author: Ellington, Presiding Judge. PETERSON, Judge,

text:
    A15A2308.
    THE STATE v. DOWDELL.
    (783 SE2d 138)
   Ellington, Presiding Judge.

Pursuant to OCGA § 5-7-1 (a) (5), the State of Georgia, through the district attorney for the Atlanta Judicial Circuit, appeals from an order of the Superior Court of Fulton County denying the State’s motion to introduce “other acts” evidence in its prosecution against Marcus Dowdell on the charge of rape, OCGA § 16-6-1. The State contends the trial court abused its discretion by applying the wrong legal standards when excluding evidence proffered by the State of other acts of sexual assault committed by Dowdell. Finding no clear abuse of discretion, we affirm.

“Atrial court’s decision under OCGA §§ 24-4-403 and 24-4-404 (b) to exclude or admit other acts evidence will be overturned only where there is a clear abuse of discretion.” (Citations omitted.) State v. Brown, 333 Ga. App. 643, 654 (3) (777 SE2d 27) (2015). See also Reeves v. State, 294 Ga. 673, 676 (2) (755 SE2d 695) (2014) (“Eviden-tiary rulings are reviewed under an abuse of discretion standard [.]”) (citation omitted). “[W]hile the abuse-of-discretion standard presupposes a ‘range of possible conclusions’ that can be reached by a trial court with regard to a particular evidentiary issue, it does not permit a ‘clear error of judgment’ or the application of ‘the wrong legal standard.’ ” (Footnote omitted.) Williams v. State, 328 Ga. App. 876, 880 (1) (763 SE2d 261) (2014).

The record shows that the State indicted Dowdell for the forcible rape of a 28-year-old woman. The State filed a pretrial notice of intent to introduce at trial evidence of other acts pursuant to OCGA §§ 24-4-404 (b) and 24-4-413, and Dowdell filed a responsive brief seeking the exclusion of the same. Thereafter, the court held a hearing concerning the other acts evidence.

The State argued that the evidence in its case-in-chief would show that, on October 19, 2012, the victim and her female cousin encountered Dowdell at a bar. Dowdell offered the women a ride home. Dowdell, a male friend of his, and the women got in the car, and Dowdell drove them all to a house in southwest Atlanta. Dowdell contends that he stopped at the house to check on his grandfather. According to the State, Dowdell then allegedly pulled the victim from the car, took her to the back of the house, pointed a gun at her, and raped her. Thereafter, he returned the victim to the car and drove her and her friend home. After Dowdell drove away, the victim told her cousin that Dowdell had raped her. The victim called the police and went to the hospital. A rape kit revealed the presence of male DNA, but it matched the victim’s boyfriend’s DNA, not Dowdell’s. Dowdell denies raping or having consensual sex with the victim.

The State argued that the following two prior criminal acts were admissible to show Dowdell’s motive, intent, lustful disposition, and propensity to commit acts of sexual assault. First, in 2002, the State alleged that 18-year-old Dowdell had intercourse with a 13-year-old middle-school student on two separate occasions, once on school grounds and once in a park. A school employee overheard the victim talking about her experiences, and the school principal reported the matter to the police. Dowdell was indicted for child molestation, but he entered an Alford plea to the offense of sexual battery. Second, in 2003, Dowdell allegedly molested the 13-year-old sister of one of his friends by touching the girl’s vaginal area with his hand and later, during a sleep-over party, by touching her breasts and buttocks with a knife. The State indicted Dowdell for child molestation; however, he ultimately entered a guilty plea to misdemeanor simple battery.

After hearing arguments of counsel concerning the relevance and admissibility of the evidence under OCGA §§ 24-4-404 (b) and 24-4-413, the court stated that the other acts evidence “is relevant to show that [Dowdell] is a sexual deviant.” However, focusing on the application of OCGA § 24-4-403, the court stated from the bench:

But it all boils down to me making a determination whether the prejudice involved in allowing these extraneous acts into this trial will . . . far outweigh the probative value. ... I find that the prejudice substantially outweighs the probative value based on the facts [that have] been related to me and the facts of these other instances.

The court reiterated this holding in its final order, finding that the other acts — acts which occurred a decade earlier when Dowdell was a teen, which involved minors with whom he had a social relationship, and which did not involve acts of forcible sexual intercourse — were “minimally probative” on the issues of Dowdell’s motive and intent in the case-in-chief. The court concluded that the other acts were really only probative of a trait of Dowdell’s character, his “lustful disposition.” On the other hand, the court believed that the other acts “evidence would be extremely prejudicial to [Dowdell] . . . because jurors may be tempted to convict based on their belief of what the evidence says about the defendant’s character, rather than the evidence in the case being tried.” The court also concluded that, because Dowdell disputed that he was guilty of committing a sexual assault in either of the other acts proffered and because the State intended to present witness testimony concerning those other acts, that “the admission of that evidence would transform this case into a trial involving three separate instances, and would distract the jury from the issues in this case.” Thus, “[a]fter applying [R]ule 403 balancing,” the court exercised its discretion to exclude the other acts evidence.

1. In two related claims of error, the State argues that the trial court failed to apply the proper legal framework for analyzing whether the other acts evidence was relevant and admissible pursuant to OCGA §§ 24-4-404 (b) and 24-4-413. With respect to OCGA § 24-4-413, the State asserts that the court failed to recognize that the proffered other acts evidence “shall be admissible” because it was relevant to show that Dowdell was a sexual deviant with a lustful disposition and that he was predisposed to commit acts of sexual assault. The State also asserts that the other acts evidence was relevant to show Dow-dell’s motive and intent in the case-in-chief and, thus, was admissible under OCGA § 24-4-404 (b); however, it appears from the transcript of the hearing that the State abandoned this second argument.

It is true, as the State argues, that the trial court did not expressly evaluate in its order whether the other acts evidence was relevant to any specific matter at trial — a threshold inquiry — or that it satisfied the prerequisites for admission under either of these Code sections. But the court’s failure to do so, in these circumstances, was not error. That is because it is patent from the court’s order and from the hearing transcript that the court recognized that evidence which may be admitted under OCGA §§ 24-4-404 (b) and 24-4-413 nevertheless may be excluded pursuant to OCGA § 24-4-403. Therefore, the court focused its analysis on whether the other acts evidence {assuming that it was relevant) should be excluded pursuant to OCGA § 24-4-403 on the ground that its probative value was substantially outweighed by the danger of unfair prejudice.

It was not improper for the court to frame its analysis thus because, even if the court had expressly determined that the evidence met all the requirements for admission pursuant to either OCGA § 24-4-404 (b) or § 24-4-413, the court still had the discretion to exclude it pursuant to OCGA § 24-4-403. See State v. Jones, 297 Ga. 156, 163 (3) (773 SE2d 170) (2015) (Evidence of other acts is not necessarily admissible in every criminal prosecution even when it is relevant to prove intent and knowledge, because such evidence may be deemed inadmissible on the basis of those considerations set out in OCGA § 24-4-403.); State v. Brown, 333 Ga. App. at 653 (3) (“Even when a trial court determines that all three prongs of the test for admissibility under OCGA § 24-4-404 (b) are satisfied, the trial court may still exclude the evidence pursuant to OCGA § 24-4-403.”); United States v. Brimm, 608 Fed. Appx. 795, 798 (11th Cir. 2015) (“[E]vidence admitted under Rules 413 and 414 is still subject to Rule 403’s balancing test.”) (citations omitted). Consequently, we find no merit in these claims of error.

2. The State contends that the trial court’s application of OCGA § 24-4-403 to the facts of this case constituted an abuse of discretion because the court applied “the wrong legal standard.” The court’s order, however, demonstrates that the court applied the correct legal standard. The court found that “the probative value of the evidence which the state seeks to admit is substantially outweighed by the risk of unfair prejudice to the defendant.” This is an accurate paraphrase of the standard set forth in OCGA § 24-4-403. Nevertheless, the State argues that the trial court failed to grasp the following: (a) that excluding evidence under OCGA § 24-4-403 is an extraordinary remedy that must be used sparingly; (b) that OCGA § 24-4-403 provides that evidence “may be” — as opposed to “must be” — excluded if the danger of unfair prejudice substantially outweighs its probative value; and (c) that the court failed to take into account prosecutorial need for the evidence in this case. These arguments are without merit for the following reasons.

(a) As this Court has explained,

the plain meaning of OCGA § 24-4-403’s text makes clear that the trial court may only exclude relevant evidence when its probative value is “substantially outweighed” by one of the designated concerns. Indeed, the Eleventh Circuit has described Rule 403 as “an extraordinary remedy which the . . . court[s] should invoke sparingly, and the balance should be struck in favor of admissibility.” Obviously, the reason for such caution is that relevant evidence in a criminal trial is “inherently prejudicial,” and, as a result, Rule 403 “permits exclusion only when unfair prejudice substantially outweighs probative value.” The primary function of Rule 403, then, is to exclude evidence of “scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect.”

(Footnotes omitted.) Williams v. State, 328 Ga. App. at 879-880 (1).

The record does not support the State’s assertion that the court was unaware of the purpose of OCGA § 24-4-403 or applied it improperly. In fact, the record of the hearing demonstrates the opposite. The judge stated that he “would be happy to allow [the other acts evidence if he] thought it was appropriate... in this case[.]” However, the court believed that the State was attempting to compensate for a weak case by “piling on” bad character evidence of scant probative value in an effort to undermine the presumption of innocence. Moreover, the court was clearly concerned that the admission of the other acts would transform what should be a straightforward case into “a trial involving three separate incidents,” distracting the jury from the issues central to the crime charged. Given the record before us, we find that the State has failed to carry its burden of demonstrating that the court was unaware that excluding evidence under OCGA § 24-4-403 was an extraordinary remedy that should be applied sparingly or that it misapplied the law to the facts of this case.

(b) The State argues that the trial court erred by stating in its order that it “must” exclude other acts evidence if it finds that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. The State argues that, because OCGA § 24-4-403 provides that a court “may” exclude such evidence, the court failed to recognize that, even if the “prerequisites [of OCGA § 24-4-403] are present, then it is permissible, but not mandated, that the evidence may be excluded.”

When read in context, the trial court, by using the word “must” in its order, was simply recognizing that, although its discretion to exclude evidence under OCGA § 24-4-403 was narrowly circumscribed, its broad discretion to admit other acts evidence was not absolute. “[Rule 403 was] not designed to permit the court to ‘even out’ the weight of the evidence, to mitigate a crime, or to make a contest where there is little or none.” (Citation omitted.) United States v. Patrick, 513 Fed. Appx. 882, 887 (11th Cir. 2013). Thus, an abuse of discretion occurs when a trial court admits evidence the probative value of which is substantially outweighed by its unfair prejudice. See Lingo v. State, 329 Ga. App. 528, 532-533 (765 SE2d 696) (2014) (“[I]n this case, the unfairly prejudicial effect of the evidence of [the defendant’s] gang affiliation substantially outweighed its minimal probative value. Accordingly, the trial court abused its discretion in admitting the evidence of [the defendant’s] gang membership.”) (footnotes omitted) (physical precedent only).

The record shows that the trial court made a common sense assessment of the circumstances surrounding the use of the other acts evidence, including prosecutorial need, similarity between the other acts and the charged offense, temporal remoteness, the likelihood of jury confusion by “a trial involving three separate incidents [,]” and the unfair prejudice that would flow from the introduction of prior crimes involving allegations of child molestation. The State has not shown that the court applied the wrong legal standard, misunderstood the nature or scope of its discretion, or clearly abused that discretion in excluding the evidence in this case. Consequently, we find no error.

(c) The State also argues that, in conducting its analysis under OCGA § 24-4-403, the court failed to consider the “prosecutorial need” for the evidence. The record, however, does not support this contention.

There is no doubt that probative value is, in part, a function of the prosecution’s need for the evidence in making its case. See United States v. King, 713 F2d 627, 631 (11th Cir. 1983) (“[T]he more essential the evidence, the greater its probative value, and the less likely that a trial court should order the evidence excluded.”) (footnote omitted). But it is also true that the “probative value of the extrinsic offense correlates positively with its likeness to the offense charged. Likewise, the more time separating the charged and prior offense, the less probative value can be assigned the extrinsic evidence.” United States v. Cardenas, 896 F2d 1338, 1343-1344 (11th Cir. 1990).

The transcript of the hearing shows that the trial court was informed of the State’s desire to use the other acts evidence to show Dowdell’s lustful disposition and his motive and intent in a case that essentially turned on the credibility of the defendant and the victim. The court simply disagreed that the other acts evidence was especially probative of those matters, given the lack of similarity between those acts and the charged offense, the decade separating the other acts from the charged offense, and the defendant’s immaturity at the time the other acts were committed. On the other hand, the court believed that, under the circumstances, admitting extrinsic evidence of acts of alleged child molestation would lure the jury into finding Dowdell guilty based on proof that was not specific to the crime charged, thereby infecting the proceedings with unfair prejudice and undermining the presumption of innocence. Given that the record supports the court’s findings, we find no clear abuse of discretion.

3. The State contends that the trial court’s evidentiary analysis was influenced by “wholly inappropriate considerations,” specifically, whether the State had engaged in plea bargaining with Dowdell. The trial court inquired about plea negotiations during the hearing and expressed concern about the State’s 25-year offer, but it does not appear that the court’s inquiry was related to its analysis of the other acts evidence. Moreover, the court makes no reference to plea bargaining in its final order. The State’s assumption that the court’s discussions with counsel about the plea offer constituted evidence of an improper evidentiary analysis is highly speculative and, given the record before us, presents no basis for inferring an abuse of discretion.

Judgment affirmed.

McFadden, J., concurs. Peterson, J., concurs specially.

PETERSON, Judge,

concurring specially.

The abuse of discretion standard “recognizes the range of possible conclusions the trial judge may reach, and that there will often be occasions in which we will affirm the evidentiary ruling of a trial court even though we would have gone the other way had it been our call.” Williams v. State, 328 Ga. App. 876, 880 (1) (762 SE2d 261) (2014) (punctuation omitted). For me, this is one of those occasions.

I am less certain than the majority that the trial court applied the correct legal standard, but ultimately conclude that we must treat it as having done so. The trial court concluded that the risk of unfair prejudice substantially outweighed the probative value of the proffered other acts evidence. This is the correct standard appearing in OCGA § 24-4-403. The closer question is whether the risk of prejudice that the trial court identified is properly understood as “unfair,” as the statute requires. The prejudice on which the trial court focused was the risk that jurors “may be tempted to convict based on their belief of what that evidence says about the defendant’s character, rather than the evidence in the case being tried.” But the trial court did not make clear precisely what prejudicial inferences about the defendant’s character it thought the jury might draw from the other acts evidence. This lack of clarity is important, because we could interpret the court’s concern as focused on one of at least two different inferences, one of which — while prejudicial — is not properly understood as “unfair.”

First, we could interpret the trial court’s concern as focused on a jury drawing an inference from the other acts evidence that the defendant “committed this sexual assault because he has a propensity to do so.” Although this inference would be unfairly prejudicial in most cases, OCGA § 24-4-413 is an exception to that rule. “Because [OCGA § 24-4-413] identifies this propensity inference as proper, the chance that the jury will rely on that inference can no longer be labeled as ‘unfair’ for purposes of the [OCGA § 24-4-403] analysis.” United States v. Rogets, 587 F. 3d 816, 822 (7th Cir. 2009) (analyzing Federal Rules of Evidence 413 and 403); see also United States v. Seymour, 468 F. 3d 378, 386 (6th Cir. 2006) (analyzing Federal Rule of Evidence 413). And the possibility that this was the court’s concern is bolstered by a review of two of the three cases the court cited as support for its conclusion. Those cases did not involve Rule 413; instead, they discuss the prejudicial danger of propensity evidence under the general rule disallowing it. See Old Chief v. United States, 519 U.S. 172 (117 S. Ct. 644, 136 LE2d 574) (1997) (holding Rule 403 required exclusion of other acts evidence sought to be admitted under Rule in federal firearms case because “propensity would be an ‘improper basis’for conviction”); Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991) (reversing drug conviction after other acts were admitted, because “evidence of an independent offense or act committed by the accused is highly and inherently prejudicial, raising, as it does, an inference that an accused who acted in a certain manner on one occasion is likely to have acted in the same or in a similar manner on another occasion”). If this was the inference the court found prejudicial, it would have been error requiring reversal.

But the trial court could equally be interpreted as identifying as prejudicial the risk that jurors, “uncertain of guilt, may convict [the] defendant because they think [he] is a bad person generally deserving of punishment.” Rogers, 587 F. 3d at 823. This interpretation is bolstered by the third case the court cited in support of its conclusion. See United States v. Castillo, 140 F. 3d 874, 882 (10th Cir. 1998) (considering prejudice of other acts evidence in the context of Federal Rules of Evidence 414 and 403 and noting that when other acts “evidence is before the jury, the jury may be tempted to convict for the prior bad act, or what it says about the defendant’s character, rather than what it says about the likelihood that the defendant committed the charged crime”). This prejudice would be unfair even for evidence sought to be admitted under OCGA § 24-4-413.

We ordinarily presume that trial courts apply the correct legal standard unless the record clearly demonstrates otherwise. Here, the trial court’s ruling could be interpreted as applying the correct legal standard. This shifted the burden to the State to show that the court applied the wrong legal standard. Cf. Bank of Clearwater v. Kimbrel, 240 Ga. 570, 572 (242 SE2d 16) (1978) (cited in Branton v. Draper Corp., 185 Ga. App. 820, 825 (366 SE2d 206) (1988)). The State didnot carry that burden, and accordingly I must presume the court applied the correct standard in assessing the risk for unfair prejudice.

Understanding the case in that light, I still view it as a much closer call than does the majority. But the record contains some support for the trial court’s conclusion that the proffered other acts evidence would be of limited probative value, and so I cannot set that conclusion aside while applying an abuse of discretion standard. Affording such limited probative value to the other acts evidence, then, it follows that the record contains support for the trial court’s ultimate conclusion that the risk of unfair prejudice substantially outweighs the limited probative value of the other acts evidence. Accordingly, the trial court’s order must be affirmed.

I disagree particularly, however, with the majority’s treatment of statements made by the trial court during the hearing (and to which the State strongly objects in this appeal). After hearing the State’s argument concerning the admission of the other acts evidence, the court asked the State “[w]hat do you want? What are you all offering, 25 years?” The State responded affirmatively, that they were presently offering “the mandatory minimum at this point.” After further argument, the court offered this observation:

Well, when you are dealing with 25 years as the minimum sentence, I sort of take things seriously to try and get some feel for what the case is about and, you know, 25 years. You know, I could understand that for a serial rapist, some stranger lurking breaking in a house raping somebody. And I guess, you know, everybody says, well, rape is rape is rape, but, you know, to me 25 years in this situation. . . ,

At the close of the hearing, immediately prior to ruling from the bench, the trial court again observed “you are talking about 25 years minimum. ... 25 years which is, you know — and you serve most of that. And you know, this is not a serial rape case.”

The State argues that these considerations were the true motivation for the trial court’s exclusion of the other acts evidence, and, therefore, the court abused its discretion in excluding the evidence for an impermissible reason. The majority rejects that argument because “it does not appear that the court’s inquiry was related to its analysis of the other acts evidence,” and because “the court makes no reference to plea bargaining in its final order.” I do not so readily dismiss the court’s repeated objection to the State’s plea offer as unrelated to the motion the court was deciding. Indeed, one of the references quoted above came in the direct context of the trial court’s verbal ruling:

25 years which is, you know — and you serve most of that. And, you know, this is not a serial rapist case. These other underlying offenses you want me to let in, to me, the prejudice of having him wrongly convicted based on these acts substantially outweighs any probative value; and when you are talking about 25 years of a person’s life, that’s not, that’s not an avenue I want to take.

Decided February 23, 2016

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Rodney H. Atreopersaud, Assistant District Attorneys, for appellant.

Jennifer Lubinsky, for appellee.

But regardless of subjective motivation, the trial court’s order is objectively affirmable as explained above. The State has not cited, nor have I found, any legal authority for the proposition that the decision of a trial court, although affirmable as an objective matter, may nevertheless be reversed because the trial court may have had an impermissible subjective motivation. Accordingly, I agree that the State cannot prevail on this argument.

I concur in the judgment only.

       Because the State indicted Dowdell in 2014, Georgia’s new Evidence Code applies. See Ga. L. 2011, p. 99, §§ 2,101 (Georgia’s new Evidence Code, OCGA § 24-1-1 et seq., applies to any motion, hearing or trial commenced on or after January 1, 2013.).

       Although a plea pursuant to North Carolina v. Alford, 400 U. S. 25 (91 SCt 160, 27 LE2d 162) (1970), permits a criminal defendant to plead guilty while claiming to be innocent, it is, nevertheless, a guilty plea “and places the defendant in the same position as if there had been atrial and conviction by a jury.” (Citations omitted.) Argot v. State, 261 Ga. App. 569, 571 (2) (583 SE2d 246) (2003).

       OCGA § 24-4-404 (b) provides, in pertinent part:
      Evidence of other crimes, wrongs, or acts shall not he admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident... .

       OCGA § 24-4-413 (a) provides: “In a criminal proceeding in which the accused is accused of an offense of sexual assault, evidence of the accused’s commission of another offense of sexual assault shall be admissible and may be considered for its bearing on any matter to which it is relevant.” OCGA § 24-4-413 (c) also provides: “This Code section shall not be the exclusive means to admit or consider evidence described in this Code section.”

       During the hearing, the prosecutor stated: “[W]e are not seeking to admit this evidence under... 404 (b). Although the State’s position is that it is admissible under 404 (b). What we are seeking to do, your honor, is admit this evidence under 413[.]” The State has not articulated a clear hypothesis in its appellate brief showing how the other acts evidence has any tendency to prove or disprove the existence of any consequential fact independent of the propensity use forbidden by OCGA § 24-4-404 (b). Where an extrinsic offense is offered to prove intent, its relevance is determined by comparing the defendant’s state of mind in committing the extrinsic and charged acts, United States v. Zapata, 139 F3d 1355, 1358 (11th Cir. 1998), and the State has failed to make this showing.

       It is fundamental that “[e]vidence which is not relevant shall not be admissible.” OCGA § 24-4-402. Indeed, the first part of the three-part test to determine admissibility of evidence of other crimes and acts under Rule 404 (b) is that “the evidence must be relevant to an issue other than defendant’s character!.]” (Citation, punctuation and footnote omitted.) Bradshaw v. State, 296 Ga. 650, 656 (3) (769 SE2d 892) (2015). And, although OCGA § 24-4-413 is an exception to the rule that propensity character evidence is inadmissible, the Code section nevertheless expressly limits the admission of that evidence to “any matter to which it is relevant.”

       OCGA § 24-4-403 provides: “Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

       Indeed, the court may have framed its analysis as it did because the State took the position during the hearing that the other acts were presumptively admissible under OCGA § 24-4-413 and “that the only way they are not going to be admissible ... [is] if the court does a [R]ule 403 analysis and finds that the . . . prejudicial effect of the evidence substantially outweighs the probative value.”

       See Ga. L. 2011, p. 99, § 1 (stating the legislative intent to adopt the Federal Rules of Evidence as interpreted by the United States Supreme Court and Circuit Courts of Appeals, as of January 1, 2013, with any conflicts among the Circuit Courts of Appeals to be resolved by following the Eleventh Circuit Court).

       See footnote 7, supra.

       Of course, the State alleges that the defendant raped the victim at gunpoint.


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A15A2315.
    PACK v. THE STATE.
    (783 SE2d 146)
   PHIPPS, Presiding Judge.

A jury found Ronnie Dale Pack guilty of molesting his ten-year-old stepgranddaughter, N. F. Pack appeals, asserting that the trial court erred in holding a bench conference outside his presence, excluding admissible character evidence, and denying his motion for mistrial. He also argues that he received ineffective assistance of counsel at trial. Finding no basis for reversal, we affirm.

Viewed favorably to the verdict, the evidence shows that N. F. had a close relationship with Pack, often spending weekends at his home. On September 25, 2011, N. F. told her mother after a weekend visit with Pack that he had “stuck his finger” in her vagina. The mother asked whether Pack had touched the inside or outside, and N. F. responded: “The inside.”

N. F.’s parents reported the outcry to the police and had her medically examined. During the examination, N. F. told the nurse that Pack had entered her room at night, pulled down her pants, and “put his finger in her tootsie.” Although the examination did not reveal physical signs of abuse, the nurse testified that sexual abuse victims often have no visible injuries. N. F. repeated her outcry in a forensic interview, stating that Pack had “stuck his finger in her” and that it had hurt. She also testified at trial that Pack had walked into the bedroom where she was sleeping, pulled down her clothing, put his finger in her “no-no area,” and moved it around.

Pack testified at trial and denied the allegations. He also called several character witnesses, who testified that he had a reputation in the community as a truthful, moral, and upright person. The jury, however, found him guilty of child molestation and aggravated sexual battery.

1. Pack argues that he is entitled to a new trial because the trial court held a bench conference outside his presence during jury selection. The record shows that after bringing prospective jurors into the courtroom, the trial court stated: “Before we get started, ladies and gentlemen, I have a matter to attend to.” At that point, the court held a brief bench conference with the prosecutor, defense counsel, and a jury panel member who was on first offender probation for a felony committed several years earlier. The trial court confirmed the juror’s status as a first offender, then excused him for cause without further argument from counsel. Pack was in the courtroom, but was not present at the bench conference.

According to Pack, the trial court should have ensured that he participated in the bench conference. It is true that “[t]he Georgia Constitution guarantees criminal defendants the right to be present, and see and hear, all the proceedings which are had against him on the trial before the Court.” This includes “proceedings at which the jury composition is selected or changed,” as well as proceedings where potential jurors are stricken. The right to be present, however, “does not extend to situations where the defendant’s presence would be useless, or the benefit but a shadow.” A defendant, therefore, need not participate in a bench conference consisting of “essentially legal argument about which the defendant presumably has no knowledge.”

Although the bench conference here related to jury selection, it ultimately involved a purely legal question: whether a first offender felon is qualified to serve on a jury. The record contains no evidence that Pack had any knowledge about this technical issue or could have advanced the discussion. It also shows that the judge did not exercise any discretion in the matter. Once the juror confirmed that he was on first offender probation, the trial court excused him for cause because the court believed he could not legally serve on the jury.

The trial court was wrong in this regard. A person sentenced to a period of probation or confinement under the First Offender Act may serve as a juror. At the bench conference, however, the trial court resolved a purely legal question. Regardless of whether it did so correctly, Pack had no constitutional right to be present. Accordingly, this claim of error lacks merit.

2. Pack also argues that he is entitled to a new trial because the trial court erroneously excluded character testimony. We disagree.

Prior to trial, the state moved to exclude evidence that Pack was sexually appropriate and moral toward children. The trial court granted the motion as to his reputation for appropriate or moral sexual conduct. But it permitted testimony regarding his general reputation as a truthful, moral person. The record shows that Pack offered such character evidence at trial. Four witnesses testified that he had a reputation in the community for being truthful, moral, and upright. These witnesses further testified that Pack was loved by everyone in his church, got along with everybody, had a “heart of gold,” and was a “real good man.”

The character witnesses were not allowed to specifically state that Pack had a reputation for being sexually appropriate or moral with children. But they testified about his general morality, as well as his overall standing as a good man. Even assuming — without deciding — that more specific reputation evidence was admissible, the significant character evidence presented at trial by various members of Pack’s community sufficiently covered the subject. Any error in excluding the additional character evidence was harmless, and Pack is not entitled to a new trial on this ground.

3. Pack claims that the trial court erred in denying his motion for mistrial after one of the state’s witnesses bolstered N. F.’s credibility. A trial court exercises its sound discretion in ruling on such motion, and we will not disturb the court’s ruling “unless a mistrial [was] essential to preserve the defendant’s right to a fair trial.” No mistrial was necessary here.

At trial, the prosecutor asked the investigating detective whether anything in N. F.’s forensic interview “made [him] concerned about coaching.” The detective responded: “I didn’t see anything in there that showed me any kind of coaching because the victim’s interview to me was very genuine.” Defense counsel immediately objected and moved for a mistrial, arguing that the detective improperly bolstered N. F.’s credibility by asserting that her statements were genuine.

Although the trial court sustained Pack’s objection to the testimony, it denied his motion for mistrial. The court acknowledged that the officer had used a “poor choice of words.” But it concluded that “what [the officer’s response] was going to was the fact that the interview was genuine to the extent that he did not see any coaching going on.” The court then gave a general curative instruction:

Ladies and gentlemen, I would like to explain to you that.. . you are the sole judges of the witness’s — all of the witnesses’ credibility. That is their believability. It is your decision and your decision alone which witnesses to believe, and which witnesses not to believe, if there are some whom you do not believe. And... that’s the ultimate issue reserved for you, the jury. No other — no witness who was called to testify can ... or should be permitted to comment on the veracity or truthfulness of any other witness. And if — if such has happened — I’m not going to comment on whether such has happened or not. But if such has happened at any point in the trial, then you would be required to disregard that testimony in its entirety. And in — and in your deliberations and in arriving at your verdict. Again, no witness is ever permitted to comment on the veracity or truthfulness of any other witness in the case.

“A witness’s credibility is exclusively a matter for the jury, and in no circumstance may a witness’s credibility be bolstered by the opinion of another, even an expert, as to whether the witness is telling the truth.” Pack contends that the detective improperly commented on N. F.’s credibility. The trial court, however, found no bolstering. It concluded that the testimony, taken in context, related to whether the victim’s interview involved real or “genuine” — rather than coached — responses. The trial court did not abuse its discretion by interpreting the detective’s testimony in this way.

Despite its interpretation, the trial court recognized that the detective’s poor word choice might have led to some confusion. It thus gave a lengthy curative instruction. Pack complains that the trial court should have explicitly characterized the detective’s testimony as improper and advised jurors to disregard it. But the court reasonably concluded that the testimony was not, in fact, improper. And although it refused to identify any testimony as bolstering, the court fully apprised the jury of the bolstering prohibition in case jurors interpreted the detective’s testimony differently. Under these circumstances, we find no error in the curative instruction or the denial of Pack’s motion for mistrial.

4. Finally, Pack alleges that he received ineffective assistance of counsel at trial. To prevail on this claim, Pack must show that trial counsel’s performance was deficient and that, but for the deficiency, there is a reasonable probability that the outcome of the trial would have been different. This showing requires Pack to overcome the strong presumption that counsel’s performance fell within the wide range of reasonable professional conduct.

(a) As discussed in Division 1, the trial court wrongly dismissed a first offender probationer from the jury pool. Trial counsel did not object to the dismissal because, like the trial judge, he mistakenly believed the juror was ineligible to serve. Pack now argues that counsel’s failure to object constituted ineffective assistance of counsel.

Decided February 23, 2016

The Pate Law Firm, Page A. Pate, Jess B. Johnson, for appellant.

Penny A. Penn, District Attorney, Sandra A. Partridge, Assistant District Attorney, for appellee.

We find no merit in this claim. Pretermitting whether trial counsel performed deficiently, Pack has not shown any probability that an objection would have altered the trial result. He offered no evidence that this juror, who was number 86 in the panel, would have made it to the jury or changed the trial outcome if not stricken for cause. Furthermore, “the erroneous allowing of a challenge for cause affords no ground of complaint if a competent and unbiased jury is finally selected.” Pack has not pointed to any evidence that the jurors who ultimately decided his case were incompetent or biased.

On appeal, Pack argues that he would have been constitutionally entitled to participate in the bench conference had counsel objected to the juror’s dismissal. He contends, therefore, that his absence from the bench conference would require us to reverse his conviction, changing the ultimate outcome of the case. As we explained above, however, Pack did not have a constitutional right to attend the bench conference, which involved a purely legal question. An objection by defense counsel would not have altered the legal nature of the conference or necessitated Pack’s presence. Pack, therefore, has not demonstrated prejudice.

(b) Pack argues that trial counsel was ineffective to the extent he failed to preserve the errors discussed in Divisions 2 and 3. In resolving these claims of error, we did not find waiver or any failure to preserve the error. Accordingly, Pack has not shown that counsel was ineffective in this regard.

Judgment affirmed.

Doyle, C. J., and Boggs, J., concur.

       See Goggins v. State, 330 Ga. App. 350 (767 SE2d 753) (2014).

        Zamora v. State, 291 Ga. 512, 517-518 (7) (b) (731 SE2d 658) (2012) (citations and punctuation omitted). See also Ga. Const, of 1983, Art. I, Sec. I, Par. XII.

        Zamora, supra at 518 (7) (b) (citations and punctuation omitted).

        Brooks v. State, 271 Ga. 456 (2) (519 SE2d 907) (1999).

        Heywood v. State, 292 Ga. 771, 774 (3) (743 SE2d 12) (2013) (citation and punctuation omitted).

       Id. (citation and punctuation omitted).

       OCGA § 42-8-60 et seq.

        Humphreys v. State, 287 Ga. 63, 71 (4) (694 SE2d 316) (2010).

       See Parks v. State, 275 Ga. 320, 325 (3) (565 SE2d 447) (2002) (no error in excluding defendant from bench conferences that “discussed legal matters about which [defendant] would have known very little or nothing”). Compare Heywood, supra (defendant had right to be present when trial court and attorneys discussed whether new jurors should be empaneled following an allegedly prejudicial remark made by juror during voir dire); Gillespie v. State, 333 Ga. App. 565, 569 (1) (a) (774 SE2d 255) (2015) (defendant had right to be present at bench conference during which trial court “made the discretionary decision to excuse [a juror] from service for hardship reasons”) (emphasis in original) (physical precedent only).

       See Goggins, supra at 357 (3) (no reversible error in limiting defendant’s character evidence where additional testimony regarding defendant’s morality and trustworthiness would be cumulative); Cole v. State, 261 Ga. App. 809, 810 (1) (584 SE2d 37) (2003) (“Given the ample evidence of the victim’s reputation for violence, any error in excluding the cumulative testimony of one witness was harmless.”); Beck v. State, 250 Ga. App. 654, 659-660 (4) (551 SE2d 68) (2001) (error in excluding testimony harmless where, in light of other trial evidence, “there is a high probability that the exclusion of evidence, if any, did not contribute to the verdict”) (citation omitted).

        Gooden v. State, 316 Ga. App. 12, 15 (1) (728 SE2d 693) (2012) (punctuation and footnote omitted).

       Id. (punctuation and footnotes omitted).

       See Stillwell v. State, 294 Ga. App. 805, 807 (2) (a) (670 SE2d 452) (2008) (testimony that witness saw no evidence that child molestation victim had been “coached” does not impermis-sibly bolster child’s credibility); see also Brownlow v. State, 248 Ga. App. 366, 369 (2) (b) (544 SE2d 472) (2001) (taken in context, expert testimony did not comment on victim’s veracity or give opinion on ultimate issue).

       See Gooden, supra (trial court did not abuse discretion in denying motion for mistrial where curative instruction relating to bolstering given); Cook v. State, 276 Ga. App. 803, 806 (3) (625 SE2d 83) (2005) (same).

        Hall v. State, 292 Ga. App. 544, 551 (6) (664 SE2d 882) (2008).

       Id.

        Humphreys, supra (citations and punctuation omitted).


author: Dillard, Judge.

text:
    A15A2351.
    SEVILLA-CARCAMO v. THE STATE.
    (783 SE2d 150)
   Dillard, Judge.

Katia Sevilla-Carcamo appeals the trial court’s denial of her motion to suppress evidence. On appeal, Sevilla-Carcamo contends that the trial court erred when it concluded that (1) the officer had reasonable articulable suspicion to stop her vehicle based on her failure to use a turn signal; (2) in the alternative, the “good faith” exception, or a reasonable mistake of law, gave rise to a reasonable articulable suspicion justifying a stop of her vehicle; and (3) a third party validly consented to a search of the vehicle after she refused to consent. For the reasons set forth infra, we affirm.

At the outset, we note that the Supreme Court of Georgia has reiterated three fundamental principles to follow in reviewing a ruling upon a motion to suppress. First, the trial judge sits as the trier of fact at a hearing on a motion to suppress. And because the trial judge hears the evidence, the judge’s findings based upon conflicting evidence are “analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them].” Second, the trial judge’s decision with regard to questions of fact and credibility “must be accepted unless clearly erroneous.” Finally, we (as the reviewing court) must construe the evidence “most favorably to the upholding of the trial court’s findings and judgment.”

So viewed, the record reflects that on the day in question, an officer with the Gwinnett County Police Department received a tip from a Drug Enforcement Administration (“DEA”) agent that a white Acura SUV driven by Sevilla-Carcamo may contain illegal contraband. The officer then conveyed this information to a second Gwin-nett County officer, who then followed the vehicle for some time, looking for justification to initiate a traffic stop.

As the officer followed behind, Sevilla-Carcamo came to an on-ramp for 1-85 South and proceeded onto the interstate by merging across a dashed lane line into southbound traffic without utilizing a turn signal. According to the officer, southbound traffic was very heavy at the time, and the lane beside the merge lane contained many vehicles when Sevilla-Carcamo merged without the use of a signal. Additionally, at some point prior to the imminent traffic stop, Sevilla-Carcamo’s vehicle traveled, in total, two lanes to the left of the merge lane. Thus, due to Sevilla-Carcamo’s failure to utilize a turn signal while changing lanes, the officer initiated a traffic stop, at which point the officer who initially received the DEA tip also arrived on scene.

When the initiating officer approached Sevilla-Carcamo, he requested her driver’s license, but she informed him that she did not have one. Sevilla-Carcamo also told the officer that she was en route to pick up a friend’s child from a local elementary school, but the officer observed that the school was located eight to ten miles north of the direction she was traveling (which was southbound). At that point, the officer placed Sevilla-Carcamo under arrest for driving without a valid driver’s license.

After her arrest, the officers asked Sevilla-Carcamo for consent to search the vehicle, which she declined to give. Then, in accordance with department policy, the officers allowed Sevilla-Carcamo to contact someone to recover the vehicle rather than have it impounded. Sevilla-Carcamo called her pastor and, 20 to 25 minutes later, he arrived on the scene.

Both prior to and concurrent with the pastor’s arrival, a K-9 unit conducted two open-air searches of Sevilla-Carcamo’s vehicle, but the dog did not alert to the presence of any contraband. Nevertheless, before the pastor could leave with the vehicle, the officers informed him that they suspected the presence of illegal contraband and that he “would be responsible for whatever was in the car if he took possession of the vehicle.” The pastor then asked to speak with Sevilla-Carcamo, who was sitting handcuffed in the back of a patrol car.

The conversation that ensued between the pastor and Sevilla-Carcamo was mostly in Spanish, which none of the officers could speak or understand; but at its conclusion, the pastor informed the officers that Sevilla-Carcamo gave him permission to take possession of the vehicle and that she told him that “there may be drugs in the vehicle.” The pastor then requested that the officers search the vehicle. But before doing so, one of the officers once again confirmed with Sevilla-Carcamo that she wished for the pastor to take possession of the vehicle, to which she responded in the affirmative.

Having received the pastor’s permission to search the vehicle, the officers then proceeded with the search and located in the center console a large white purse containing a kilogram of cocaine. Sevilla-Carcamo was thereafter indicted for trafficking cocaine. She filed a motion to suppress the evidence discovered in her vehicle by law enforcement, which the trial court denied. Sevilla-Carcamo then filed an application for interlocutory appeal, which we granted. This appeal follows.

As set forth supra, Sevilla-Carcamo contends that (1) the officer lacked reasonable articulable suspicion to stop her vehicle based on a failure to use a turn signal; (2) the trial court erred in concluding that the “good faith” exception, or a reasonable mistake of law, gave rise to a reasonable articulable suspicion justifying a stop of her vehicle even if the failure to use a turn signal did not; and (3) her pastor’s consent to search the vehicle was invalid when she had previously refused consent to search. We will address each of these enumerations of error in turn.

1. First, Sevilla-Carcamo argues that the officer lacked reasonable articulable suspicion to justify a stop of her vehicle based upon a failure to use a turn signal. Specifically, she contends that this is so because OCGA § 40-6-123 “contemplates instances in which a turn on a roadway can be made with reasonable safety without the use of a turn signal.” We disagree.

OCGA § 40-6-123 provides that no person shall, inter alia, “change lanes or move right or left upon a roadway unless and until such movement can be made with reasonable safety” and that “[n]o person shall so turn any vehicle without giving an appropriate and timely signal in the manner provided in this Code section.” This statutory provision further directs that “[a] signal of intention to ... change lanes when required shall be given continuously for a time sufficient to alert the driver of a vehicle proceeding from the rear in the same direction or a driver of a vehicle approaching from the opposite direction.”

Sevilla-Carcamo argues that it was not necessary for her to utilize a turn signal while merging onto 1-86 because drivers traveling southbound had “already been notified by a conspicuous merge sign with arrows indicating... that vehicles will be merging into their lane of travel, thus obviating the need for southbound merge lane drivers to signal” and because, at the relevant on-ramp, “merge lane drivers have no legal option but to share the same lane [in which] they are already traveling.” But we agree with the trial court that because, during a period of heavy traffic, Sevilla-Carcamo failed to use a turn signal when she crossed over a dashed lane line into the lane in which the on-ramp would have eventually fully merged, the officer indeed had probable cause to initiate a traffic stop for violating OCGA § 40-6-123.

2. Given our holding in Division 1 supra, we need not address Sevilla-Carcamo’s second enumeration of error, which is that the trial court erred in finding, in the alternative, that the officer had a good-faith basis to stop her vehicle notwithstanding any mistake of law. However, it is worth noting that this Court has previously held, in the context of a traffic stop for a suspected violation of OCGA § 40-6-123 (a), that “[i]f an officer in good faith believes that an unlawful act has been committed, his actions are not rendered improper by a later determination that the conduct observed was not a crime.”

3. Finally, Sevilla-Carcamo contends that her pastor’s consent to a search of the vehicle was invalid because she had previously refused to permit a search. Yet again, we disagree.

It is well established that a valid consent to search “eliminates the need for either probable cause or a search warrant.” And in United States v. Matlock, the Supreme Court of the United States explained that

when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.

Nevertheless, at least insofar as consent to search a residence is concerned, in Georgia v. Randolph, the Supreme Court of the United States somewhat limited its earlier holding in Matlock to specify that “a physically present co-occupant’s stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him.”

Importantly, in limiting a co-tenant’s ability to consent to the search of a residence, the Supreme Court of the United States focused on “societal expectations” and noted that because a

co-tenant wishing to open the door to a third party has no recognized authority in law or social practice to prevail over a present and objecting co-tenant, his disputed invitation, without more, gives a police officer no better claim to reasonableness in entering than the officer would have in the absence of any consent at all.

Thus, the cooperative occupant’s invitation “adds nothing to the government’s side to counter the force of an objecting individual’s claim to security against the government’s intrusion into his dwelling place.” And the home, of course, is “entitled to special protection as the center of the private lives of our people.” Indeed, as the Supreme Court of the United States so eloquently noted in Kyllo v. United States, at the “very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”

On the other hand, it is likewise well established that the expectation of privacy with respect to one’s automobile is “significantly less than that relating to one’s home or office.” Indeed, automobiles, unlike homes, are “subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements.” And the expectation of privacy as to automobiles is further diminished by “the obviously public nature of automobile travel.”

Here, Sevilla-Carcamo agreed to entrust her vehicle to her pastor for safekeeping, thus creating a bailment. And in doing so, she “assumed the risk that [the pastor] would allow someone else to look inside.” Thus, the pastor at that point possessed authority to consent to a search of the SUV because there is no evidence that Sevilla-Carcamo in any way limited her pastor’s use of the vehicle or ability to consent. And despite the fact that Sevilla-Carcamo had previously refused consent to a search of the vehicle, we decline her invitation to extend the Supreme Court of the United States’s narrow holding in Randolph given the well-established differential treatment of residences and automobiles under the Fourth Amendment.

Decided February 23, 2016

Cuadra & Patel, Norman H. Cuadra, Chirag B. Patel, for appellant.

Daniel J. Porter, District Attorney, J. Drew Unger, Assistant District Attorney, for appellee.

Accordingly, for all of the foregoing reasons, we affirm the trial court’s denial of Sevilla-Carcamo’s motion to suppress evidence.

Judgment affirmed.

Ellington, P. J., and Peterson, J., concur.

        See Miller v. State, 288 Ga. 286, 286 (1) (702 SE2d 888) (2010).

        Id.

        Id. As to this first principle, our Supreme Court has further instructed that, “[t]o properly follow [it], we must focus on the facts found by the trial court in its order.” Id. at 287 (1) (emphasis omitted).

        Miller, 288 Ga. at 286 (1).

        Id.

        See OCGA § 16-13-31 (a).

       OCGA § 40-6-123 (a).

         Id.

       OCGA § 40-6-123 (b).

        Cf. OCGA § 40-6-46 (a) (“[N]o-passing zones shall be clearly marked by a solid barrier line placed on the right-hand element of a combination stripe along the center or lane line or by a solid double yellow line.”); OCGA § 40-6-46 (b) ("Where signs or markings are in place to define a no-passing zone ..., no driver shall at any time drive on the left side of the roadway within such no-passing zone or on the left side of any pavement striping designed to mark such no-passing zone throughout its length.”).

        See Morgan v. State, 309 Ga. App. 740, 745-46 (710 SE2d 922) (2011) (holding that the trial court was “authorized to find that the evidence placed vehicles in close spatial and temporal proximity to the Hyundai when it made its turn such that the officer had probable cause to believe that the driver of the Hyundai had violated OCGA § 40-6-123 by turning without signaling”); Salinas-Valdez v. State, 276 Ga. App. 732, 732-33 (1) (624 SE2d 278) (2005) (holding that deputy had a “sufficiently specific basis to justify the initial stop” when driver changed lanes without signaling in “medium heavy to heavy” traffic); Johnson v. State, 249 Ga. App. 29, 30 (546 SE2d 922) (2001) (holding that stop of vehicle was authorized when officer observed driver abruptly change lanes without signaling three times when “three or four” other cars were on the roadway). Cf. State v. Goodman, 220 Ga. App. 169, 171 (2) (469 SE2d 327) (1996) (holding that driver’s legal u-turn at intersection from left-turn-only lane without signaling did not justify traffic stop for making improper left turn).

        Parker v. State, 307 Ga. App. 61, 62 (1) (704 SE2d 438) (2010) (punctuation omitted); see also Helen v. North Carolina, _ U. S. _, _(II) (135 SCt 530, 190 LE2d 475) (2014) (holding that “reasonable suspicion can rest on a mistaken understanding of the scope of a legal prohibition”).

        Hardin v. State, 277 Ga. 242, 244 (3) (587 SE2d 634) (2003) (punctuation omitted); accord Dean v. State, 250 Ga. 77, 80 (295 SE2d 306) (1982); see also United States v. Matlock, 415 U. S. 164, 165-66 (94 SCt 988, 39 LE2d 242) (1974) (noting that “the search of property, without warrant and without probable cause, hut with proper consent voluntarily given, is valid under the Fourth Amendment”).

       415 U. S. 164 (94 SCt 988, 39 LE2d 242) (1974).

        Id. at 171 (II).

       547 U. S. 103 (126 SCt 1515, 164 LE2d 208) (2005).

        Id. at 106.

        Id. at 114 (II) (D).

        Id. at 115 (II) (D).

        Id. (punctuation omitted); see also Wilson v. Layne, 526 U. S. 603, 610 (II) (119 SCt 1692, 143 LE2d 818) (1999) (“The Fourth Amendment embodies th[e] centuries-old principle of respect for the privacy of the home[.]”); Welsh v. Wisconsin, 466 U. S. 740, 748 (II) (104 SCt 2091, 80 LE2d 732) (1984) (“It is axiomatic that the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” (punctuation omitted)); Miller v. United States, 357 U. S. 301, 307 (78 SCt 1190, 2 LE2d 1332) (1958) (“The poorest man may in his cottage hid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement!” (punctuation omitted)).

       533 U. S. 27 (121 SCt 2038, 150 LE2d 94) (2001).

        Id. at 31 (II) (Scalia, J.) (citation and punctuation omitted).

        South Dakota v. Opperman, 428 U. S. 364, 367 (2) (96 SCt 3092, 49 LE2d 1000) (1976); see also State v. Scott, 159 Ga. App. 869, 871 (2) (285 SE2d 599) (1981) (“[A] person has less expectation of privacy with respect to one’s automobile than one’s home or office.”); Cuevas v. State, 151 Ga. App. 605, 608 (1) (A) (260 SE2d 737) (1979) (“Less stringent requirements govern search of motor vehicles because the expectation of privacy in one’s auto is significantly less than in one’s home.”).

        Opperman, 428 U. S. at 368 (2); accord California v. Carney, 471 U. S. 386, 392 (II) (105 SCt 2066, 85 LE2d 406) (1985); United States v. Albers, 136 F3d 670, 673 (9th Cir. 1998); see also Somesso v. State, 288 Ga. App. 291, 293-94 (2) (a) (653 SE2d 855) (2007) (“These reduced privacy expectations derive from the pervasive regulation of vehicles capable of traveling on public highways.”).

        Opperman, 428 U. S. at 368 (2); see Cardwell v. Lewis, 417 U. S. 583, 590 (II) (94 SCt 2464, 41 LE2d 325) (1974) (“One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view.”); Bain v. State, 258 Ga. App. 440, 443 (1) (b) (574 SE2d 590) (2002) (“Because of the ready mobility of an automobile and the fact that the expectation of privacy with respect to one’s automobile is significantly less than that with respect to one’s home or office, the United States Supreme Court has long recognized an exception to the warrant requirement for searching an automobile, if based upon probable cause.”); Stanford v. State, 251 Ga. App. 87, 89 (1) (553 SE2d 622) (2001) (“The ready mobility of an automobile and the fact that the expectation of privacy with respect to one’s automobile [is] significantly less than that relating to one’s home or office justify a warrantless search, if based upon probable cause.”); see also Carney, 471 U. S. at 392-94 (II) (holding that vehicle-exception to warrant requirement applied to mobile home); Albers, 136 F3d at 673 (holding that vehicle-exception to warrant requirement applied to houseboat).

        See Wilder v. State, 290 Ga. 13, 17 (3) & n.4 (717 SE2d 457) (2011) (noting that, “given the undisputed evidence that [defendant] left the briefcase with [a third party] for safekeeping and that [the third party] kept the briefcase at his request, it appeared] that a bailment was created,” hut declining to address the applicability of the third-party consent doctrine when the third party has assumed the role of bailee). See generally Wayne R. LaFave, 4 Search & Seizure § 8.6 (a) (5th ed.) (collecting cases and discussing consent to search by bailees).

        Frazier v. Cupp, 394 U. S. 731, 740 (III) (89 SCt 1420, 22 LE2d 684) (1969); see Pupo v. State, 187 Ga. App. 765, 767 (5) (371 SE2d 219) (1988) (“[The appellant’s] status as driver of the vehicle afforded him sufficient authority over it to enable him to consent to the search, particularly in the absence of any objection by [the passenger, to whom the vehicle was registered].”); see also Fears v. State, 152 Ga. App. 817, 819 (1) (264 SE2d 284) (1979) (“After committing a violent crime, appellant left his bag in a house belonging to another and over which he had no authority or proprietary interests, and no reasonable expectation of privacy generally; the owner knew of or suspected the crime ... and discovered the weapon. She had a right to have it removed from her house and had the right to permit the police to open the hag to get it out. Moreover, when he left his hag in his sister’s house, appellant did not give her any instructions as to what to do with it and cannot object to her permitting its contents to be removed. Appellant’s relinquishment of all control over the bag in the house of another was tantamount to an abandonment.” (citation omitted)); United States v. Basinski, 226 F3d 829, 834 (II) (A) (7th Cir. 2000) (Manion, J.) (“Thus, [when] a defendant allows a third party to exercise actual or apparent authority over the defendant’s property, he is considered to have assumed the risk that the third party might permit access to others, including government agents.”); Johnson v. State, 519 S2d 713, 714-15 (Ct. App. Fla. 1988) (holding that defendant who left suitcase with bailee without any effort to secure the privacy of his effects “reasonably assume[d] that the bailee would open the suitcase and/or authorize the police to do so”).

        See United States v. Eldridge, 302 F2d 463, 466 (1962) (holding that bailee of vehicle gave valid consent to search when he was “clothed with rightful possession and control and could do in respect to the automobile whatever was reasonable and not inconsistent with its entrustment to him,” and noting that “[n] o restriction was imposed on him except to return with the car by a certain hour” and that defendant “reserved no exclusive right of privacy in respect to the trunk [that contained stolen property] when he delivered the key”); Hamilton v. State of NC, 260 FSupp. 632, 635 (E.D. N.C. 1966) (applying the holding in United States v. Eldridge to determine that bailee gave valid consent to search of automobile); see also Basinski, 226 F3d at 834 (II) (A) (“The key to [third party] consent is actual or apparent authority over the area to be searched”). Cf. Seldon v. State, 824 A2d 999, 1012 (I) (Md. Ct. App. 2003) (holding that mechanic could not consent to a search of portions of vehicle over which he had authority to access for repairs after repairs had been completed); State v. Kurokawa-Lasciak, 278 P3d 38, 44 (Or. Ct. App. 2012) (holding that third party lacked authority to validly consent to search when defendant gave the third party explicit instructions that imposed strict limits on access to the vehicle, such that limitations “did not encompass consenting to a search”). We note that after receiving the pastor’s valid consent to search, the officers’ search of the purse located within the automobile and ultimately found to contain the illegal contraband was also reasonable. See Florida v. Jimeno, 500 U. S. 248, 251 (111 SCt 1801, 114 LE2d 297) (1991) (holding that suspect’s Fourth Amendment right was not violated when, after consenting to search of his car, officer opened folded, brown paper bag on floorboard and found kilogram of cocaine therein, and noting that suspect had not placed any explicit limitation on scope of search, making it objectively reasonable for officer to conclude that general consent included consent to search closed containers which might contain drugs).

        See generally 547 U. S. at 106-23 (I)-(III); id. at 127 (Breyer, J., concurring) (“Given the case-specific nature of the Court’s holding ... I join the Court’s holding and its opinion.”).

        See State v. Copeland, 399 SW3d 159, 166-67 (II) (B) (2) (Crim. Ct. App. Tex. 2013) (holding that driver gave valid consent to search vehicle despite passenger-owner’s refusal, and declining to extend the holding in Randolph when “it does not appear that the Supreme Court intended for Randolph to apply to vehicles because the social expectations for occupants of vehicles are unlike co-tenants in residences; people have a lessened expectation of privacy in vehicles as compared to residences; and Randolph was intended to narrowly apply only to the present, objecting co-tenant in a residence”); see also Welch v. State, 93 SW3d 50, 53-57 (III) (Crim. Ct. App. Tex. 2002) (holding that passenger gave valid consent to search vehicle when driver, in giving vehicle over to passenger, assumed the risk that passenger would consent to a search; and allowed passenger to have “mutual access and control over the vehicle for most purposes,” whether or not a complete bailment existed, by failing to give any express limitations).


text:
    A15A1665.
    JOHNSON v. THE STATE.
    (783 SE2d 156)
   Dillard, Judge.

Following a bench trial, Deron Johnson was convicted of possession of a firearm by a convicted felon, possession of cocaine, and possession of less than one ounce of marijuana. On appeal, Johnson contends that the evidence was insufficient to support his conviction for possession of cocaine, and the court erred in sentencing him as a recidivist under OCGA § 17-10-7 (c) when one of the three prior felony convictions used in aggravation of his sentence was for simple possession of cocaine. For the reasons set forth infra, we affirm Johnson’s convictions but vacate his sentence and remand to the trial court for resentencing in a manner consistent with this opinion.

Viewed in the light most favorable to the trial court’s judgment, the record reflects that on August 6, 2013, Johnson returned to his then-girlfriend’s home after a multi-day absence. Upon his arrival, the girlfriend and her aunt informed Johnson that the couple’s infant daughter was ill and needed immediate medical attention. But rather than allow his girlfriend to use the car to seek care for their child, Johnson insisted that she instead drive him to Albany.

While Johnson and his girlfriend argued, both she and her aunt observed that Johnson was in possession of a handgun that he often carried and kept under his pillow while sleeping. The women also observed Johnson go into a bathroom, retrieve a plastic bag of what appeared to be marijuana from under the sink, weigh the bag on a set of scales, and then take his belongings, including a small brown or black bag, outside. Then, when the girlfriend’s aunt offered to drive Johnson to Albany so that her niece could take the couple’s child to the hospital, Johnson became visibly angrier and said “that’s what makes me want to kill y’all bitches up in here.” At that point, the aunt called 911, and Johnson went outside and sat on the back steps to the home.

When law enforcement arrived, the girlfriend and her aunt helped officers retrieve the firearm from the small brown or black bag inside the trunk of Johnson’s vehicle, and the girlfriend then permitted the officers to search the home. A canine unit alerted to the presence of illegal contraband near the steps to the home’s back door, where Johnson had been sitting for some time prior to the police arriving. And behind a loose panel of siding near the stairway, officers located side-by-side plastic bags containing marijuana and cocaine. Johnson was later indicted for and convicted of the offenses enumerated supra. This appeal follows.

1. First, Johnson contends that the evidence was insufficient to sustain his conviction for possession of cocaine. Specifically, Johnson argues that the evidence as to this offense was entirely circumstantial and failed to exclude every hypothesis except for his guilt. We disagree.

To begin with, a person is in constructive possession of an object when he “knowingly has both the power and intention at a given time to exercise dominion over the object.” Nevertheless, a finding of constructive possession must be “based upon some connection between the defendant and the contraband other than spatial proximity.” Indeed, evidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is “insufficient to support a conviction.” Finally, when the State’s constructive-possession case is based entirely on circumstantial evidence, the law requires that “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.” But it is well established that the question of whether circumstances were sufficient in a given case to exclude every reasonable hypothesis except that of the defendant’s guilt is a question for the finder of fact — be that a jury or judge. And it is only when the evidence is insupportable as a matter of law that “the judgment of conviction may be disturbed, even [when] the evidence is entirely circumstantial.”

Here, as further discussed supra, the record reflects that both Johnson’s ex-girlfriend and her aunt saw him place a plastic bag containing what they believed to be marijuana onto a scale before taking the bag with him when he went out the back door of the home. Johnson then sat alone on the steps at the back of the home until police arrived, and plastic bags containing both marijuana and cocaine were found sitting side-by-side behind a panel beside the steps where Johnson had been sitting. In other words, the cocaine was located in a bag sitting directly next to the bag of marijuana that Johnson was seen handling shortly before exiting the home to sit on the stairway, near which both bags were hidden and discovered. In light of this evidence, which showed more than Johnson’s mere spatial proximity to the cocaine, the finder of fact was authorized to conclude that the circumstances excluded any reasonable hypothesis that Johnson did not possess both the marijuana and cocaine hidden side-by-side behind the same panel.

2. Next, Johnson argues that the trial court erred in sentencing him as a recidivist under OCGA § 17-10-7 (c) when one of the three prior felony convictions used in aggravation was for simple possession of cocaine.

The record reflects that at the end of the State’s case in chief, the prosecutor tendered into evidence a certified copy of a 1991 conviction for felony theft by taking of a motor vehicle to establish that Johnson was in possession of a firearm as a convicted felon. Then, during sentencing, the State tendered certified copies of a 1995 felony conviction for possession of a sawed-off shotgun and a 2003 felony conviction for possession of cocaine. The State had previously provided Johnson with notice of its intent to use all three prior convictions in aggravation of sentencing.

After finding Johnson guilty of possession of a firearm as a convicted felon, simple possession of cocaine, and possession of less than one ounce of marijuana, the trial court proceeded to sentence Johnson under OCGA § 17-10-7 (c), ordering him to serve five years as to the possession-of-a-firearm charge (count one); three years to serve on the possession-of-cocaine charge, concurrent with count one; and twelve months to serve on the possession-of-marijuana charge, also concurrent with count one. On appeal, Johnson argues that in doing so, the trial court erred.

OCGA § 17-10-7 (c) provides, in relevant part, that with only certain exceptions,

. . . any person who, after having been convicted under the laws of this state for three felonies..., commits a felony within this state shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.

On the other hand, OCGA § 17-10-7 (a) provides, in relevant part, that with only certain exceptions,

. . . any person who, after having been convicted of a felony offense in this state . . . , commits a felony punishable by confinement in a penal institution shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he or she stands convicted, provided that, unless otherwise provided by law, the trial judge may, in his or her discretion, probate or suspend the maximum sentence prescribed for the offense.

Both OCGA § 17-10-7 (a) and (c) are subject to an exception provided by OCGA § 17-10-7 (b.l), which specifies that “[s]ubsections (a) and (c) of this Code section shall not apply to a second or any subsequent conviction for any violation of subsection (a), paragraph (1) of subsection (i), or subsection (j) of Code Section 16-13-30.”

Johnson contends on appeal that the trial court erred in sentencing him under OCGA § 17-10-7 (c) when one of the three prior felonies admitted against him was for simple possession of cocaine in violation of OCGA § 16-13-30 (a).

As to his conviction for possession of a firearm by a convicted felon, the trial court properly sentenced Johnson under OCGA § 17-10-7 (c) when the State presented certified copies of three prior felony convictions, making his possession-of-a-firearm conviction a fourth felony. However, as to his conviction for possession of cocaine under OCGA § 16-13-30(a),followingtheexplicitandplaintermsofOCGA § 17-10-7 (b.l), Johnson could not be sentenced as a recidivist under OCGA § 17-10-7 (c) because one of the three prior felony convictions used in aggravation was also a conviction under OCGA § 16-13-30 (a). Nevertheless, nothing would have precluded the trial court from using one of the other two prior felony convictions to sentence Johnson under OCGA § 17-10-7 (a) for his conviction for possession of cocaine under OCGA § 16-13-30 (a). The trial court indicated on the record that it believed it was mandatory to sentence Johnson without the possibility of parole; however, the court also hedged by further providing: “To the extent the [c]ourt might have any discretion to probate any portion of the sentence, the [c]ourt chooses to exercise that discretion by not probating any portion of the sentence.” Nevertheless, because the court was operating under an incorrect assumption, and because the final disposition reflects only that Johnson was sentenced under OCGA § 17-10-7 (c), we must vacate the trial court’s sentence and remand for the court to resentence Johnson in a manner consistent with this opinion.

Decided February 24, 2016.

David J. Walker, for appellant.

Denise D. Fachini, District Attorney, Lauren T. Warbington, Assistant District Attorney, for appellee.

Judgment affirmed, sentence vacated, and case remanded with direction.

Ellington, P. J., and Rickman, J., concur.

        See OCGA § 16-11-131 (b).

        See OCGA § 16-13-30 (a).

        See OCGA § 16-13-30 (j) (1).

        See, e.g., Stephens v. State, 271 Ga. App. 509, 509 (610 SE2d 143) (2005).

       Johnson does not argue that the evidence was insufficient to support his other convictions, hut our review of the record shows that the evidence was, nevertheless, sufficient to support those convictions. See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

        Hodges v. State, 277 Ga. App. 174, 174 (626 SE2d 133) (2006) (punctuation omitted); accord Wofford v. State, 262 Ga. App. 291, 292 (585 SE2d 207) (2003).

        Hodges, 277 Ga. App. at 174 (punctuation omitted); accord Oliveres v. State, 292 Ga. App. 460, 462 (664 SE2d 836) (2008).

        Hodges, 277 Ga. App. at 174 (punctuation omitted); accord Oliveres, 292 Ga. App. at 462.

        Hodges, 277 Ga. App. at 174 (punctuation omitted); accord McKibbins v. State, 293 Ga. 843, 847 (1) (750 SE2d 314) (2013).

        See, e.g., Black v. State, 296 Ga. 658, 660 (1) (769 SE2d 898) (2015); Mays v. State, 306 Ga. App. 507, 511 (1) (a) (703 SE2d 21) (2010); Brown v. State, 267 Ga. App. 642, 645 (1) (600 SE2d 731) (2004).

        Mays, 306 Ga. App. at 511 (1) (a) (punctuation omitted); see also Brown, 267 Ga. App. at 645 (1) (“It is only when the evidence is insupportable as a matter of law that the jury’s verdict may be disturbed, even where the evidence is entirely circumstantial.” (punctuation omitted)).

        See Brown v. State, 314 Ga. App. 212, 213 (2) (723 SE2d 504) (2012) (“The [Sjtate presented evidence other than [the defendant’s] mere spatial proximity to the pipe containing cocaine to show that he had constructive possession over it. The pipe was dry, although it had been raining and the surrounding area was ‘soaked’; from this evidence the court as factfinder could infer that the pipe had been on the ground for a very short period of time.”); Reason v. State, 283 Ga. App. 608, 610 (1) (a) (642 SE2d 236) (2007) (holding that there was sufficient circumstantial evidence that defendant possessed cocaine when, “[although other people were present and had access to the yard, the surveilling officers testified that in the period immediately prior to the search, [the defendant] was the only person to retrieve items from the bucket where the cocaine was found, which [the defendant] did repeatedly as police watched”); see also Wright v. State, 302 Ga. App. 332, 334 (690 SE2d 654) (2010) (affirming conviction when defendant was found lying underneath a car, drugs were found in a wheel well within defendant’s reaching distance, no one had been under car between time defendant was arrested and when drugs were found, and bag of drugs did not appear dirty, weathered, or damp).

       OCGA § 17-10-7 (c).

       OCGA § 17-10-7 (b.l); see also OCGA § 16-13-30 (a) (criminalizing purchase or possession of controlled substances); OCGA § 16-13-30 (i) (1) (criminalizing as a felony the possession of a counterfeit substance); OCGA § 16-13-30 (j) (criminalizing, inter alia, felony possession of marijuana).

        See OCGA § 17-10-7 (c); see also State v. Slaughter, 289 Ga. 344, 344-47 (711 SE2d 651) (2011) (concluding that the holding in King v. State, 169 Ga. App. 444 (313 SE2d 144) (1984), which applies when a defendant has a single prior felony conviction that is used to prove possession of a firearm by a convicted felon and cannot then be used to subject the defendant to sentencing under OCGA § 17-10-7 (a), does not apply in context of “a defendant who has three prior convictions and, in a subsequent prosecution, is convicted for firearm possession by a convicted felon,” making such a defendant subject to sentencing under OCGA § 17-10-7 (c)).

       See OCGA § 17-10-7 (b.l) (“Subsections (a) and (c) of this Code section shall not apply to a second or any subsequent conviction for any violation of subsection (a), paragraph (1) of subsection (i), or subsection (j) of Code Section 16-13-30.”); von Thomas v. State, 293 Ga. 569, 569 (1) n.1 (748 SE2d 446) (2013) (“OCGA§ 17-10-7 has been amended several times, and subsection (c) no longer applies to a sentence imposed for simple possession of a controlled substance in violation of OCGA § 16-13-30 (a).”); see also OCGA § 16-13-30 (f) (“Upon a third or subsequent conviction for a violation of subsection (a) of this Code section with respect to a controlled substance in Schedule I or II or subsection (i) of this Code section, such person shall be punished by imprisonment for a term not to exceed twice the length of the sentence applicable to the particular crime.”); OCGA § 17-10-7 (e) (“This Code section is supplemental to other provisions relating to recidivous offenders.”).

        Compare OCGA § 17-10-7 (a) (“Except as otherwise provided in subsection (b) or (b.l) of this Code section, any person who, after having been convicted of a felony offense in this state... commits a felony punishable by confinement in a penal institution shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he or she stands convicted, provided that, unless otherwise provided by law, the trial judge may, in his or her discretion, probate or suspend the maximum sentence prescribed for the offense.”) with OCGA § 17-10-7 (b.l) (“Subsections (a) and (c) of this Code section shall not apply to a second or any subsequent conviction for any violation of subsection (a)... of Code Section 16-13-30”).

        See OCGA § 17-10-7 (c) (providing that a defendant must “serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served”).

        See Bradshaw v. State, 237 Ga. App. 627, 629 (2) (516 SE2d 333) (1999) (remanding for resentencing when trial court mistakenly believed it lacked discretion in original sentence); see also Banks v. State, 225 Ga. App. 754, 756 (4) (484 SE2d 786) (1997). Cf. Henderson v. State, 247 Ga. App. 31, 32 (2) (543 SE2d 95) (2000) (“When a trial court has sentenced a recidivist to the maximum penalty under the mistaken belief that it had no discretion to suspend or probate any part of the sentence, we have remanded for resentencing. Here, however, even if the trial court mistakenly believed it had no discretion at the sentencing phase, this was clearly not the case at the motion hearing, when the trial court stated that, although it had discretion in sentencing, it would not exercise it to probate or suspend any part of [appellant’s] sentence.” (footnote omitted)).