per month to Mosley. Thereafter, Medley filed a domestic relations financial affidavit, and the parties were ordered to mediation before June 30, 2014.

On October 31, 2014, the superior court held a hearing and as a result of previous mediations, the parties had agreed on certain provisions, but they needed the court to decide (1) which parent would have school-year primary custody; (2) which parent would have summer session primary custody; and (3) various other issues. At the hearing, Medley testified that prior to the Clayton County contempt motion, she had begun limiting Justan’s visits with Mosley because Justan was not acting like himself afterward and instead was crying and upset. Medley did not force Justan to go with Mosley when Justan started protesting to her that he wanted to stay with her instead; she admitted that this “was wrong,” but at the time, she believed that something during the visits must have caused Justan to behave that way. Medley admitted that she registered Justan for basketball, and it was inconvenient for Mosley to attend games and practices because he would have to drive about 25-30 minutes. Medley also admitted that she had been charged with simple battery for behavior at a custody exchange with Mosley, and she was awaiting a hearing on the charge.

The GAL testified that her recommendation was for Mosley to have primary custody because Medley worked nights and Medley’s mother was providing most of the care for Justan when Medley had custody. Altman stated that Medley admitted she denied visitation when Justan refused to go with Mosley, but Medley had learned that is not acceptable. Finally, all of Medley’s negative allegations about Mosley, including allegations of drug use in front of Justan, were not supported by the GAL’s visits and interactions with him and Justan.

After the hearing, on November 4, 2014, the trial court ordered joint legal and physical custody, but with Mosley having primary physical custody during the school year and Medley having the majority of the summer. The trial court specified parental decision-making authority, off-custody visitation for each parent, locations for custody exchanges, directions for extracurricular activities and communications between the parents. The trial court awarded no child support per the parties’ agreement, but ordered them to split the costs of uncovered medical expenses and extracurricular activities, and it ordered Mosley to maintain health insurance for Justan. On November 10, 2014, the trial court entered an order in response to Mosley’s contempt motion, ordering attorney fees and back child support in the amount of $2,580, which was half of Mosley’s proven child-related expenses over the applicable time frame. This appeal followed.

1. As an initial matter, we note that although Medley enumerates six errors as stated above, her brief provides argument and citations of authority only as to four of those errors, which we address below, despite the fact that the argument section of her brief is divided into only two sections. Pursuant to Court of Appeals Rule 25 (c) (2) any unsupported enumeration of error is deemed abandoned.

2. Medley argues that the trial court abused its discretion by awarding primary physical custody to Mosley without a showing of how her failure to allow visitation with Mosley materially affected Justan’s welfare or that the change was in Justan’s best interests.

[A] trial court’s decision regarding a change in custody/ visitation will be upheld on appeal unless it is shown that the court clearly abused its discretion. Furthermore, a trial court faced with a petition for modification of child custody is charged with exercising its discretion to determine what is in the child’s best interest. And where there is any evidence to support the trial court’s ruling, a reviewing court cannot say there was an abuse of discretion.

In this case, we find no error in the temporary order modifying custody, or the ensuing orders resulting in Mosley having primary physical custody. The evidence before the judicial officer showed that Medley, in violation of numerous court orders and consent agreements, prevented Mosley from exercising visitation with Justan between December 2011 and August 2013.

As recently noted by our Supreme Court, the fact that a parent has interfered with the other parent’s visitation supported the trial court’s finding that it was more likely that the other parent will provide visitation and abide by the Court’s Orders, and its conclusion that it was in the best interest of the child to modify custody.

Medley also often left Justan in his grandmother’s custody rather than allowing him to visit with his father while she worked nights.

And during the time period between the temporary award of primary custody to Mosley and the hearing before the trial court, Justan was doing very well at school and was emotionally adjusted, which findings support the trial court’s order continuing primary custody with Mosley. Medley’s behavior, including taking out an unsupported TPO against Mosley but then inviting him to her home for Justan’s birthday party and committing an act to warrant a charge for simple battery, also supported the trial court’s determination that Justan should remain in the primary physical custody of Mosley during the school year. Accordingly, we cannot say that the superior court erred by granting Mosley primary physical custody during the school year.

3. Medley also argues that the trial court erred by awarding child support for the period of time prior to entry of an order because the trial court incorrectly based its ruling on Weaver v. Chester, which Medley contends applies only to putative fathers who fail to support their children. As explained in Smith v. Carter, however, the requirement to provide child support extends to both mothers and fathers, and the custodial parent may seek back support for at most the actual expenses the parent provided during the time the noncustodial parent failed to pay.

Decided November 17, 2015.

Shana M. Rooks, for appellant.

Kevin B. Hicks, for appellee.

Despite Mosley’s argument that the award is supported by the law,

in determining what portion of the amount actually expended must be born by the noncustodial parent, a trial court is required to follow the Child Support Guidelines, which would include at least a consideration of the custodial parent’s income, the noncustodial parent’s income, and other child support obligations of the parents.

Because the record does not reflect that the superior court applied the child support guidelines to the parties’ incomes during the time period in question to support the Court’s decision to award Mosley half his proven expenditures, we vacate the Order on Petition for Contempt and to Compel and remand for further proceedings consistent with this opinion.

Judgment affirmed in part and vacated in part, and case remanded with direction.

Phipps, P. J., and Boggs, J., concur.

       Medley claimed she did not believe her attendance was necessary because she believed service was improper.

       Magistrate Judge Margaret Dorsey was sitting by designation to hear the Emergency Petition.

       The court did not enter an order of support requiring Medley to make payments to Mosley.

       This incident occurred after the instant Petition had been filed.

       See Murphy v. Murphy, 330 Ga. App. 169, 172-173 (4) (767 SE2d 789) (2014). Medley’s first enumeration that the use of judicial officers in making custody decisions is unconstitutional presents nothing for review because it was not ruled upon by the trial court. See Ga. Bd. of Dentistry v. Pence, 223 Ga. App. 603, 604 (1) (478 SE2d 437) (1996) (holding that an appellate court will not rule on a constitutional question “unless it clearly appears in the record that the trial court distinctly passed on the point”) (citation and punctuation omitted); Raskin v. Wallace, 215 Ga. App. 603, 604 (1) (451 SE2d 485) (1994) (holding that if a trial court did not “distinctly pass or rule on” a constitutional issue, an assertion as to it on appeal “presents nothing for review”) (citation and punctuation omitted).

       To the extent that Medley contends that the temporary order entered by the magistrate judge in August 2013 was erroneous because Medley was not at the hearing, she has not cited any authority to support this contention, and it is therefore deemed abandoned. See Division 1, supra; Court of Appeals Rule 25 (c) (2).

       (Punctuation and footnotes omitted.) Jackson v. Sanders, 333 Ga. App. 544, 558-559 (5) (773 SE2d 835) (2015).

       (Punctuation omitted.) Fifadara v. Goyal, 318 Ga. App. 196, 201 (3) (733 SE2d 478) (2012), quoting Viskup v. Viskup, 291 Ga. 103, 105 (2) (727 SE2d 97) (2012).

       See Shotwell v. Filip, 314 Ga. App. 93, 96-97 (1) (722 SE2d 906) (2012) (holding that mother’s actions of allowing maternal grandmother rather than father to keep the child constituted material change in circumstances).

       See Viskup, 291 Ga. at 105.

       195 Ga. App. 471 (393 SE2d 715) (1990).

       305 Ga. App. 479 (699 SE2d 796) (2010).

       See id. at 481-482 (2).

       Id. at 482 (2).


source: Caselaw Access Project

license: Public Domain

text:
    A15A1222.
    THE DAN J. SHEEHAN COMPANY v. THE FAIRLAWN ON JONES CONDOMINIUM ASSOCIATION, INC. et al.
    (780 SE2d 35)
   Doyle, Chief Judge.

The Dan J. Sheehan Company (“Sheehan”), a renovation and construction company, sued The Fairlawn on Jones Condominium Association, Inc. (“COA”) and The Fairlawn on Jones Homeowners’ Association (“HOA”), seeking payment of a judgment Sheehan had obtained against the HOA for its failure to pay for work Sheehan had performed. Sheehan’s complaint alleged three counts: successor liability of the COA based on corporate continuation theory (Count 1), successor liability based on fraudulent attempt to avoid liability (Count 2), and fraudulent transfer under the Uniform Fraudulent Transfers Act (“UFTA”) (Count 3). Sheehan also sought prejudgment interest, attorney fees, and punitive damages. All parties moved for summary judgment, and the trial court granted summary judgment in favor of the defendants on each count. Sheehan now appeals, contending that the trial court erred because the undisputed facts show that (1) the newly formed COA was a mere continuation of the HOA, (2) the COA’s formation was a fraudulent attempt to avoid the HOA’s liability, and (3) Sheehan is entitled to summary judgment. Because the trial court incorrectly applied the successor liability doctrine, we affirm in part and reverse in part.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant 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.

The material facts are essentially undisputed, and the record shows that the HOA was the original entity organized as the association for the Fairlawn on Jones condominium, a four-building, fifteen-unit residential complex. The HOA was created by articles of incorporation, governed by a board of directors, and comprised of the owners of the condominium units. The common areas of the condominium were jointly owned by the unit owners; the HOA did not own the real property. Each unit owner had voting rights and was required to pay dues and a proportionate share of the common expenses of the HOA.

To address certain needs for repair, the HOA hired Sheehan to perform the work, which it did. After a dispute arose over payment for the work, Sheehan sued the HOA in 2009, seeking payment.

With the litigation pending, in June 2012, the unit owners held an annual meeting of the HOA and voted to begin the process of amending and restating the condominium declaration and bylaws to form a new association (the COA) and make some minor changes to better conform with the Georgia Condominium Act, such as adopting a plat and identifying parking spaces as common elements.

In September 2012, the HOA moved to continue the pending October 2012 trial date, and the trial date was re-set to December 2012. On November 2, 2012, the Certificate of Incorporation for the new COA was filed with the Secretary of State, and on November 13, 2012, the HOA board members voted to amend the HOA budget so that it would cease operations on November 27, 2012. On November 27, 2012, less than a week before trial, the unit owners voted to adopt the Amended and Restated Declaration of Condominium Fair lawn on Jones (“Restated Declaration”). According to an affidavit by Robert Conway, who served as president of both the HOA and COA, the Restated Declaration “transferred responsibility for governing the condominium ... to the [COA].” Sheehan apparently was not made aware of the transfer, and nothing about the COA was filed in the trial court.

On December 3,2012, the trial began, the HOA participated, and the jury returned a verdict in favor of Sheehan in the amount of $122,159.95 plus $47,097.11 in attorney fees. On January 30, 2013, a judgment was entered in favor of Sheehan and against the HOA in the amount of $169,257.06.

In October 2013, after the HOA and the COA refused to satisfy the judgment, Sheehan filed the present case against the HOA and COA. All parties conducted discovery and ultimately moved for summary judgment. Following a hearing, the trial court denied Sheehan’s motion and granted the motion filed by the HOA and COA. Sheehan now appeals.

1. Sheehan contends that the trial court erred by ruling that the COA was not a mere continuation of the HOA, and was therefore not subject to successor liability for the HOA’s judgment. We conclude that, based on the undisputed facts, the COA was a mere continuation of the HOA.

Ordinarily, a successor entity does not assume the liabilities of its predecessor unless “(1) there is an agreement to assume liabilities; (2) the transaction is, in fact, a merger; (3) the transaction is a fraudulent attempt to avoid liabilities; or (4) the [successor] is a mere continuation of the predecessor corporation.” The latter of these circumstances refers to “the common law doctrine of corporate continuity^ which] applies where . . . there is a substantial identity of ownership and a complete identity of the objects, assets, shareholders, and directors The corporate continuity doctrine is one of equity.

Here, after the COA was formed, it had the same purpose, same subject property, same board of directors, same officers, same voting members, same unit owners, same physical location, same registered office, and same authority to assess dues on the same people to pay for the same expenses. For practical purposes, nothing changed except the name of the association — the subject property did not change, the corporate composition did not change, the voting membership did not change, and the dues assessment capacity did not change.

Despite this, the trial court ruled that Sheehan had failed to show that the HOA and COA have the same assets on the ground that “there was no transfer of assets between the entities because the [HOA] never owned any assets since all of the common elements and limited common elements are owned by the unit owners as tenants in common.” But the doctrine of corporate continuity merely requires an “identity” of assets, and in the present factual context, the identity of assets is the same. As a formal matter, the HOA and the COA do not own real property, so this demonstrates no distinction between their “assets.” Further, their ability to raise capital through their fee and assessment authority is identical — it comes from the same people who own the same condominium units and who are obligated to pay the same common expenses. In the face of this structure, the defendants point to no distinction between the HOA and the COA that reveals any material difference between the two entities’ “assets” for purposes of corporate continuity.

Further, we note that the COA operated on the same Georgia Power billing account held by the HOA, which remained in the HO A’s name after the creation of the COA. And the COA continued to pay premiums on a hazard and liability insurance policy held by the HOA, in the name of the HOA. Sheehan argues that these facts demonstrate corporate continuity, but the trial court dismissed their relevance, concluding that the utility account and insurance policy were not assets transferred to the COA, and instead liabilities. But even assuming this characterization is correct, it does not account for why the COA could informally and unilaterally choose to assume some HOA liabilities but not others.

Based on the undisputed facts before us, we conclude that the doctrine of corporate continuity should apply here because the HOA and the COA have identical ownership structures, objects, assets, voting members, and directors. Thus, the trial court erred by granting the defendants’ motion for summary judgment as to the corporate continuation count and by denying Sheehan’s motion for summary judgment as to this count.

2. Sheehan also argues that the trial court erred by granting summary judgment against it as to Count 2 based on an alleged fraudulent attempt to avoid liability, and Count 3 alleging a fraudulent transfer under the UFTA.

With respect to Count 2, in light of our holding in Division 1, the trial court erred by concluding as a matter of law that the creation of the COA did not amount to a continuation of the HOA. As to the element of fraud, the record is mixed. For example, the timing of the creation of the COA, essentially on the eve of trial, could support an inference that it was done for the purpose of improperly avoiding liability, especially since Sheehan was not notified of the existence of the COA in time to address the issue at the initial trial, and in light of the HOA’s option to conform with the Georgia Condominium Act without creating a new entity altogether. On the other hand, there is evidence in the record that the HOA had intended to address the switch sooner and that the COA formation was a good faith legal exercise. On this record, and in light of Sheehan’s burden to prove fraudulent intent, summary judgment is not appropriate in favor of either party on Count 2.

Decided November 17, 2015

The Conner Law Group, David M. Conner, Patrick W. Hinchey, for appellant.

McCorkle & Johnson, Mathew M. McCoy, Colby E. Longley, for appellees.

With respect to Count 3, the UFTA explicitly requires a “transfer” of an “asset,” which is defined as certain forms of “property.” Because neither entity owned property in this classic sense, the UFTA is not the appropriate vehicle for Sheehan’s recovery, and the trial court correctly granted summary judgment in favor of the defendants as to Count 3.

3. Sheehan argues that the trial court erred by denying him summary judgment. In light of our rulings in Divisions 1 and 2, we agree as to Count 1 based on corporate continuation doctrine. Factual issues preclude summary judgment as to Count 2 (fraudulent attempt to avoid liability), and Count 3 (UFTA) was appropriately resolved as a matter of law in favor of the defendants.

Judgment affirmed in part and reversed in part.

Phipps, P. J., and Boggs, J., concur.

       OCGA § 18-2-70 et seq. Effective July 1, 2015, this Act became known as the Uniform Voidable Transactions Act. See Ga. L. 2015, p. 996, § 4A-1/SB 65.

       (Citation omitted.) Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       The proportion of common expenses owed by an owner was determined according to the size of the owner’s unit.

       The 2009 suit was a precursor to the present case, which arose in 2013.

       OCGA § 44-3-70 et seq.

        Bullington v. Union Tool Corp., 254 Ga. 283, 284 (328 SE2d 726) (1985).

       (Emphasis supplied.) Davis v. Concord Commercial Corp., 209 Ga. App. 595, 597 (1) (434 SE2d 571) (1993).

       See In Re: Acme Security, 484 BR 475, 487 (III) (B) (Bankr. N.D. Ga. 2012).

       The defendants argue that the COA was formed to more fully conform to the requirements in the Georgia Condominium Act. Nevertheless, those changes did not alter in any material way the voting members, unit owners, property governed, officers, board members, or assessment structure.

       See generally Oliver v. Oliver, 118 Ga. 362, 369 (45 SE 232) (1903) (“Equity abhors mere names, and looks to the substance.”).

       This was apparently done so the COA could avoid the requirement to pay a deposit or demonstrate creditworthiness when establishing a new account.

       See Pet Care Professional Center v. Bellsouth Advertising & Publishing Corp., 219 Ga. App. 117, 118-119 (1) (464 SE2d 249) (1995) (summary judgment appropriate where undisputed record establishes corporate continuity); Davis, 209 Ga. App. at 597 (1); Johnson-Battle Lumber Co. v. The Emanuel Lumber Co., 33 Ga. App. 517 (126 SE 861) (1925). See also Sarl v. Kapla USA, LP, Case No. 12-0230 *25 (III) (E) (S.D. Ga. 2013) (“An entity is but a continuance of the old entity by reason of such identity of name, objects, assets, and stockholders.”), quoting Ney-Copeland & Assoc., Inc. v. Tag Poly Bags, Inc., 154 Ga. App. 256, 257 (267 SE2d 862) (1980) (“Based on the identical nature of the prior partnership and the newly formed corporation, which constitute a single continuous business entity,” the acts of the prior partnership could be attributed to the later formed corporation for Long Arm jurisdiction purposes); Ed Peters Jewelry Co. v. C & J Jewelry Co., 124 F3d 252, 268 (H) (B) (2) (d) (1st Cir. R.I. 1997) (“[Ejquity is loath to elevate the form of the transfer over its substance, and deigns to inquire into its true nature.”).

       See generally Bullington, 254 Ga. at 284.

       See generally Mills v. Parker, 253 Ga. App. 620, 624 (1) (a) (560 SE2d 42) (2002) (summary judgment inappropriate where factual question remains as to fraudulent intent); In Re: Acme Security, 484 BR at 485-486 (III) (A) (discussing fraud element of attempt to avoid liabilities).

       OCGA §§ 18-2-71 (2); 18-2-73; 18-2-75.


author: ELLINGTON, Presiding Judge. DILLARD, Judge,

text:
    A15A1301.
    HOLLAND v. THE STATE.
    (780 SE2d 40)
   ELLINGTON, Presiding Judge.

A Gwinnett County jury found Daunte Holland guilty beyond a reasonable doubt of trafficking in cocaine, OCGA § 16-13-31 (a); and possession of marijuana with intent to distribute, OCGA § 16-13-30 (j) (1), in violation of the Georgia Controlled Substances Act. Following the denial of his motion for a new trial, Holland appeals, challenging the sufficiency of the evidence and contending that he received ineffective assistance of counsel. For the reasons explained below, we reverse.

1. Holland contends that the State failed to adduce any evidence connecting him to the cocaine or marijuana that he is charged with unlawfully possessing; rather, he argues, the evidence proved no more than his mere presence in the house where the contraband was found during the execution of a search warrant. Based on this, he contends that the evidence was insufficient to sustain his convictions.

On appeal from a criminal conviction, the appellate court

view[s] the evidence in the light most favorable to the verdict[,] and an appellant no longer enjoys the presumption of innocence. [The appellate court] determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, [the appellate court] must uphold the jury’s verdict.

(Citations omitted.) Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

Viewed in the light most favorable to the verdict, the record shows that, on March 11, 2011, Gwinnett County police officers executed a search warrant at 999 Dallas Way, Lawrenceville. At trial, one officer, who entered the house with a SWAT team to execute the search warrant, testified that Holland was present in the house along with “a young female, Dasmine Holland, Dreshawn Tyler and Davante Holland, as well as a male, James Tab.” The officer testified that Dasmine Holland and Davante Holland are Holland’s children; Dreshawn Tyler is his stepchild; and “James Tab is a friend who was helping [Holland] out at the time due to a leg injury.” The officer summarized that the four males found in the house (Holland, Davante Holland, Dreshawn Tyler, and Tab) were all “over the age of 17 and 18.”

That officer, who entered the house through the front door, described the house’s floor plan as follows: the house is a split-level style house; entering from the front door, one enters a living room which has an area at the back set up for playing video games; at the rear of the game area is a sliding glass door leading into the back yard. In the living room, a split set of stairs leads either down into the garage/laundry room area or up to a hallway. The officer testified, “On the right side of the hallway, you have two bedrooms, Dreshawn Tyler’s bedroom and Davante Holland’s bedroom.” The first door on the left side of the hallway is to a half bath; the second door on the left is to the master bedroom. At the end of the hall is a small closet. The master bedroom has an attached bathroom, and inside that bathroom is a set of stairs that lead up to a bonus room. Inside this bonus room is an access door to the attic. A second officer who searched the house testified similarly about the floor plan.

A third officer testified that he assisted in executing the search warrant and was assigned “as a containment on the back side of the house.” Just before the SWAT team entered the house from the front, that officer noticed that the shade was up on “the top left-hand window as you’re facing the back of the house,” and through the window he “could see two people inside the house [,]... an older male and a young female, early teens.” He was able “after the fact” to identify the male as Holland. For 20 to 30 seconds, the officer saw Holland apparently sitting in that room while the girl walked in and out of the officer’s view. That officer “never made it into the house” and never saw the layout of the house — “[j]ust right inside the sliding-glass door is as far as [he] got.” Therefore, he could not identify the room he saw Holland in as the master bedroom, as opposed to any other room, but assumed it was the master bedroom “going by the [first officer’s] drawing” of the floor plan during that officer’s trial testimony.

During the search, the officers found in the master bedroom various quantities of powder and solid cocaine (in many, small plastic baggies), marijuana (also packaged in small baggies), two digital scales, and additional plastic baggies of various sizes. Some of the contraband was found in a drawer; some was found under a mattress or under the bed. In the attic, officers found more packages of powder and solid cocaine, marijuana, and a digital scale. Some of the packages of drugs were lying in various places atop the insulation; more drugs and the scale were stuffed inside of a shoe and a boot.

The State adduced evidence that an undercover officer bought crack cocaine from Holland on two separate occasions in 2001. Holland pled guilty to those charges, and the State tendered a certified copy of his prior convictions at trial. The State proffered the other-acts evidence solely on the issue of intent, and the trial court instructed the jury to limit its consideration of the evidence to that issue.

Holland’s knowing possession of the cocaine found in the master bedroom and in the attic was an essential element of the offense of trafficking in cocaine as charged in the indictment. Cobarrubias-Garcia v. State, 316 Ga. App. 787, 789 (730 SE2d 455) (2012) (physical precedent only). Similarly, his knowing possession of the marijuana found in those locations was an essential element of possession of marijuana with intent to distribute. See id. “Possession of contraband may be actual or constructive.... A person who knowingly has direct physical control over a thing at a given time is in actual possession of it.” (Citation and punctuation omitted.) Lopez-Vasquez v. State, 331 Ga. App. 570, 572 (1) (771 SE2d 218) (2015). In this case, the State adduced no evidence that Holland had direct physical control over any of the contraband found in the house. Consequently, it is undisputed that he was not in actual possession of the drugs, and the issue before us is whether he was in constructive possession of the drugs.

“A person may be found to have had constructive possession of contraband if it is shown that he had both the power and the intention at a given time to exercise dominion or control over it.” (Citation and punctuation omitted.) Aquino v. State, 308 Ga. App. 163, 165 (1) (706 SE2d 746) (2011). See Cobarrubias-Garcia v. State, 316 Ga. App. at 789 (accord). But a finding of constructive possession cannot be based upon a defendant’s mere spatial proximity to contraband at a given time; rather “a finding of constructive possession must be based upon some connection between the defendant and the contraband[.]” (Citation omitted.) Stacey v. State, 292 Ga. 838, 839-840 (1) (a) (741 SE2d 881) (2013). Further, “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-14-6.

In this case, the State failed to adduce any evidence that Holland owned or rented the house, such legal control as would give rise to a rebuttable presumption of possession of contraband found on the premises. The State failed to adduce any evidence that Holland occupied the master bedroom or that he kept personal belongings there.

Viewed in the light most favorable to the jury’s guilty verdict, the only evidence that he had even entered the specific locations in the house where the drugs were found (the master bedroom and the attic, which could be reached from the master bedroom) was the testimony of the containment officer who saw him for 20 to 30 seconds through a window which the officer assumed to be the master bedroom. There was no evidence that Holland had ever been in the attic.

In addition to the lack of evidence connecting Holland specifically to the locations in the house where the drugs were found, the State did not even prove that Holland lived at that address, had keys to the house, kept personal belongings anywhere in the house, or received mail there. In fact, the State failed to adduce any evidence that Holland had been inside the house any earlier than scant moments before the search began. The evidence showed, at most, that Holland had momentary access to the master bedroom just before contraband was found there.

[A] mere occupant, as distinguished from a resident, does not necessarily have the requisite control over the premises to authorize the inference that he possesses all property found thereon. If such were the case, a person’s mere presence at the scene of the discovery of illegal drugs would authorize his conviction, and that plainly is not the law. Accordingly, evidence merely showing that contraband was found in a residence occupied by the defendant is simply insufficient to support a conviction, especially where other persons had equal access to the contraband and therefore an equal opportunity to commit the offense.

(Punctuation and footnotes omitted.) Cobarrubias-Garcia v. State, 316 Ga. App. at 790. See also Johnson v. State, 245 Ga. App. 583, 585 (538 SE2d 481) (2000) (accord).

Because the State failed to show that a presumption of possession applies, and failed to adduce any evidence to connect Holland to the drugs found in the master bedroom and the attic, the evidence was insufficient to sustain his convictions for trafficking in cocaine and possession of marijuana with intent to distribute. Mitchell v. State, 268 Ga. 592, 593 (492 SE2d 204) (1997); see Cobarrubias-Garcia v. State, 316 Ga. App. at 790-791 (Evidence of possession of drugs was insufficient, where the contraband was located hidden in the chimney, inside the wall in two bathrooms, and inside one bedroom, when the defendant was found standing near the front door, although clothes the defendant had worn were found in another bedroom.); Aquino v. State, 308 Ga. App. at 164-168 (1) (Evidence of possession of methamphetamine was insufficient, where the contrabánd was located inside a locked house in a black bag in a drawer when the defendant was found standing in the driveway, even though the defendant’s driver’s license was found inside in a bedroom, the defendant had on his person a key to the house and to a car parked there whose tag was inside the house, and the defendant had been seen opening the door of the house while holding a black bag.).

Decided November 17, 2015.

Stephen M. Friedberg, for appellant.

Daniel J. Porter, District Attorney, Samantha Routh, Assistant District Attorney, for appellee.

2. In light of our holding in Division 1, supra, Holland’s remaining claim of error is moot.

Judgment reversed.

McFadden, J., concurs. Dillard, J., concurs in judgment only.

DILLARD, Judge,

concurring in judgment only.

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

       A forensic chemist with the Georgia Bureau of Investigation tested the cocaine. The combined weight of all of the cocaine was over 400 grams. The chemist testified that all but one of the individual bags of cocaine she tested had a purity level of at least 10 percent.

       See OCGA § 16-13-31 (a) (1) (“Any person... who is in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine ... in violation of [the Controlled Substances Act] commits the felony offense of trafficking in cocaine].]”).

       See OCGA § 16-13-30 (j) (1) (“It shall be unlawful for any person to... possess with intent to distribute marijuana”).

       See also Mitchell v. State, 268 Ga. 592, 593 (492 SE2d 204) (1997) (“A finding of constructive possession of contraband cannot rest upon mere spatial proximity to the contraband, especially where... the contraband is hidden.”) (citations omitted); Cobarrubias-Garcia v. State, 316 Ga. App. at 789-790 (To demonstrate that the defendant had the power and intent to exercise dominion or control over contraband, the State “must provide evidence of a connection linking the defendant to the contraband other than his mere spatial proximity.”) (citation and punctuation omitted); Hughes v. State, 215 Ga. App. 6, 9 (1) (449 SE2d 547) (1994) (“Afinding of joint or constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity. . . . Mere proof of the accused’s presence at the scene of the crime, without any evidence to show further participation in the commission of the crime, is insufficient to authorize a conviction.”) (citations and punctuation omitted).

       See Cobarrubias-Garcia v. State, 316 Ga. App. at 790 (“Aconnection can he made between a defendant and contraband found in his presence by evidence which shows that the contraband was discovered on premises occupied and controlled by the defendant with no right of equal access and control in others. Such occupation and control may be inferred when the accused is the owner or tenant of the premises upon which the illicit drugs are discovered.”) (punctuation and footnote omitted); Dickerson v. State, 312 Ga. App. 320, 321 (1) (718 SE2d 564) (2011) (“If the State presents evidence that a defendant owned or controlled premises where contraband was found, it gives rise to a rebuttable presumption that the defendant possessed the contraband. This presumption of constructive possession arising from ownership or control of the premises can be overcome by evidence that other persons had equal access to the contraband found there.”) (citations and punctuation omitted); Emerson v. State, 220 Ga. App. 485, 487 (2) (469 SE2d 520) (1996) (“A rebuttable presumption arises when one leases premises, and contraband is found therein, that the lessee is in possession of the entire premises and all the property found on the premises.”) (citation and punctuation omitted).

       Cf. Whitfield, v. State, 217 Ga. App. 402, 405 (3) (457 SE2d 682) (1995) (Evidence that the defendant lived in an apartment with the named lessee, the defendant was in the master bedroom at the time of the search, the defendant had $780 in cash in his pockets at that time, and the defendant previously sold cocaine at the same apartment to an undercover officer was sufficient to connect the defendant to cocaine and marijuana found in various locations in the apartment during the execution of a search warrant and thus authorized a finding of possession.); Pamplin v. State, 164 Ga. App. 610-611 (1) (298 SE2d 622) (1982) (Although the evidence showed that others had equal access to premises where drugs were found, evidence was sufficient to connect the defendant to the contraband and thus authorized a finding of possession where there was evidence that the defendant resided in the apartment and the drugs were found in a drawer in the apartment’s only bedroom under a loaded pistol that belonged to the defendant.).


author: Ray, Judge.

text:
    A15A1389.
    CESARI v. THE STATE.
    (780 SE2d 56)
   Ray, Judge.

Brandon Cesari and Daniel Boccia were tried jointly before a jury for crimes resulting from an altercation that occurred behind a fraternity house on the campus of the Georgia Institute of Technology (“Georgia Tech”). Cesari and Boccia both were indicted for armed robbery (OCGA § 16-8-41); two counts of aggravated assault with intent to rob (OCGA § 16-5-21 (b) (1)); carrying a weapon in a school safety zone (OCGA § 16-11-127.1); and battery (OCGA § 16-5-23.1 (b)). The jury convicted Cesari on all counts, and he appeals from the denial of his motion for new trial. Cesari contends that he was denied his right to be present during a critical stage of the proceedings, and argues that he received ineffective assistance of counsel. For the reasons that follow, we reverse and remand.

Viewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979), the evidence shows that following a University of Georgia - Georgia Tech football game, Georgia Tech student Blake Bauer was in a friend’s room at the Pi Kappa Phi fraternity house when he heard someone banging on the window. He went outdoors to investigate and saw two men who rushed at him and punched him in the face. He identified the men in court as Cesari and Boccia. He testified that Boccia punched him first, then Cesari punched him. The men punched him “at least ten times in the face.”

Bauer fell down onto a PVC pipe, which he picked up and tried to swing at the men, hitting Cesari. He swung the pipe only once before Cesari snatched it from him. As Boccia grabbed him by the collar and backed him toward some air conditioning units, he saw that Cesari was pointing a knife at him. Bauer testified that the knife had approximately a three-inch blade. Both men demanded Bauer’s wallet and money. Bauer denied having any money. Cesari then hit Bauer in the back of the head with the pipe. Bauer felt a searing pain and fell to the ground. Boccia began patting Bauer’s pockets, looking for a wallet, so Bauer took out his wallet and handed it to Boccia. The men opened the wallet, and upon finding that it contained no cash, threw it at Bauer and left the scene. Jurors saw surveillance video of the incident.

Another Georgia Tech student witnessed the incident from his window in a nearby fraternity house. At about 2:00 a.m., he saw two men breaking bottles, then saw them retrieve a knife from their car and walk toward the Pi Kappa Phi house, where they began throwing PVC pipes that were three to four feet in length. He testified that the street lights and fraternity house lights were on and that he could see the men’s faces. He identified Cesari and Boccia, whom he had seen earlier at a party in his own fraternity house, as the men he saw throwing the pipes. However, he could not recall which man had the knife. He saw Bauer walk out of the Pi Kappa Phi fraternity house. Although Bauer did not approach Cesari and Boccia aggressively, both Cesari and Boccia began punching Bauer, who fell to the ground. When the men backed Bauer into the corner by the air conditioning units, one of them hit Bauer in the head with a PVC pipe.

The witness called 911, and Georgia Tech police arrested Cesari and Boccia later that evening. Officers found a knife in Boccia’s pocket. The knife was admitted into evidence at trial and shown to the jury.

Boccia testified at trial; Cesari did not. Boccia testified that he and Cesari, who were both intoxicated, were behind the Pi Kappa Phi fraternity house “throwing some stuff around” when he looked into one of the fraternity house’s windows. He said Bauer came outside and confronted him with a PYC pipe, hitting him in the forehead. Cesari took the pipe from Bauer, and Cesari and Bauer began to fight. Boccia threatened Bauer and testified that he “remember[ed] having [Bauer’s] wallet in my hands,” though he denied asking Bauer for the wallet. More specifically, he testified at trial that Bauer ‘brandished his wallet out” saying “take my wallet,” then threw it to the ground. He further testified that he was too drunk to recall why he picked up the wallet, but said he looked through it. When shown the knife, he testified that his grandfather had given it to him and that he had given it to Cesari at some point in the evening to open a beer bottle. He said Cesari threw the knife to the ground and that he picked it up, not knowing it may have been used in the altercation.

1. Cesari does not challenge the sufficiency of the evidence. Rather, he argues that his constitutional rights were violated because he was denied the right to be present during a critical stage of the proceedings against him.

The record shows that on the second day of trial, at approximately 1:45 p.m., the trial court sent the jury out after the State rested its case, and it declared a ten-minute recess. When court reconvened at about 2:00 p.m., Cesari’s attorney told the trial court that his client had not returned and that she did not know where he was. Proceedings were paused briefly, and the court asked counsel if she knew where Cesari was and if he was waiving his presence, noting that Cesari had absented himself from the trial once already. When Cesari remained missing, both Boccia’s and Cesari’s trial counsel asked for a continuance until the following day so Cesari could be located; Boccia’s counsel then asked for a mistrial. Cesari’s counsel noted that her client might be outside smoking and that he had a drug problem, but she said she did not know if that was why he had disappeared.

The trial court denied Boccia’s motion for a mistrial and the defendants’ motions for continuance, and it agreed to issue a bench warrant for Cesari. Court reconvened about 3:40 p.m., just more than an hour-and-a-half after Cesari had absented himself. Boccia was called to testify, and his attorney completed direct examination. The State had begun cross-examination when Cesari’s attorney informed the court that “My client just walked in.” She continued, “I need to talk to him because I would like to see if he’s intoxicated.” The trial court refused to interrupt Boccia’s testimony for this reason, so Cesari’s attorney asked the court, “Can we ask the deputy to keep [Cesari] outside until after the examination?” The court replied, “Yes.”

Some time later, the State requested that Cesari be let in, citing Confrontation Clause concerns. The trial court reasoned that Cesari waived his right “by not being here. He doesn’t have the right to interrupt the middle of examination questioning.” However, it nevertheless immediately called a recess, at about 4:45 p.m., after which Cesari was brought in and seated next to his lawyer. The State’s cross-examination of Boccia continued.

The record does not indicate how much time elapsed between the moment that the trial court agreed that Cesari be kept outside the courtroom and the moment that the State’s counsel asked that he be let back in. The record only reflects that the testimony which transpired between those two requests occupies sixteen transcript pages, and it is clear that Cesari missed some or all of that testimony. At the hearing on the motion for new trial, Cesari testified that he was outside the courtroom in the hallway and was unable to hear the proceedings. There is no evidence whether his lawyer told him what had transpired in his absence.

Under due process of law, a defendant has the right to be present that attaches at every critical stage of a criminal trial where his presence is necessary to contribute to the fairness of the proceedings. See Huff v. State, 274 Ga. 110, 111 (2) (549 SE2d 370) (2001). Our Supreme Court has determined that a “critical stage” in a criminal proceeding is one in which the “defendant’s rights may be lost, defenses waived, privileges claimed or waived,” or the outcome of the case may be substantially affected. (Citation and punctuation omitted.) Id. at 111 (2). Thus, the defendant’s right to be present attaches to the various critical stages of a trial, including, as here, the presentation of testimony to the jury. Dawson v. State, 283 Ga. 315, 322 (5) (658 SE2d 755) (2008).

Cesari now argues that he was denied his right to be present under the Georgia and United States Constitutions.

[T]here is a critical difference between the right protected by the Georgia Constitution and the corresponding federal constitutional right____[D] enial of the federal constitutional right to be present is subject to harmless error review on appeal. By contrast, under our case law, a denial of the right to be present guaranteed by the Georgia Constitution is not. . . . [It] is presumed to be prejudicial. Thus, absent a valid waiver by defendant, a violation of the right to be present enshrined in the Georgia Constitution triggers reversal and remand for a new trial [.]

(Footnotes omitted.) Peterson v. State, 284 Ga. 275, 279 (663 SE2d 164) (2008). Under both Constitutions, a criminal defendant has the right to be present at all critical stages of his trial. See Illinois v. Allen, 397 U. S. 337, 338 (90 SCt 1057, 25 LE2d 353) (1970); Wilson v. State, 274 Ga. 637, 639 (3) (555 SE2d 725) (2001). A defendant may waive his right to be present through counsel, if the waiver is made by counsel in defendant’s presence or with his express permission, or if he subsequently acquiesces in counsel’s waiver. See Allen v. State, 199 Ga. App. 365, 367-368 (6) (405 SE2d 94) (1994). We will affirm a trial court’s finding of waiver if any evidence supports it. Id. at 368 (6).

Cesari does not contend, nor could he successfully do so under our well-settled law, that he was denied his right to be present during the time that he voluntarily absented himself from the courtroom. See Byrd v. Ricketts, 233 Ga. 779, 780 (213 SE2d 610) (1975). Rather, he argues that when he returned, he “regain[ed] the right to be present,” but that such right was denied him. We agree.

It is true that a trial court is “not required to make moment-by-moment inquiries” as to whether a defendant who voluntarily absented himself later wishes to present. See LaGon v. State, 334 Ga. App. 14, 23 (2) (778 SE2d 32) (2015) (finding that after a defendant refused to enter the courtroom, the trial court was not required to frequently check in with him to see if he had changed his mind and later wished to be present), citing Weaver v. State, 288 Ga. 540, 543 (3) (705 SE2d 627) (2011). However, Cesari returned and asked to be let in, and there is no evidence — despite his counsel’s stated fears that Cesari might be intoxicated — that he was in fact disruptive in any way that would necessitate his being barred from the courtroom. See, e.g., State v. Fletcher, 252 Ga. 498, 499-500 (314 SE2d 888) (1984). Nor is there any evidence that he either authorized or subsequently acquiesced in what could be viewed as his counsel’s attempt to waive his presence. See Allen v. State, supra at 367-368 (6). Further, given that disruptive defendants may, under certain circumstances, reclaim their right to be present, Fletcher, supra at 501, we cannot say that a nondisruptive defendant who voluntarily absents himself for a time may never regain his right to be present. See Fletcher, supra at 499-500 (“Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings”) (citation and punctuation omitted).

Decided November 17, 2015

Kenneth D. Kondritzer, for appellant.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.

Cesari, upon returning to court and seeking admission to his own trial, should have been allowed to enter. Because he was absent from a critical part of his trial and did not acquiesce in any waiver by counsel once he made known that he was attempting to return to court, the judgment must be reversed and the case remanded for a new trial. See Sammons v. State, 279 Ga. 386, 388 (2) (612 SE2d 785) (2005).

2. As a result of our decision in Division 1, we need not address Cesari’s remaining contentions of error.

Judgment reversed and case remanded.

Barnes, P. J., and McMillian, J., concur.

       The jury convicted Boccia of armed robbery, battery, and carrying a weapon in a school safety zone, but acquitted him on the two aggravated assault counts. He has filed an appeal raising enumerations which are unrelated to Cesari’s appeal and which this Court will review separately.

       We found no information in the record as to why Cesari voluntarily absented himself.

       We note that Illinois v. Allen, supra, did not set forth specific requirements for readmitting a disruptive defendant. See Weaver, supra at 543 (3). Illinois v. Allen, supra at 343-344 and 345-346 (III), does indicate that the defendant has the burden to let the court know when he is ready to return and to behave appropriately. The record in the instant case indicates that, at the very least, Cesari let the trial court know that he was ready to return, notwithstanding his counsel’s request that he he kept out. See generally State v. Gillam, 629 NW2d 440, 452 (II) (Minn. 2001) (where defendant who was excluded for disruptive behavior asked to be let back in, trial court did not err in continuing to exclude him because there was no evidence that defendant would not resume his disruptive behavior once he returned to court).

       The State cites to the following cases, hut they are distinguishable: Hunter v. State, 263 Ga. App. 747, 747-748 (1) (589 SE2d 306) (2003) (where defendant left court and apparently never attempted to return, absence was deemed voluntary and defendant waived right to be present), Estep v. State, 238 Ga. App. 170, 170-172 (1) (518 SE2d 176) (1999) (same), and Miller v. State, 122 Ga. App. 869, 869 (1) (179 SE2d 265) (1970) (same). Also see Stell v. State, 210 Ga. App. 662, 663 (4) (436 SE2d 806) (1993) (trial court did not err in denying motion for continuance where defendant failed to appear on second day of trial and never returned prior to trial’s completion, and where trial counsel did not know reason for absence).


author: ELLINGTON, Presiding Judge.

text:
    A15A1483.
    THE STATE v. HOLT.
    (780 SE2d 44)
   ELLINGTON, Presiding Judge.

The State of Georgia appeals the trial court’s order granting, in part, Jamie Sue Holt’s motion to suppress evidence derived following her detention in Cherokee County for suspicion of driving under the influence of alcohol. For the reasons set forth below, we conclude that the trial court erred in suppressing the evidence and reverse.

“[0]n appeal from a ruling on a motion to suppress, we defer to the trial court’s factual findings and credibility determinations, but review de novo the court’s application of the law to the undisputed facts.” (Footnote omitted.) State v. Mosley, 321 Ga. App. 236 (739 SE2d 106) (2013). See also Hughes v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015) (“When the facts material to a motion to suppress are disputed, it generally is for the trial judge to resolve those disputes and determine the material facts.”). Although we defer to the trial court’s findings of fact and its determination of credibility, “where controlling facts are not in dispute, such as those facts discernible from a videotape, our review is de novo.” (Citation, punctuation and footnote omitted.) Boyd v. State, 315 Ga. App. 256, 257 (1) (726 SE2d 746) (2012).

The evidence shows that on April 28, 2014, a Georgia State Patrol trooper was dispatched to investigate an incident in which a car sideswiped a vending machine at a Kroger gas station. After the trooper arrived at the scene at 4:44 p.m., a man told the trooper that Holt was “being a little belligerent, not acting normal, and ... might have had something to drink.” The trooper approached Holt, who was pumping gas, and asked her if she had been involved in the incident. The trooper determined that Holt was not the driver of the car that hit the vending machine. However, during their conversation the trooper smelled alcohol on Holt’s breath. The officer also noticed that Holt’s “speech was a little off” and that she had bloodshot eyes, and she admitted to having had one or two glasses of wine and to driving to the gas station. The trooper asked Holt to walk with him to his patrol car.

The trooper’s patrol car-mounted video showed the trooper and Holt, at 4:51 p.m., standing in front of the patrol car. Holt submitted to an aleo-sensor test, and, after several attempts, she gave a sufficient sample which tested positive for alcohol and gave a numerical result of “.124,” which the trooper had Holt read aloud. The trooper told Holt that she had consumed more than a glass of wine, and to “hang out right there” in front of the patrol car. He also said that he would check her again, and indicated that if the test results went down, “maybe we’ll get somebody to get you a ride.”

The video showed that from 4:54 p.m. to 5:06 p.m., the trooper turned his investigation to the other driver and the incident for which he had been dispatched. Holt was shown walking on and off the screen several times, alone and without restraints, and the trooper told her to remain in front of the patrol car. At 5:05 p.m., the trooper called on his radio for another trooper. Approximately 12 minutes after the initial alco-sensor test, the trooper returned to Holt to conduct a second test. The alco-sensor test was again positive, and the numerical results were the same. The trooper instructed Holt to “hang out right here” at the patrol car, and he told Holt that, “we’re going to do some more testing, but first, I gotta get this taken care of, okay[?]” During the conversation Holt asked the trooper, “What’s the legal limit?” and the trooper responded that it was 0.08.

The second alco-sensor test was completed at 5:07 p.m., and the trooper, while apparently on his cell phone, spoke with another trooper at 5:10 p.m. The trooper could be heard saying, “I’ve got two DUIs; I’ll give you one of them. One alcohol, one drugs.” The trooper then continued his investigation into the driver who crashed into the vending machine. The video showed that the trooper conducted a field sobriety test of the other driver, placed her under arrest, and then read the implied consent rights, all of which occurred from 5:11 p.m. through 5:28 p.m. according to the time stamp on the video. The trooper could then be heard discussing post-arrest issues with the other driver and, apparently, her mother, for several minutes. The trooper informed Holt at 5:38 p.m. that another trooper was on his way.

The second trooper arrived at 5:39 p.m., approximately 50 minutes after Holt was first seen on the video standing at the first trooper’s police car. Within three minutes of the second trooper’s arrival, the first trooper left with the other driver in his custody. Holt appeared on the second trooper’s video at 5:43 p.m. The second trooper completed Holt’s field sobriety test by 5:48 p.m., when he took Holt into custody, and he read her the implied consent notice at 5:53 p.m.

The first trooper testified at the motion-to-suppress hearing that he conducted a portion of a horizontal gaze nystagmus test, which is a field sobriety evaluation, and that he saw sustained nystagmus at maximum deviation in Holt’s eyes. The trial court found that the test was conducted off view of the video “at some point.” The first trooper also testified that he turned over Holt’s investigation to the second trooper because he wanted to “answer the call” for which he was initially dispatched. According to the first trooper, he believed that Holt had. been drinking alcohol before driving, but he did not determine whether Holt was less safe to drive. The second trooper testified that Holt’s performance on the field sobriety tests, which included the horizontal gaze nystagmus test, the walk-and-turn, and the one-leg stand, were consistent with someone who was under the influence of alcohol to the extent it was less safe to drive.

Following her arrest and subsequent accusation in the State Court of Cherokee County for the offenses of driving under the influence in violation of OCGA § 40-6-391 (a) (1) (less safe) and OCGA § 40-6-391 (a) (5) (per se), Holt moved to suppress from evidence the results of the state-administered breath test, the field sobriety tests, as well as any statements she made to the troopers. The trial court, after an evidentiary hearing, granted Holt’s motion in part. In its order, the trial court found that Holt was under arrest at 5:10 p.m., after the first trooper told the second trooper, “I’ve got two DUIs, I’ll give you one of them,” but that the first trooper lacked probable cause for an arrest at that time. Alternatively, the trial court found, if there was probable cause for Holt’s arrest at 5:10 p.m., because the implied consent warning was given 38 minutes after Holt’s arrest, the results of the tests following the warning must be suppressed. And, the trial court held, following Holt’s arrest at 5:10 p.m., the questioning and investigation conducted by the second trooper amounted to a custodial interrogation without a prior recitation of Holt’s Miranda rights, requiring the suppression of the results of the second trooper’s investigation. Lastly, the trial court found that the length of Holt’s detention was unreasonable. The trial court suppressed from evidence anything learned in the course of the investigation after 5:10 p.m., including the second trooper’s observations and field investigation, Holt’s agreement to implied consent testing, and the results of the ensuing tests. The State appeals from the trial court’s order.

1. We first address Holt’s motion to dismiss this appeal. She argues that the State failed to comply with OCGA § 5-7-1 (a) (5), which, if applicable, required the State to file its notice of appeal within two days of the trial court’s order and to certify to the trial court that the appeal was not taken for delay and that the evidence was a substantial proof of material fact in the proceeding. Holt contends that the appeal was subject to this requirement because the trial court’s order excludes “other evidence” for purposes of OCGA § 5-7-1 (a) (5). However, the State’s appeal was from an order which excluded the results of tests for alcohol and was properly filed under OCGA § 5-7-1 (a) (4), which provides:

An appeal may be taken by and on behalf of the State of Georgia... in criminal cases ... [f]rom an order, decision, or judgment suppressing or excluding evidence illegally seized or excluding the results of any test for alcohol or drugs in the case of motions made and ruled upon prior to the impaneling of a jury or the defendant being put in jeopardy, whichever occurs first[.]

(Emphasis supplied.) See State v. Smith, 329 Ga. App. 646, n. 5 (765 SE2d 787) (2014) (physical precedent only) (State appealed from order suppressing the results of two sobriety tests under OCGA § 5-7-1 (a) (4)); State v. Mosley, 321 Ga. App. at 238, n. 1 (appeal from grant of motion to suppress field-sobriety-test results and any subsequent testimonial evidence was authorized by OCGA § 5-7-1 (a) (4)). An appeal under OCGA § 5-7-1 (a) (4) is not subject to the additional requirements set forth in OCGA § 5-7-1 (a) (5) (A) and (B). Holt’s motion to dismiss the appeal is denied.

2. The State contends that the trial court erred in excluding evidence gathered after 5:10 p.m. on the basis that Holt was then under arrest and no probable cause for the arrest existed at that time. We agree.

(a) There are three general classes, or “tiers,” of police-citizen encounters: “(1) verbal communications involving no coercion or detention; (2) brief stops or seizures that require reasonable suspicion; and (3) arrests, which can only be supported by probable cause.” (Punctuation and footnote omitted.) Bacallao v. State, 307 Ga. App. 539, 540-541 (705 SE2d 307) (2011). The trial court found, and the parties do not dispute, that the police-citizen encounter between the first trooper and Holt began as a first-tier encounter which then escalated into a second-tier encounter by the time the trooper directed Holt to the front of his patrol car and she blew into the alco-sensor. Even absent probable cause, during a second-tier encounter, “an officer may stop and detain a person briefly when the officer has a particularized and objective basis for suspecting the person is involved in criminal activity.” (Citation and punctuation omitted.) State v. Hammond, 313 Ga. App. 882, 884 (723 SE2d 89) (2012). See Terry v. Ohio, 392 U. S. 1 (88 SCt 1868, 20 LE2d 889) (1968). Here, as the trial court noted, the first trooper had an objective basis for suspecting Holt of criminal conduct and detained her for purposes of a DUI investigation in that Holt had an odor of alcohol about her person, she admitted to drinking, her eyes were bloodshot, and she had been driving. See, e.g., Crosby v. State, 214 Ga. App. 753, 754-755 (449 SE2d 147) (1994) (Finding that the officer was not required to have articulable suspicion to approach appellant’s stopped vehicle and talk with him, and that “once appellant rolled down his window and revealed his bloodshot eyes and the strong odor of alcohol, [the officer] had reasonable grounds to conduct an investigative inquiry to determine whether appellant was engaged in criminal activity, e.g., driving under the influence.”).

At issue is the trial court’s determination that, notwithstanding that Holt was, at least in the beginning, lawfully detained for purposes of an investigatory detention, her detention was subsequently elevated to an arrest at 5:10 p.m., at which time the first trooper lacked the necessary probable cause to arrest Holt. The State does not contest the trial court’s finding that the first trooper lacked probable cause to arrest Holt; rather, the State maintains that Holt remained in an investigatory detention until she was placed under arrest by the second trooper.

Although Holt was not free to leave after the officer told her to stay, “not every detention is an arrest.” (Citation omitted.) Harper v. State, 243 Ga. App. 705, 706 (1) (534 SE2d 157) (2000). Rather,

[t]he test for determining whether a person has been placed under custodial arrest is whether the individual was formally arrested or restrained to a degree associated with a formal arrest, not whether the police had probable cause to arrest. The test is whether a reasonable person in the suspect’s position would have thought the detention would not be temporary. A trial court deciding whether to admit evidence must apply this objective test; it is the reasonable belief of an ordinary person under such circumstances, and not the subjective belief or intent of the officer, that determines whether an arrest has been effected.

(Citation and punctuation omitted.) Lewis v. State, 294 Ga. App. 607, 608-609 (1) (a) (669 SE2d 558) (2008). See Christy v. State, 315 Ga. App. 647, 652 (2) (727 SE2d 269) (2012) (accord); State v. Norris, 281 Ga. App. 193, 195 (635 SE2d 810) (2006) (“A third-tier arrest is ... a full-blown custodial arrest as opposed to a temporary second-tier investigative detention.”). The determination of whether a detention amounts to a custodial arrest “is a mixed question of fact and law, [and] we construe the evidence most favorably to uphold the trial court’s findings and accept those findings unless they are clearly erroneous, but we independently apply the legal principles to those facts.” (Citation omitted.) Parker v. State, 326 Ga. App. 175, 178 (2) (754 SE2d 409) (2014).

In this case, the first trooper never told Holt that she was under arrest. Holt was not handcuffed, nor placed in the first trooper’s patrol car. The trial court, however, discounted the fact that the first trooper did not handcuff Holt inasmuch as the trooper did not handcuff the other driver when he arrested her. The trial court noted that Holt “had blown over the legal limit twice” before the trooper told her to stay. And, the trial court found, when at 5:10 p.m. the first trooper told the second trooper, “I’ve got two DUIs; I’ll give you one of them,” the first trooper had “vocalized what a determination of the result of an investigation would be,” and that “an objective person from [Holt’s] vantage point” would have concluded that she was under arrest.

In its analysis, the trial court implicitly assumes that Holt was aware of actions and comments that were not specifically directed at her. For example, the trial court relies on comments that the first trooper makes to the second trooper, apparently on a cell phone, and events that involved the other driver and the first trooper. We take no issue with the trial court’s conclusion that Holt would have heard and seen these things, but what Holt heard and saw was consistent with what the first trooper said to Holt before he proceeded to focus exclusively on the investigation of the other driver. The first trooper told Holt after the second alco-sensor test to “hang out,” and that “we’re going to do some more testing, but first, I gotta get this taken care of, okay[?]” An objective person would have understood that (1) she was not free to leave, (2) and that there would be “more testing” in the future, but (3) that the trooper was going to address another matter first — in context, the investigation of the other driver.

The conversation between the first trooper and the second trooper was not, as the trial court found, a vocalization of “what a determination of the result of an investigation would be.” That one law enforcement officer told another, within the hearing of Holt, that “I’ve got two DUIs, I’ll give you one of them” is ambiguous and could easily mean, consistent with ongoing events, that the first trooper had two ongoing DUI investigations. No intent to arrest was communicated by the first trooper to Holt. See State v. Dixon, 267 Ga. App. 320, 321 (599 SE2d 284) (2004) (Where there was no evidence that officer communicated to appellant his intent to arrest before asking appellant to take an alco-sensor test, nor was he handcuffed or placed in the back of the patrol car, the trial court erred in finding appellant in custody at the time of the test and excluding his pre-arrest performance thereon.). In context, and given what the first trooper had previously told Holt, the portion of the conversation which Holt overheard would not have caused a reasonable person to conclude that her status had changed. See State v. Pierce, 266 Ga. App. 233, 235-236 (1) (596 SE2d 725) (2004) (An officer’s comment he was going to shut the appellant’s car door before “some other drunk” took the door off, in context with the other circumstances, was insufficient to cause a reasonable person to believe his detention would not be temporary.). If, as the trial court found, Holt knew that the second driver was not handcuffed when she was arrested, Holt would have also known that the second driver underwent a field sobriety test before the trooper told the other driver that she was under arrest. The first trooper did, in response to Holt’s specific inquiry, tell her that the “legal limit” was “.08.” However, the first trooper did not tell Holt that she had been driving while over the legal limit, rather, he told her that she had consumed more than one glass of wine, and he did not comment about the numerical readings on the alco-sensor test other than indicating that if they went down between the first and second tests, “maybe we’ll get somebody to get you a ride.”

After the officer turned to the investigation of the other driver, and she remained detained pending “more testing,” Holt was not physically restrained or placed in the patrol car, and she was not told that she was going to jail. Thus, “a reasonable person would conclude that his or her freedom of action was only temporarily curtailed and that a final determination of his or her status was merely delayed.” State v. Mosley, 321 Ga. App. at 238 (finding that appellant was not in custody at the time of his field sobriety test where, among other things, the deputy never placed appellant in handcuffs or in the back of the patrol car); Tune v. State, 286 Ga. App. 32, 35 (1) (648 SE2d 423) (2007) (where appellant knew that she was being investigated for DUI, and had been told that she was drunk, but was not placed in the back of a patrol car nor handcuffed, a reasonable person could conclude that her freedom of action was only temporarily curtailed); Harper v. State, 243 Ga. App. at 706 (1) (although suspect was detained pursuant to a traffic stop and was suspected for DUI, he was not in custody when he was allowed to walk around, and was not placed in the back of a police car or handcuffed). Thus, the trial court erred in concluding that Holt was under arrest at 5:10 p.m.

(b) The trial court additionally found that the length of Holt’s detention was unreasonable, and that the investigatory detention therefore ripened into an arrest. See Grandberry v. State, 289 Ga. App. 534, 539 (2) (658 SE2d 161) (2008) (Although the police were authorized to stop the appellant for purposes of an investigation, the length of his detention, under the circumstances, was too long to be justified as an investigatory stop, and constituted an arrest.). In order to comply with the Fourth Amendment, an investigative detention “cannot be prolonged beyond the time reasonably required to fulfill the purpose of the stop.” (Citation and punctuation omitted.) Langston v. State, 302 Ga. App. 541, 543 (691 SE2d 349) (2010). And “[t]he Fourth Amendment protects a person’s right to be secure against unreasonable searches and seizures. The touchstone of the Fourth Amendment is reasonableness. Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances.” (Citation and punctuation omitted.) Id.

In determining

whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.

(Citations and punctuation omitted.) Randolph v. State, 246 Ga. App. 141, 146 (3) (b) (538 SE2d 139) (2000). In assessing the length of the detention, “[n]o bright line or rigid time limitation is imposed, and the need to consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes is to be emphasized.” (Citation and punctuation omitted.) Mallarino v. State, 190 Ga. App. 398, 401 (2) (379 SE2d 210) (1989).

Here, Holt was detained almost an hour from the time she was directed to the front of the first trooper’s patrol car to the time the second trooper completed his investigation. The trial court specifically pointed to an unjustified 30-minute delay between 5:10 p.m., when the first trooper spoke with the second trooper, and the second trooper’s arrival at approximately 5:40 p.m., and found the length of Holt’s detention unreasonable. The evidence showed that the first trooper investigated Holt for having driven under the influence through the time he gave her the second alco-sensor test, but that his investigation was focused on the other driver thereafter. Thus, during the thirty-minute period identified by the trial court, the first trooper was not investigating Holt, and her investigation resumed only upon the arrival of the second trooper. However, neither the thirty-minute delay caused by the wait for a second law enforcement officer, nor the total detention period of almost one hour, would, at least absent other considerations, have caused Holt’s investigatory detention to ripen into a custodial arrest. See DiMauro v. State, 310 Ga. App. 526, 529 (1) (714 SE2d 105) (2011) (delay of 20 minutes caused by need to summon second officer did not transform investigatory detention into a custodial arrest); Thomas v. State, 294 Ga. App. 108, 110 (1) (668 SE2d 540) (2008) (Where evidence showed wait for assistance from other officer lasted between a “few minutes” and “probably 40 minutes,” the delay by itself did not convert investigation into custodial situation); Harper v. State, 243 Ga. App. at 706 (1) (delay of up to an hour before the DUI task force officer arrived did not cause investigatory detention to ripen into an arrest); Aldridge v. State, 237 Ga. App. 209, 213 (3) (515 SE2d 397) (1999) (a delay of 45 to 50 minutes, wherein deputies had to wait for another deputy to arrive with an alco-sensor, and then spent time looking for consent to search forms, did not exceed bounds of investigatory detention).

The first trooper testified at the motion-to-suppress hearing that he was “almost positive” that it would have been faster “overall” for him to have conducted the investigations of both drivers rather than having turned one of them over to the other trooper. And, Holt argues, the trial court’s grant of the motion to suppress should be affirmed because the first trooper had the experience and capability to handle both investigations. However, accepting that the first trooper could have conducted both investigations to completion, and that doing so would have been faster, at least for Holt, this does not render the length of Holt’s detention unreasonable. Any consideration of the totality of the circumstances must take into account that the first trooper was, without a second law enforcement officer present, faced with two suspects and two unrelated investigations. The officer elected to pursue the investigation of the other driver after Holt’s second alco-sensor test, but he did so knowing that another trooper would be conducting Holt’s investigation. The first trooper’s video shows that, after Holt’s second alco-sensor test, he was involved with the investigation, arrest, and post-arrest of the other driver through the arrival of the second trooper, who completed Holt’s investigation in an expeditious manner. Under the circumstances, it was reasonable for the first trooper to call in the second trooper to conduct Holt’s investigation while he pursued the unrelated investigation of the other driver, and the length of Holt’s detention was not so long as to be beyond the scope of a permissible investigatory detention. See, e.g., Aldridge v. State, 237 Ga. App. at 213 (3) (45 to 50 minute detention); Harper v. State, 243 Ga. App. at 706 (1) (detention of up to an hour).

The recent decision of the United States Supreme Court in Rodriguez v. United States,_U. S._(135 SCt 1609, 191 LE2d 492) (2015), relied on by Holt, is distinguishable. In contrast to Rodriguez, Holt was not detained for an additional period of time after the investigation into the initial reason for her detention had been concluded. Rather, the original purpose of the detention, to confirm or dispel whether Holt had unlawfully driven while under the influence of alcohol, remained unresolved until after the arrival of the second trooper.

For the foregoing reasons, the trial court erred in excluding evidence gathered after 5:10 p.m. on the basis that Holt was then under arrest without the necessary probable cause, and because the length of her detention was unreasonable. Rather, Holt was placed under arrest by the second trooper following completion of her field sobriety test.

3. (a) The State further contends that the trial court erred in finding that the evidence gathered after 5:10 p.m. must be excluded because the further questioning and investigation by the second trooper amounted to custodial investigation, which required a recitation of her Miranda rights prior to the investigation. We agree.

As a general rule, Miranda warnings are not required while an investigating officer conducts preliminary questioning or field sobriety tests; however, after a DUI suspect is arrested, Miranda warnings must precede further field sobriety tests in order for evidence of the results to be admissible.

(Citations omitted.) Polizzotto v. State, 248 Ga. App. 814, 816 (1) (547 SE2d 390) (2001). As Holt was not arrested until after the second trooper had completed the field sobriety tests, see Division 2, supra, the protections of Miranda were not implicated before that time.

(b) Lastly the State contends that the trial court erred in finding that, because the implied consent rights were read to Holt 38 minutes after her arrest at 5:10 p.m., without a valid reason for the delay, the results of any state-administered test must be excluded. See Hough v. State, 279 Ga. 711, 716 (2) (620 SE2d 380) (2005) (Finding that “a suspect who is not involved in a traffic accident resulting in serious injuries or fatalities must be under arrest before implied consent rights are read to [her],” and “where implied consent rights are not read at the time of arrest, or at a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant, the results of the state-administered test will not be admissible at trial[.]”) (citation and punctuation omitted). See OCGA § 40-5-55 (a). As Holt was not under arrest at 5:10 p.m., there was no requirement that the implied consent notice then be read. See Hough v. State, 279 Ga. at 716 (2) (a) (“[I]mplied consent is triggered at the point that the suspect is not free to leave and a reasonable person in his position would not believe that the detention is temporary, regardless of whether a ‘formal arrest’ has occurred.”). Accordingly, the trial court erred in suppressing the results of any state-administered test on the ground that Holt’s implied consent warnings were not read to her at the time of her arrest.

Decided November 17, 2015

Jessica K. Moss, Solicitor-General, Jeffrey G. Huong, Assistant Solicitor-General, for appellant.

Melvin S. Nash, for appellee.

Judgment reversed.

Dillard and McFadden, JJ., concur.

       Although the officer was under the impression that the man was a Kroger employee, the evidence showed, and the trial court found, that he was a customer.

       Although the audio portion of the video is less than clear as to this conversation, the trial court found in its order that this is what the trooper said, and the State does not dispute this finding.

       See Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

       OCGA § 5-7-1 (a) (5) provides that an appeal may be taken by the State in criminal cases:
      From an order, decision, or judgment excluding any other evidence to be used by the state at trial on any motion filed by the state or defendant at least 30 days prior to trial and ruled on prior to the impaneling of a jury or the defendant being put in jeopardy, whichever occurs first, if:
      (A) Notwithstanding the provisions of Code Section 5-6-38, the notice of appeal filed pursuant to this paragraph is filed within two days of such order, decision, or judgment; and

        (B) The prosecuting attorney certifies to the trial court that such appeal is not taken for purpose of delay and that the evidence is a substantial proof of a material fact in the proceeding.


author: Ellington, Presiding Judge.

text:
    A15A1576.
    MIKELL v. HORTENSTINE.
    (780 SE2d 53)
   Ellington, Presiding Judge.

Robert G. Mikell, in his capacity as commissioner of the Department of Driver Services (the “Department”), following our grant of his application for discretionary appeal, appeals from the trial court’s order reversing the Department’s decision to deny, as untimely, Jaysen Hortenstine’s request for an administrative license suspension hearing pursuant to OCGA § 40-5-67.1 (g). We agree with Mikell that the actions of Hortenstine’s attorney in failing to mail a timely request for a hearing were imputed to Hortenstine, and reverse.

While a hearing on an appeal to the superior court of a license suspension is de novo, OCGA § 40-5-66 (b), the superior court sits as an appellate court in conducting its review of the suspension. Thus, the decision of the [Department] must be affirmed [by the superior court] if there is any evidence to support it.

(Citation and punctuation omitted.) Davis v. Brown, 274 Ga. App. 48, 49 (1) (616 SE2d 826) (2005). And “when this Court reviews a superior court’s order in such a case, our duty is not to review whether the record supports the superior court’s decision but whether the record supports the final decision of the administrative agency.” (Citations and punctuation omitted.) Id. at 50 (1).

The record shows that on September 25, 2014, Hortenstine was arrested for driving under the influence and then served by the arresting officer with a notice of suspension of his driver’s license. Hortenstine hired an attorney who requested, by letter dated October 6, 2014, and postmarked on October 10, 2014, an administrative hearing regarding Hortenstine’s license suspension. The Department denied the hearing request as untimely.

Hortenstine filed a petition in the Superior Court of Cobb County for judicial review of the Department’s decision. Hortenstine acknowledged in his petition that OCGA § 40-5-67.1 (g) (1) allowed him ten business days from September 25,2014, to request an administrative hearing regarding the suspension of his driver’s license, and that the hearing request was not postmarked until the 11th business day. Hortenstine maintained that he was nevertheless entitled to an administrative hearing because his attorney mailed the request too late notwithstanding that Hortenstine had provided him with all necessary information and fees eight business days before the deadline. Following a hearing, the trial court issued an order setting forth the undisputed facts, which are consistent with the representations made by Hortenstine in his petition for review, and agreeing with Hortenstine that the delay in mailing the hearing request was not due to Hortenstine, but entirely the fault of Hortenstine’s counsel. The trial court held that Hortenstine was entitled to an administrative license suspension hearing.

At issue is whether, because the failure to timely mail the hearing request was due to the acts and omissions of his attorney, Hortenstine was entitled to an administrative license suspension hearing under OCGA § 40-5-67.1 (g). Under OCGA § 40-5-67.1 (g) (1), a person whose driver’s license is suspended “shall remit to the department a $150.00 filing fee together with a request, in writing, for a hearing within ten business days from the date of personal notice... or the right to said hearing shall be deemed waived.” However, OCGA § 40-5-67.1 (g) (3) further provides, “[i]fno hearing is requested within the ten business days specified above, and the failure to request such hearing is due in whole or in part to the reasonably avoidable fault of the person, the right to a hearing shall have been waived.” The “ten business days specified above,” for purposes of OCGA § 40-5-67.1 (g) (3), logically refers to the period set forth in OCGA § 40-5-67.1 (g) (1) for the request of an administrative hearing as that is the only ten-business-day period previously specified. Thus, Hortenstine’s right to an administrative license hearing was waived if the delay in submitting the request was “due in whole or in part to the reasonably avoidable fault” of Hortenstine. OCGA § 40-5-67.1 (g) (3).

The Department’s regulations also provide, in applicable part:

Unless otherwise specified by statute or elsewhere within the rules of the Department, appeals shall be timely if received or postmarked within ten (10) days of effective date of the suspension. No appeal shall be allowed if not requested in a timely manner except where events uncontrollable by the aggrieved person are shown by him or her to have prevented a timely request. In this regard, the decision of the Commissioner shall be final.

Ga. Comp. R. & Regs. r. 375-3-3-.04 (3).

In this case, Hortenstine was not personally at fault for his failure to make a timely request for an administrative hearing in the sense that it was his attorney who did not mail the request in time, and this was despite Hortenstine having provided his counsel with the necessary information and fees well in advance of the deadline. Nevertheless, it is well established that “[t]he principal shall be bound by all the acts of his agent within the scope of his authority [.]” OCGA § 10-6-51. In other words, “[t]he principal is bound by the authorized acts of his agent as effectively as if he had been present and personally committed that act.” (Citations omitted.) Ford Motor Co. v. Abercrombie, 207 Ga. 464, 475 (2) (62 SE2d 209) (1950). An attorney may bind his client in legal proceedings. See OCGA § 15-19-5 (“Attorneys have authority to bind their clients in any action or proceeding by any agreement in relation to the cause, made in writing, and by signing judgments, [and] entering appeals[.]”); Abney v. State, 47 Ga. App. 40, 41 (169 SE 539) (1933) (“Counsel representing a defendant may fail to present a brief of evidence in time and the motion will be dismissed.”). And, as the attorney is the client’s agent, “the principal must answer for all defaults of his agent which occur within the scope of the agency.’’Bituminous Cas. Corp. v. J. B. Forrest & Sons, Inc., 132 Ga. App. 714, 719-720 (2) (209 SE2d 6) (1974) (if there was an unexcusable delay by the insured’s attorney, then “the insured is chargeable with his attorney’s failure to act with promptness”). See also Link v. Wabash R. Co., 370 U. S. 626, 634-635 (II), n. 10 (82 SCt 1386, 8 LE2d 734) (1962) (dismissal of action because of counsel’s unexcused conduct is not unjust, just as, “if counsel files a petition for certiorari out of time, we attribute the delay to the petitioner and do not request an explanation from the petitioner before acting on the petition”).

As Hortenstine’s failure to timely mail the request for an administrative hearing was due to the unexcused acts and omissions of his counsel, the errors of his counsel are imputed to Hortenstine and did not relieve him from the consequences of the failure to submit the hearing request in a timely fashion. Compare Davis v. Brown, 274 Ga. App. at 51 (2) (the superior court properly set aside the suspension of the driver’s license where the evidence showed that an officer at the jail confiscated the driver’s copy of the suspension notice, which authorized the court to find that events out of the driver’s control prevented him from making a timely request and, therefore, the Department acted arbitrarily and capriciously in applying the ten-day notice requirement). See also Earp v. Harris, 191 Ga. App. 414, 416 (382 SE2d 156) (1989) (the trial court erred in finding that a driver’s family emergency, which required that he travel to another state to take care of his daughter following surgery, was a legal excuse for failing to timely request a hearing, where there was no evidence that the driver suffered from a disability that rendered him incapable of requesting an administrative hearing within ten days as afforded by the statute) (applying former OCGA § 40-5-55). The evidence supported the decision of the Department in denying, as untimely, Hortenstine’s request for an administrative license suspension, and the trial court erred in overturning that decision.

Decided November 17, 2015.

Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Joseph J. Drolet, Senior Assistant Attorney General, Amy M. Radley, Assistant Attorney General, for appellant.

Chastine Defense Firm, Kevin A. Chastine, for appellee.

Judgment reversed.

Dillard and McFadden, JJ., concur.

       Hortenstine has moved to dismiss this appeal as moot. He represents, albeit without affidavit or documentary support, that he has pleaded guilty to a reduced charge of reckless driving and that the underlying criminal case “was closed with a non-DUI resolution” such that, he argues, any suspension of his driver’s license must be terminated and deleted from his record pursuant to OCGA § 40-5-67.1 (g) (4). The Department does not concede the factual allegations and argues that the appeal is not moot under the record before this Court. The trial court’s order expressly provided that Hortenstine’s license not be suspended before an administrative license suspension hearing is held (or that he be issued a temporary permit until the hearing), and thus it does not appear that the suspension of Hortenstine’s driver’s license (which would otherwise be for a one-year period under OCGA § 40-5-67.1 (d)), would have expired during the pendency of this appeal. The motion to dismiss the appeal as moot is denied,

       OCGA § 40-5-66 provides for a de novo appeal to the superior court from any decision of the Department, excepting in the case of appeals taken under OCGA§§ 40-5-67.1 (h) and 40-5-64 (h). If Hortenstine’s driver’s license suspension had been sustained following a hearing under OCGA § 40-5-67.1 (g), then the appeal to the superior court would have been proper under OCGA § 40-5-67.1 (h). See Dozier v. Pierce, 279 Ga. App. 464, 466 (1) (631 SE2d 379) (2006). Compare Davis v. Brown, 274 Ga. App. at 49 (1) (The Department suspended the appellant’s driver’s license after he failed to request a hearing within the requisite ten-day period provided by OCGA § 40-5-67.1 (g), and appeal to superior court was pursuant to OCGA § 40-5-66.).

       The appellate record does not include a transcript of the hearing before the trial court, and it appears that a transcript was never filed with the lower court clerk. However, the trial court’s findings of fact are not in dispute, and consideration of the transcript is not essential to the resolution of the appeal as the alleged error is apparent from the face of the order. See Cameron v. Miles, 311 Ga. App. 753, 755 (1) (716 SE2d 831) (2011).