text:
    A12A0088.
    DAVIS v. THE STATE.
    (727 SE2d 238)
   McFadden, Judge.

Trion Davis appeals his convictions of armed robbery and giving a false name. He contends that his trial counsel was ineffective because he failed to challenge an improper showup by police. We find that the showup was not impermissibly suggestive and therefore that trial counsel was not ineffective for failing to challenge it. Consequently, we affirm Davis’s convictions.

On appeal of a trial court’s ruling on a claim of ineffective assistance of counsel, “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Handley v. State, 289 Ga. 786, 787 (2) (716 SE2d 176) (2011).

The two-prong test for determining the validity of a claim of ineffective assistance of counsel provided in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency.

(Citation and punctuation omitted.) Bruce v. State, 252 Ga. App. 494, 498 (2) (555 SE2d 819) (2001).

Although the Supreme Court in Strickland discussed the performance component prior to the prejudice component, it acknowledged that a court addressing the ineffective assistance issue is not required to approach the inquiry in that order or even to address both components if the defendant has made an insufficient showing on one.

(Citation omitted.) Mahoney v. State, 296 Ga. App. 570, 571 (2) (675 SE2d 285) (2009).

The victim testified that he was robbed on January 11, 2006, while he was working for his father at the Locust Grove Exxon. A man wearing a peach-colored jumpsuit and blue jacket entered the store. The man approached the counter where the victim was standing, pulled out what appeared to be a semiautomatic handgun, pointed the gun at the victim, and demanded money. The victim put money from the cash register and his cell phone in a bag for the robber. The robber also took a package of razor blades and a toothbrush. The robber left the store, and the victim called 911. The victim described to the 911 dispatcher the robber, the clothes he was wearing, and the fact that he was driving a black Volvo S40 north on Interstate 75.

Ten minutes later, the police drove the victim north on Interstate 75 and showed him a man sitting in the back of a police car. The officers asked the victim, “Is this the gentleman that you saw in your store?” The victim immediately identified the man as the robber. The man was wearing the same peach-colored jumpsuit, and the same black Volvo S40 was parked nearby. In court, the victim identified Davis as the robber.

The officer who stopped the Volvo testified that the driver identified himself as Michael Clark. The officer saw the razor blades and toothbrush in the car. He also found in the car the packaging for an air pistol that resembled a semiautomatic gun, although no pistol was ever found.

A jury found Davis guilty of armed robbery and giving a false name. Davis moved for a new trial, claiming that he received the ineffective assistance of counsel because of counsel’s failure to challenge the roadside identification. The trial court denied the motion, finding that:

Single person “show ups” of this kind are always questionable because the circumstances are usually suggestive. However, in this case, there is not a single fact, other than the inherently suggestive nature of the “show up” procedure, which indicates there was any substantial likelihood of misidentification. Moreover, the other circumstantial evidence of guilt was strong, and there was no showing that the in-court identification was affected by the roadside “show up.” [Davis] has not shown a reasonable probability that a motion to suppress would have been granted, or that the verdict would have been different even if a motion to suppress had been granted.

Davis filed this appeal.

Davis argues that trial counsel’s performance was deficient because he did not challenge the showup, which was impermissibly suggestive given that Davis was the only suspect present, he was handcuffed in the back of a police car, and several police officers were on the scene.

Although a one-on-one showup is inherently suggestive, identification testimony produced from the showup is not necessarily inadmissible. We must apply a two-part test to determine whether the showup was impermissibly suggestive, and, if the showup was impermissibly suggestive, we then consider the totality of the circumstances to determine whether a “very substantial likelihood” existed of irreparable misidentification. With regard to part one of the test, this [c]ourt has previously held that on-the-scene showup identifications, like the one in the present case, are often necessary “due to the practicabilities inherent in such situations.” Thus, as long as this type of showup was reasonably and fairly conducted at or near the time of the offense, it is not impermissibly suggestive and we need not reach the second part of the test.

(Citations omitted.) Wallace v. State, 295 Ga. App. 452, 454 (1) (671 SE2d 911) (2009). “The mere fact that [Davis was] in a police car when [he was] identified does not taint the identification[ ]. And here, there was no evidence that the victim[ ] knew that [Davis was] in handcuffs.” (Citations omitted.) Young v. State, 272 Ga. App. 304, 311 (4) (a) (612 SE2d 118) (2005). There was nothing unfair in the police asking the victim, “Is this the gentleman that you saw in your store?” Id. As the trial court found, Davis points to no other evidence that the showup was impermissibly suggestive. “[T]he showup identification testimony was admissible. Trial counsel, therefore, was not ineffective for not objecting to or moving to exclude the testimony.” (Citations omitted.) Wallace, 295 Ga. App. at 457 (4).

Decided April 12, 2012.

Amanda R. Flora, for appellant.

Tommy K. Floyd, District Attorney, Thomas R. McBerry, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A12A0236.
    SHELL v. THE STATE.
    (727 SE2d 243)
   McFadden, Judge.

After a bench trial, Jeremy Shell was convicted of trafficking in cocaine. See OCGA § 16-13-31. He argues on appeal that the trial court erred in denying his motion to suppress evidence of the cocaine, which was found when a law enforcement officer searched his car during a traffic stop. Because the evidence demonstrated that the officer was authorized to stop the car and to search containers found therein, we affirm.

On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on conflicting evidence should not be disturbed if there is any evidence to support them. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994). But “where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” (Citations omitted.) Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

So construed, the evidence showed that on January 28, 2010, a law enforcement officer observed a car being driven by Shell in the center lane of Interstate 20. The speed limit was 65 miles per hour, and Shell initially was traveling at about 60 miles per hour. When Shell approached the location where the officer’s marked patrol vehicle stood, he quickly reduced his speed to about 50 miles per hour. The officer described the lane in which Shell was driving as the “tractor-trailer passing lane,” because on that portion of the highway tractor-trailers were not allowed to use the left lane. The officer testified that when he saw Shell

there was a pack of cars behind him including a couple of tractor-trailers in the center lane and there were tractor-trailers and passenger cars also in the right lane and Mr. Shell’s vehicle was traveling below the speed limit.....As the vehicles approached, I expected him to move over and allow those faster moving tractor-trailers to pass because he was underneath the speed limit and he had ample opportunity to do so, but it didn’t happen.

The officer further testified that Shell’s car

was the lead car in the center lane. There were no vehicles in front of him and there were no obstructions in front of him to cause him to slow down to the speed he was traveling. The tractor-trailers were building up behind him and the longer that continued, the more traffic caught up to that pack and the pack [was] growing the longer that this [went] on.

When Shell reduced his speed, “[t]he tractor-trailers that were directly behind him began to brake. . . . [I]t caused the trucks to have to decelerate to keep from hitting each other and hitting Mr. Shell’s vehicle.” As Shell continued past the officer, he remained in the center lane although he had an opportunity to move into the right lane. The officer testified that he believed that Shell’s driving was impeding the flow of traffic on the highway and creating a traffic hazard; for that reason, he initiated a traffic stop.

After stopping the car, the officer approached Shell, asked to see his driver’s license, and asked him to step out of the car. The officer saw what “appeared to be small pieces of marijuana debris on the windowsill.” He also saw either two or three cellular telephones inside the car. He described Shell as “extremely nervous. He was breathing very rapidly, had a carotid pulse visible in his neck, and his hands were trembling.”

Shell did not have a driver’s license with him, and he was driving a rental car but did not have paperwork relating to the rental. The officer began writing a traffic citation and initiated steps to verify Shell’s licensed status and authority to be driving the rental car. Because Shell appeared so nervous, before the officer completed these tasks he asked Shell to step out of the car and sought permission to perform a pat-down search. During the pat-down search, the officer found in one of Shell’s pockets a “very large wad of cash [that] looked liked it was at least $1,000.”

The officer was “very suspicious” that Shell might be involved in illegal narcotics activity in light of the amount of cash in his pocket, the fact that he was driving a rental car without paperwork, his possession of two to three cellular telephones, and the presence of marijuana debris in the car. Accordingly, the officer sought consent to search the car, and Shell agreed.

During his search, the officer saw a plastic bag on the front passenger seat of the car that he initially thought was trash “because it appeared to have papers wadded up in it and it was tied off.” When he picked up the bag, however, it felt “a lot heavier than trash would normally be.” He squeezed the bag and felt “chunks” inside. Believing that the bag likely contained narcotics, the officer untied the top of the bag and saw inside what later was determined to be 269.34 grams of 62.9 percent pure cocaine.

1. Shell argues that the cocaine should have been suppressed because the officer had no articulable suspicion for stopping his car. But the officer’s testimony authorized a finding that he saw Shell commit the traffic violation of impeding the flow of traffic. See OCGA § 40-6-184 (a) (“No person shall drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation.”). “It is axiomatic that a police officer who observes a traffic violation is authorized to conduct a traffic stop of the vehicle in question.” (Citations omitted.) Young v. State, 310 Ga. App. 270, 272 (712 SE2d 652) (2011).

Shell contends that we should reverse based upon State v. Whelchel, 269 Ga. App. 314 (604 SE2d 200) (2004), in which we held that an officer was not authorized to initiate a traffic stop of a defendant for impeding the flow of traffic where the undisputed facts showed that other vehicles on the road were at a safe distance from the defendant’s vehicle and nothing prevented them from maneuvering into the right lane to pass the defendant. Id. at 315-316. Here, however, the officer testified that Shell’s driving caused the traffic behind him to back up and created a hazard. Shell argues that the officer’s testimony was not credible because it was internally inconsistent and because a video recording of the stop showed that, shortly before the stop, a tractor-trailer was able to pass Shell’s car on the right. But “[i]t was for the trial court, sitting as finder of fact, to gauge the credibility of the officer’s testimony that he observed [Shell] commit a traffic violation.” (Citation omitted.) Warren v. State, 314 Ga. App. 477, 482 (3) (724 SE2d 404) (2012). We find no abuse of discretion requiring us to reverse the trial court’s judgment. See Tate, 264 Ga. at 54 (1); Warren, supra at 482 (3).

2. Citing State v. Corley, 201 Ga. App. 320 (411 SE2d 324) (1991) (physical precedent only), Shell argues that the cocaine should have been suppressed because his consent to a search of the car did not extend to a search of the bag in which the cocaine was found. But we need not reach the issue of the scope of Shell’s consent.

Under the automobile exception to the warrant requirement imposed by the Fourth Amendment, a police officer may search a car without warrant if he has probable cause to believe the car contains contraband, even if there is no exigency preventing the officer from getting a search warrant.

(Citations and punctuation omitted.) State v. Sarden, 305 Ga. App. 587, 589 (699 SE2d 880) (2010). And “[wjhen there is probable cause to search for contraband in a car, it is reasonable for police officers ... to examine packages and containers without a showing of individualized probable cause for each one.” Wyoming v. Houghton, 526 U. S. 295, 302 (II) (119 SC 1297, 143 LE2d 408) (1999). Accord State v. Selph, 261 Ga. App. 541, 542 (583 SE2d 212) (2003).

Evidence was presented that particles of what appeared to be marijuana were in plain view in the car, that Shell displayed characteristics consistent in the officer’s experience with involvement in illegal narcotics transactions, and that he displayed an extremely nervous demeanor. Construing this evidence most favorably to support the trial court’s judgment, “the facts and circumstances before [the officer] were sucb as would lead a reasonably prudent person to believe that contraband was present,” thereby providing the officer with probable cause to search the car. (Citation and punctuation omitted.) Barraco v. State, 244 Ga. App. 849, 852-853 (2) (b) (537 SE2d 114) (2000); see State v. Swift, 232 Ga. 535, 536 (2) (207 SE2d 459) (1974) (presence of marijuana in plain view on floorboard of vehicle provided probable cause for warrantless search of vehicle); Sarden, 305 Ga. App. at 589-590 (officer’s observation in vehicle of what he suspected to be cocaine would have led a reasonably prudent person to believe there was drug contraband in vehicle); Higdon v. State, 261 Ga. App. 729, 734 (a) (583 SE2d 556) (2003) (listing among other evidence that warranted a finding of probable cause evidence that defendant displayed specific behavior consistent with known characteristics of drug couriers and had nervous demeanor and trembling hands when approached by law enforcement officer). We find no error in the denial of the motion to suppress. See generally Boulware v. State, 189 Ga. App. 390, 391 (2) (376 SE2d 209) (1988) (affirming denial of motion to suppress because probable cause supported search of car, without addressing defendants’ arguments regarding validity of consent).

Decided April 12, 2012.

Michael L. Hubbard, for appellant.

David McDade, District Attorney, James A. Dooley, Emily K. Richardson, Assistant District Attorneys, for appellee.

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.


author: BARNES, Presiding Judge.

text:
    A12A0604.
    MANUEL v. THE STATE.
    (727 SE2d 246)
   BARNES, Presiding Judge.

The State presented evidence that Corey Manuel shot the victim in the head, and the jury thereafter convicted him of aggravated battery, aggravated assault, and possession of a firearm during the commission of a felony. On appeal from the judgment of conviction, Manuel contends that the trial court erred in admitting testimony that, at the time of his arrest, he had a handgun on his person. He further contends that his trial counsel rendered ineffective assistance. For the reasons discussed below, we affirm, but remand to the trial court for a determination of Manuel’s ineffectiveness claim.

“On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict.” Smith v. State, 279 Ga. App. 211 (630 SE2d 833) (2006). So viewed, the evidence showed that Manuel and Cedric Clayton were former friends who had a “falling out.” On July 2, 2008, Manuel, accompanied by several of his friends, confronted Cedric in the parking lot outside Cedric’s apartment. Cedric’s brother, Daniel Clayton, followed Cedric into the parking lot, “pulling [him] back, telling [him] to chill.” Neither Cedric nor Daniel was armed.

As Manuel and Cedric argued in the parking lot, Manuel pulled out a handgun from the right rear pocket of his pants. Manuel kept raising the gun toward the Claytons and lowering it during the argument. Ultimately, Manuel raised the gun and shot at Cedric twice, missing both times. He shot at Daniel three times, and one of the shots struck Daniel behind the left ear, causing permanent hearing damage and other problems. Daniel fell to the ground, and Manuel and his friends fled from the scene.

On July 21, 2008, the police fugitive squad arrested Manuel at his mother’s house. At the time of his arrest, Manuel was searched. The police seized a handgun from the right rear pocket of his pants. The gun was not the same handgun used in shooting Daniel.

1. Manuel contends that the trial court erred in admitting testimony that, at the time of his arrest by the police fugitive squad, he had a handgun in the right rear pocket of his pants. Manuel argues that the testimony that he had a handgun at the time of his arrest was wholly irrelevant and constituted improper character evidence because ballistics testing revealed that it was not the same handgun used in the shooting for which he was charged.

“As a general rule, the circumstances connected with a defendant’s arrest are admissible, even if such circumstances incidentally place the defendant’s character in issue.” Nichols v. State, 282 Ga. 401, 403 (2) (651 SE2d 15) (2007). Nevertheless, “such evidence is subject to the same standard of relevancy and materiality applicable to other evidence,” the admission or exclusion of which lies within the sound discretion of the trial court. Benford v. State, 272 Ga. 348, 350 (3) (528 SE2d 795) (2000). And the trial court abuses its discretion in admitting evidence of the circumstances surrounding the defendant’s arrest if “the evidence is wholly unrelated to the charged crime, the arrest is remote in time from the charged crime, and the evidence is not otherwise shown to be relevant.” Id.

Under the circumstances of this case, the trial court acted within its discretion in admitting evidence that Manuel had a handgun in the right rear pocket of his pants at the time of his arrest, even though the handgun was not the same gun used in the shooting of the victim. There was eyewitness testimony at trial that when Manuel shot the victim, he pulled a handgun from the right rear pocket of his pants. The fact that, at the time of his arrest for shooting the victim, Manuel was carrying a handgun in precisely the same location and manner on his person was relevant to the issue of his identification as the shooter in this case and thus was not “wholly unrelated” to the charged crimes. See Simmons v. State, 251 Ga. App. 682, 684 (1) (555 SE2d 59) (2001) (circumstances of arrest were admissible, where arrest was for the crime for which defendant was on trial, the defendant possessed a handgun at the time of arrest, and a handgun was used in the charged crime); Bogan v. State, 206 Ga. App. 696, 697 (1) (426 SE2d 392) (1992) (circumstances of arrest were admissible, where they corroborated the victim’s version of events and were “relevant as to the issue of identification”).

Furthermore, Manuel’s arrest for the charged crimes occurred less than three weeks from their commission. Thus, his arrest was not so remote in time from those crimes as to render the otherwise relevant evidence of the handgun automatically inadmissible. See Simmons, 251 Ga. App. at 684 (1) (arrest occurred five months after the charged crimes); Nealy v. State, 246 Ga. App. 752, 753 (1) (542 SE2d 521) (2000) (arrest occurred 26 days after the charged crime).

Decided April 12, 2012.

Ashleigh B. Merchant, for appellant.

Robert D. James, Jr., District Attorney, Leonora Grant, Assistant District Attorney, for appellee.

For these reasons, the trial court did not err in ruling that testimony about the handgun seized from Manuel at the time of his arrest was admissible. Manuel’s convictions, therefore, are affirmed.

2. Manuel also contends that he received ineffective assistance from his trial counsel. According to Manuel, his trial counsel was ineffective for failing to investigate and procure additional eyewitnesses and use their testimony to support a justification defense on his behalf.

Manuel retained new counsel after the time for filing a motion for new trial had passed and after a notice of appeal had been filed by his trial counsel. Consequently, the instant appeal is the earliest practicable moment for Manuel to raise his ineffectiveness claim. See Forsman v. State, 239 Ga. App. 612, 615 (8) (521 SE2d 410) (1999); King v. State, 238 Ga. App. 575, 577 (4) (519 SE2d 500) (1999). The case, therefore, is remanded to the trial court for a hearing and determination on Manuel’s claim that his trial counsel rendered ineffective assistance, with the right in Manuel to appeal that ruling. See Russell v. State, 267 Ga. 865, 868 (4) (485 SE2d 717) (1997); King, 238 Ga. App. at 577 (4). Compare Forsman, 239 Ga. App. at 615 (8) (remand unnecessary if the issue of ineffectiveness can be decided on the existing record).

Judgment affirmed and case remanded with direction.

Adams and McFadden, JJ., concur.


author: DOYLE, Presiding Judge.

text:
    A10A0982.
    THE STATE v. RAMIREZ-HERRARA.
    Decided April 13, 2012.

      Gwendolyn Keyes Fleming, District Attorney, Michael S. Carlson, Assistant District Attorney, Bondurant, Mixson & Elmore, John E. Floyd, for appellant.

      Ingrid J. McGaughey, Gerard B. Kleinrock, for appellee.
    (727 SE2d 253)
   DOYLE, Presiding Judge.

In State v. Ramirez-Herrara, we reversed the grant of a general demurrer to five counts of a twelve-count indictment. Thereafter, the Supreme Court of Georgia decided State v. Outen, in which that Court explained that the State must secure a certificate of immediate review in order to appeal an order granting a special demurrer. Based on its opinion in Outen, the Supreme Court granted the petition for a writ of certiorari in this case and remanded it back to this Court for further consideration.

Because the State was required to obtain a certificate of immediate review before proceeding, this Court lacked jurisdiction to review the trial court’s order granting the general demurrer. Accordingly, we vacate our prior judgment in this case and dismiss the appeal.

Appeal dismissed.

Ellington, C. J., and Andrews, J., concur.

       306 Ga. App. 878 (703 SE2d 429) (2010).

       289 Ga. 579 (714 SE2d 581) (2011).

       Id. at 581.

       See Ramirez-Herrara v. State, Case No. S11C0535 (September 6, 2011) (unpublished).

       See OCGA §§ 5-7-1 (a) (1), 5-7-2 (a); Outen, 289 Ga. at 582-583.


author: Doyle, Presiding Judge.

text:
    A12A0187.
    A12A0188.
    KLICKA v. THE STATE. DAVIS v. THE STATE.
    (727 SE2d 248)
   Doyle, Presiding Judge.

These appeals arise from the trial court’s revocation of Robert Klicka’s (a/k/a John Davis) probation for violation of the terms thereof. Klicka filed an application for discretionary appeal, which this Court granted to review the revocation order. Because the evidence failed to support the revocation to the extent ordered by the trial court, we vacate the order and remand the case for resentencing.

The record shows that on February 11, 2011, Klicka pleaded guilty to possession of methamphetamine and aggravated assault and was sentenced to concurrent sentences of ten years, with one year in confinement commuted to time served, and the remaining nine years probated in each case. The general terms of his probation required Klicka to, inter alia, report to his probation officer, pay probation fees, and refrain from violating criminal laws.

In March 2011, the State filed a petition to revoke Klicka’s probation based on allegations that Klicka failed to report to intake and that he was arrested on March 1, 2011, for committing aggravated assault, criminal trespass, property damage, failure to maintain lane, fleeing or attempting to elude an officer, following too closely, hit and run, obstruction, reckless driving, suspended license, and theft by receiving stolen property.

The trial court held a hearing at which the arresting officer testified about the events leading up to Klicka’s re-arrest. The officer testified that he encountered Klicka while responding to an “OnStar” report of a stolen vehicle with a description matching a vehicle driven by Klicka. The officer attempted to execute a traffic stop, and Klicka briefly eluded the officer, hitting the car in front of him as he navigated around traffic. Approximately two minutes later, the officer spotted Klicka on foot at the end of a dead-end street, where the officer was able to apprehend Klicka with the help of another officer. Klicka’s vehicle had no lock damage, and the keys were in it. After considering the evidence from the hearing, the trial court revoked Klicka’s probation based on Klicka’s “failure to report and pay” and his “new aggravated assault charges,” making no findings as to the other allegations in the revocation petition. The revocation order required Klicka to serve three years in confinement, with the balance of his probation suspended.

Klicka filed an application for discretionary review of the revocation, and this Court granted the application to review whether the evidence supported the trial court’s ruling. On appeal, Klicka argues that (1) the evidence failed to support the trial court’s finding that he committed the new offense of aggravated assault, and (2) the three-year revocation was not supported by Klicka’s failure to report and pay the fees under the terms of his probation. We agree.

A court may not revoke any part of any probated or suspended sentence unless the evidence produced at the revocation hearing establishes by a preponderance of the evidence the violation or violations alleged. OCGA§ 42-8-34.1 (b). This court will not interfere with a revocation unless there has been a manifest abuse of discretion on the part of the trial court.

1. At the outset, we note that the only new offense found by the trial court was an aggravated assault offense allegedly committed by Klicka.

Aggravated assault requires proof of certain aggravating circumstances and an assault. OCGA § 16-5-21. Assault requires showing either that the defendant attempted to injure someone, OCGA § 16-5-20 (a) (1), or that the victim was in reasonable apprehension of immediately receiving a violent injury. OCGA § 16-5-20 (a) (2).

(a) Apprehension of receiving an injury. The sole testimony at the revocation hearing was that of the officer who arrested Klicka based on the stolen vehicle report. That officer testified as to his pursuit and capture of Klicka, but there was no further testimony about or from an alleged victim of an aggravated assault. Even assuming that Klicka’s collision with another vehicle while evading the officer was the basis for the aggravated assault charge, there was no evidence as to the occupant’s apprehension of receiving an injury or as to his or her conduct showing the same. Thus, there was no evidence supporting an aggravated assault based on an alleged victim’s apprehension of injury.

(b) Attempt to injure. Likewise, with respect to an attempt to injure,

the intent to injure necessary to support a conviction[] . . . cannot be satisfied by a showing of criminal negligence on the part of the appellant. In other words, no matter the degree, a wanton or reckless state of mind cannot be considered the equivalent of the specific intent to injure necessary to sustain this type of aggravated assault.

Decided April 13, 2012.

Amanda M. Grantham, for appellant.

Paul L. Howard, Jr., District Attorney, David K. Getachew-Smith, Assistant District Attorney, for appellee.

The evidence here did show that Klicka hit another vehicle in his attempt to elude the officer, but absent some evidence in addition to the mere collision, the State failed to prove the intent necessary to show that Klicka collided with the vehicle in an attempt to injure someone for purposes of an aggravated assault offense. Therefore, even under the lower evidentiary burden at the revocation hearing, there was insufficient evidence that Klicka committed an aggravated assault offense in violation of the terms of his probation.

2. With respect to the trial court’s findings that Klicka failed to report and pay his probation fees, the probation officer did inform the court that Klicka had failed to report to the probation office. This supported the trial court’s finding that Klicka failed to report, and it authorized revocation of his probation on that basis. Nevertheless, OCGA § 42-8-34.1 (c) provides that “upon proof that the defendant has violated any general provision of probation or suspension other than by commission of a new felony offense,... the court may revoke the balance of probation or not more than two years in confinement, whichever is less.” Because the trial court’s revocation order required Klicka to serve three years, we vacate the order and remand for resentencing to a term of confinement no greater than that specified in OCGA § 42-8-34.1 (c).

Judgment vacated and case remanded for resentencing.

Andrews and Boggs, JJ., concur.

       The two cases arise from the revocation orders docketed in separate appeals based on Klicka’s alias. We have consolidated the cases for purposes of appeal, and herein the appellant is referred to as Klicka.

       (Punctuation omitted.) Scott v. State, 305 Ga. App. 596 (699 SE2d 894) (2010).

       (Emphasis supplied.) Montford v. State, 254 Ga. App. 524, 525 (1) (564 SE2d 216) (2002).

       See id. at 527-528 (1) (b).

       We find the rationale of Montford persuasive even under the lower burden of proof at a revocation hearing because there was an absence of any evidence as to the specific intent required to show aggravated assault.

       (Citation omitted.) Id. at 525 (1).

       See id. at 527 (1) (a) (“the fact that [the defendant] was speeding, eluding police, and not paying attention does not amount to intent to harm [the alleged assault victim]”).

       Compare Little v. State, 298 Ga. App. 298, 300 (1) (680 SE2d 154) (2009) (holding that evidence was sufficient to support aggravated assault conviction based on victim’s testimony “that he apprehended the potential to receive a violent injury from [the defendant’s] actions”).

       Klicka asserts on appeal that the probation officer did not offer sworn testimony, hut the hearing transcript shows that the trial court did question the probation officer about the case and the probation officer described his personal involvement and Klicka’s failure to report. Klicka failed to object to any testimony without a proper oath; therefore, this argument was waived. See Belcher v. State, 173 Ga. App. 509, 510 (1) (326 SE2d 857) (1985) (“appellant’s failure to object constituted a waiver of the requirements of an oath”).

       (Emphasis supplied.) See Jordan v. State, 279 Ga. App. 399, 402 (2) (635 SE2d 163) (2006).

       See id.


author: Boggs, Judge.

text:
    A12A0195.
    GIBSON v. THE STATE.
    (727 SE2d 251)
   Boggs, Judge.

Gary Gibson was convicted after a bench trial of deposit account fraud. OCGA § 16-9-20. The issue presented on appeal is whether his check, drawn on a closed account, was presented “in exchange for a present consideration” within the meaning of OCGA § 16-9-20 (a). We conclude that, under the circumstances of this case, a rational trier of fact could have found beyond a reasonable doubt that the check in question was presented in exchange for a present consideration, and we therefore affirm.

The victim, a construction rental company, rented two pieces of heavy equipment to Gibson for a construction project. The company delivered a crawler dozer to the job site on September 8, 2008, and picked it up on September 18. An excavator was delivered on September 19, and the company picked it up on September 22. The excavator was damaged during the rental period, and the company repaired it after ordering the necessary parts. The owner of the company testified that on October 7, he presented Gibson with the bill for the entire transaction, including the rental for both pieces of equipment and the repairs, which he testified were completed on that date. Upon presentation of the bill, Gibson gave the victim a check drawn on a closed account.

After hearing this testimony, the trial court specifically found that the check constituted present consideration and found Gibson guilty. Gibson appeals from the judgment of conviction and sentence, asserting in two enumerations of error that the evidence failed to show a present consideration.

OCGA § 16-9-20 (a) provides: “A person commits the offense of deposit account fraud when such person makes, draws, utters, executes, or delivers an instrument for the payment of money on any bank or other depository in exchange for a present consideration or wages, knowing that it will not be honored by the drawee.” Subsection (f) (6) of this Code section provides: “ ‘Present consideration’ shall include without limitation” five enumerated examples, including “[a]n obligation or debt of rent which is past due or presently due.” OCGA § 16-9-20 (f) (6) (A).

1. We first note that neither the Code section nor the decisions of our courts in any way limit the definition of “rent.” “When the GeneralAssembly enacted [OCGA§ 16-9-20] (f), it effectively removed the requirement of present consideration as to bad check offenses relating to payment of rent....” Cobb v. State, 246 Ga. 567, 568 (272 SE2d 299) (1980) (antecedent debt for automobile rentals). Evidence that the check was given in exchange for equipment rental was sufficient to enable a rational trier of fact to find Gibson guilty of the crime charged. Cooley v. State, 197 Ga. App. 340 (1) (398 SE2d 414) (1990) (payment of judgment for unspecified “past due rentals”).

2. Even if this were not the case, or if the repairs to the equipment were considered separately, “[t]he requisite of present consideration may exist although goods or services are received before a check is delivered in payment, where the interval is slight and the exchange can be characterized as a single contemporaneous transaction.” (Citation and punctuation omitted.) Holder v. State, 242 Ga. App, 479, 480-481 (3) (a) (529 SE2d 907) (2000). In Holder, the victim performed unspecified services for the defendant over a period of approximately one week and was paid the following Saturday. We held that the check in payment of this obligation was issued for present consideration, id., but that another check issued to pay the victim’s share of profits from an investment in Holder’s business was not. Id. at 481 (3) (b).

In Spencer v. State, 286 Ga. 483 (1) (689 SE2d 823) (2010), our Supreme Court relied upon Holder to find the evidence sufficient to show deposit account fraud when an electrical contractor installed wiring in Spencer’s home and then, after completion of the work, presented him with a bill for which Spencer wrote a bad check. We have also held that when the final amount due to the defendant has not been calculated, due to commissions or other credits, and no invoice has been presented, the transaction has not been completed. Porado v. State, 211 Ga. App. 728, 729-730 (2) (440 SE2d 690) (1994) (regular business practice of measuring gasoline consumed, calculating commission, and presenting invoice at end of week met requirement of contemporaneous transaction and present consideration).

Here, evidence was presented that the rental of multiple pieces of construction equipment constituted a single transaction, which was not completed until the victim picked up the equipment, calculated the amount due for necessary repairs, and presented Gibson with, an invoice for which he immediately wrote a check. This constituted sufficient evidence for the trial court to conclude that Gibson’s check was given for a present consideration within the meaning of OCGA § 16-9-20 (a).

Decided April 13, 2012.

Brace W. Luquire, for appellant.

Julia Fessenden Slater, District Attorney, Douglas L. Breault, Assistant District Attorney, for appellee.

The cases cited by Gibson in support of his position can be distinguished on their facts; the question of “present consideration” is almost always determined by the facts of each case. In Griffith v. State, 249 Ga. 19 (287 SE2d 187) (1982), the course of dealing between the parties showed that if the defendant was not at his business when gasoline was delivered, the victim’s driver would simply draw up an invoice and leave it at the business, with no arrangements made for payment. “An understanding that a check would be issued at an unfixed future date” did not create “a single contemporaneous transaction.” Id. at 20. In Marchman v. State, 173 Ga. App. 257 (325 SE2d 879) (1985) (physical precedent only), another gasoline delivery case, we held that the evidence was insufficient to support the conviction because the victim had “held” defendant’s checks in the past, could not testify as to the actual dates of delivery, and produced no invoices showing the dates of delivery of gasoline for which the checks were given. Id. at 259.

In Vadde v. State, 296 Ga. App. 405 (674 SE2d 323) (2009), the defendant deposited a bad check into his own bank account, and the bank investigator testified that the defendant received nothing of value in exchange for the check. Id. at 409 (2). And in McNeal v. State, 204 Ga. App. 791 (420 SE2d 653) (1992), the victim, a plumber, did not expect to be paid until after his work was inspected and approved. After he was not paid in a timely fashion, he “began to dun defendant until finally defendant wrote the checks at issue.” Id. at 793. We held that no contemporaneous transaction occurred because payment was contingent on a satisfactory inspection and did not occur until some time after the victim began demanding payment. Here, in contrast, Gibson wrote a check to the victim immediately upon presentation of the invoice for the completed rental and repairs. Sufficient evidence supported the verdict of the trial court.

Judgment affirmed.

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

       Before the 1994 amendment of the Code section, this offense was known as “issuance of a had check.” Ga. L. 1994, p. 1787. The elements of the offense have not changed with respect to the facts presented here.

       Before its amendment in 1994, this Code section provided:
      A person commits the offense of criminal issuance of a bad check when he makes, draws, utters, or delivers a check, draft, or order for the payment of money on any bank or other depository in exchange for a present consideration or wages, knowing that it will not be honored by the drawee.


author: Dillard, Judge.

text:
    A12A0580.
    HARRIS v. EASTMAN YOUTH DEVELOPMENT CENTER.
    (727 SE2d 254)
   Dillard, Judge.

Sara C. Harris appeals the denial of her request to designate her workers’ compensation injury as catastrophic pursuant to OCGA § 34-9-200.1 (g) (6) (A). She contends that the administrative law judge (“ALJ”) erred by (1) determining that her low-back pain was not compensable when that issue was not before the ALJ and (2) determining that her claim was not catastrophic in nature. Because we agree that the ALJ erred by making a determination as to the compensability of Harris’s low-back pain, we vacate the ALJ’s order and remand with direction.

The record reflects that in June 2002, Harris was employed as a cook at the Eastman Youth Development Center when she was kicked in the left knee by a resident. Although the injury initially kept her out for six weeks, Harris eventually returned to work on light duty. But approximately four to five months later, the pain in her knee worsened, and she developed low-back pain. The treating physician determined that Harris’s low-back pain was related to the alteration of her gait as a result of the knee injury. Thus, Harris stopped working in April 2003 and underwent two procedures to her knee, but the treating physician ultimately recommended a total knee replacement and hoped that the surgery would alleviate the pain in Harris’s knee and back.

Harris requested that the appellee cover the recommended total knee replacement. But in November 2006, the ALJ denied Harris’s request and suggested that the parties first enter into an agreement as to a weight-loss program for Harris, who is obese. Nevertheless, the ALJ also found that Harris’s low-back pain had developed as a result of her altered gait and authorized treatment of same.

Thereafter, Harris entered a weight-loss program, and the appellee eventually approved her request for a total knee replacement. But before the surgery was performed, Harris sought a catastrophic designation of her claim on the basis of her knee and low-back pain and also requested that the appellee continue paying for the weight-loss program. The ALJ denied the request for a catastrophic designation, citing the appellee’s approval of Harris’s knee surgery, but ordered that the appellee continue paying for the weight-loss program “to insure a positive outcome of this surgery.”

After undergoing the total knee replacement surgery in 2007, Harris continued to experience worsening low-back pain and sought treatment for same. In March 2010, Harris again sought a catastrophic designation of her claim and the continued payment for the weight-loss program. The ALJ denied both requests and, in doing so, also determined that any degeneration of Harris’s back as a result of the knee injury had been resolved by the knee surgery and that the appellee was no longer responsible for Harris’s low-back pain. The ALJ further determined that the continuing pain in Harris’s back was attributable to her “morbid obesity’ and that the back injury, thus, was not causally related to the knee injury.

Harris appealed the ALJ’s decision to the Appellate Division, which vacated the ALJ’s order and agreed with Harris’s argument that the compensability of her back should not have been addressed when it was not an issue before the ALJ — the only issue being whether Harris’s injuries warranted designation as catastrophic— and that Harris had not been given notice or an opportunity to be heard. Accordingly, the Appellate Division instructed the ALJ

in determining whether or not the Employee’s claim should be designated CAT, to make her findings and conclusions consistent with our findings and conclusions herein that the Employee’s back condition was not an issue properly before the administrative law judge at this time ....

Approximately four months later, without conducting a hearing or receiving any additional evidence, the ALJ issued a new order in which she again denied Harris’s request for a catastrophic designation. In doing so, she yet again determined that Harris’s “morbid obesity remains the primary cause of her back pain, not her left knee injurY’’; any worsening of Harris’s spine was more likely “attributable to degeneration and aggravation of her spine due to her excessive weight since [she] has not worked since 2002”; and the “back pain from which she currently suffers bears no causal connection to her left knee injury nor to any aggravation caused by limping on her left leg.”

Harris appealed this decision to the Appellate Division on the same grounds as before — namely, that the ALJ made a determination as to the compensability of her low-back pain when that issue was not properly before the ALJ. But this time, the Appellate Division adopted the ALJ’s award. Harris then appealed the decision in superior court, and the order of the Appellate Division was affirmed as a matter of law when the superior court did not issue an order. We granted Harris’s application for a discretionary appeal, which follows.

1. Harris first argues that the ALJ erred as a matter of law in determining that the low-back pain is unrelated to the work injury because Harris did not have notice or an opportunity to be heard on that issue. We agree.

As we have previously held, “in order for an issue to be determined at a hearing, a party must either have notice and an opportunity to be heard on the issue or have given express or implied consent for the issue to be heard.” And here, we find neither.

At the relevant hearing, the ALJ characterized the issue before her as concerning a request for catastrophic designation and continued payment for a weight-loss program. The ALJ also noted that the appellee contended that Harris was capable of performing light work and, thus, was not catastrophically injured. In this regard, Harris testified as to the history of her knee pain and low-back pain. She also detailed the physical restraints she was under and presented the testimony of a vocational expert who opined that Harris could not work due to her physical limitations and the type of employment available in the national economy.

In response, the appellee presented no testimony at the hearing, but both parties submitted medical records as to Harris’s knee and back treatments. And the appellee’s post-hearing brief contended that Harris’s claim for a catastrophic designation should be denied based upon her medical history and an independent medical evaluation. Specifically, the appellee argued that because Harris’s testimony as to worsening low-back pain was inconsistent with medical records, Harris’s testimony was suspect. Thus, it is clear from the record that the issue before the ALJ was whether Harris’s “injuries were sufficiently severe to merit catastrophic designation, not whether those injuries were compensable in the first place.” Indeed, neither Harris’s testimony nor anything else in the hearing transcript suggests that the parties or the ALJ believed compensability was an issue.

On appeal, the appellee focuses its argument on the evidence supporting the AL J’s denial of a catastrophic designation, “regardless of the overall compensability of Harris’s low back pain.” Indeed, the appellee “has pointed to no evidence that the parties or the ALJ ever mentioned [the compensability of the low-back pain] or any amendment to the WC-14 form at the hearing,” and we, therefore, cannot conclude that Harris implicitly consented to a trial on the issue of compensability of the low-back pain. Additionally, implied consent does not arise “if the parties do not squarely recognize the new issue as an issue in the trial.”

Accordingly, having reviewed the record, we agree with Harris that the ALJ erred by again making a determination as to the compensability of her low-back pain when that issue was not before the ALJ (and when the ALJ had been instructed by the Appellate Division to refrain from making a determination as to that issue on remand). And because there is no evidence that Harris “had notice and an opportunity to be heard on the issue of compensability, or gave implied consent to trial of that issue, the ALJ erred as a matter of law in making factual findings on that issue.” On remand, the ALJ must make a determination as to whether Harris’s claim meets the criteria of a catastrophic injury as set forth in OCGA § 34-9-200.1 (g) (6) (A) without addressing the issue of compensability of Harris’s low-back pain — which, we note, the ALJ previously determined was compensable.

Decided April 16, 2012.

Lauren L. Benedict, for appellant.

Chambless, Higdon, Richardson, Katz & Griggs, Larry W. Fouche, for appellee.

2. Because we vacate the ALJ’s order and remand for the reasons set forth in Division 1, we need not address Harris’s second enumeration of error.

Accordingly, for all the foregoing reasons, we vacate the ALJ’s order and remand for a new determination of whether Harris is entitled to catastrophic designation without addressing the compensability of the low-back pain.

Judgment vacated and case remanded.

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

        See OCGA § 34-9-200.1 (g) (6) (A) (‘“Catastrophic injury’ means any injury which . . . prevents the employee from being able to perform his or her prior work and any work available in substantial numbers within the national economy for which such employee is otherwise qualified . . . .”).

       Specifically, the ALJ found that Harris “has developed low back pain from her antalgic gait resulting from her knee injury. I find the employee is in need of medical treatment for her low back pain. [The treating physician] is hereby authorized to provide treatment he deems necessary for the employee’s low back pain.” We also note that in a 2005 deposition, the claims adjuster for Harris’s case described both the knee injury and low-back pain as compensable.

       The Appellate Division also determined that the ALJ made an erroneous finding of fact based on testimony as to Harris’s right knee when the left knee was the relevant knee.

        See OCGA § 34-9-105 (b) (decisions of the board affirmed as a matter of law when superior court does not enter an order dispositive of the issues on appeal).

        Home Depot v. Pettigrew, 298 Ga. App. 501, 503 (1) (680 SE2d 450) (2009).

        Id. at 504 (1).

        See id.

        Holliday v. Jacky Jones Lincoln-Mercury, 251 Ga. App. 493, 496 (1) (554 SE2d 286) (2001).

        See id.

        Pettigrew, 298 Ga. App. at 504 (1).

        Id..; see also Cypress Ins. Co. v. Duncan, 281 Ga. App. 469, 472-73 (4) (636 SE2d 159) (2006) (reversing award when party “was not afforded notice or an opportunity to be heard on the issue of permanent partial disability benefits”); Holliday, 251 Ga. App. at 496 (1) (affirming the reversal of award when ALJ addressed issue that was neither expressly or implicitly consented to for determination).

        See Asplundh Tree Expert Co. v. Gibson, 204 Ga. App. 853, 854 (1) (420SE2d 797) (1992) (holding that OCGA § 34-9-103 (b) does not authorize the issuer of an award “to ignore the res judicata effect of its prior award, so as to readdress and redetermine the issue of compensability based upon a new hearing and consideration of new evidence”).


text:
    A11A2152.
    CHRISTY v. THE STATE.
    (727 SE2d 269)
   Dillard, Judge.

Following a traffic stop that was based on his driving a vehicle with excessive window tinting, Curt Christy was charged, via accusation, with one count each of driving under the influence of alcohol to the extent it was less safe for him to do so (DUI less safe), driving under the influence of alcohol based on having a blood-alcohol content exceeding 0.08 grams per 100 milliliters (DUI per se), fleeing a police officer, possession of an open alcoholic beverage container, excessive window tinting, and speeding. Thereafter, Christy filed a motion to suppress the evidence garnered as a result of the traffic stop and a motion to dismiss the accusation, arguing that the excessive-window-tinting statute was unconstitutional. The trial court agreed that the excessive-window-tinting statute was unconstitutional and dismissed that part of the accusation, but it nevertheless denied Christy’s motion to suppress. Christy then stipulated to a bench trial and was convicted of DUI less safe, DUI per se, and speeding. On appeal, Christy contends that the trial court erred in denying his motion to suppress, arguing (1) that the court’s finding that the excessive-window-tinting statute was unconstitutional should have compelled the grant of his motion to suppress and (2) that the traffic stop amounted to an arrest without probable cause. For the reasons set forth infra, we affirm.

Construing the evidence to uphold the trial court’s findings and judgment, the record shows that at approximately 7:30 p.m. on August 29, 2009, a Gwinnett County police officer was monitoring traffic from his marked patrol vehicle when he noticed Christy’s gray Ford Mustang, with window tinting that appeared to be too dark, driving northbound. Determining that he needed to conduct a traffic stop to check the vehicle’s window tinting, the officer pulled onto the road behind Christy and activated his patrol vehicle’s blue lights. But instead of pulling over, Christy sped up and turned into a nearby subdivision. Maintaining his pursuit, the police officer activated his vehicle’s sirens and radioed for backup. Several seconds later, Christy pulled into the driveway of a residence and stopped his vehicle just inside the carport. The officer parked behind Christy, and because the officer could not see into Christy’s vehicle and believed that Christy had attempted to flee, he drew his weapon and ordered Christy to show his hands. Christy complied, at which point the officer ordered him to exit the vehicle and then handcuffed him.

Christy remained handcuffed for only a few minutes until the backup police officers arrived, and during that time, the officer told Christy that he was not under arrest but was being temporarily detained. However, while talking to Christy, the officer detected the odor of an alcoholic beverage and noticed that Christy’s eyes were bloodshot and watery. Consequently, the officer had Christy perform several field sobriety tests, which indicated that Christy was impaired. In addition, the officer used a department-issued meter to test the tinting of Christy’s vehicle’s windows and determined that the tint exceeded the legal limits. The officer then arrested Christy for DUI and read him his Miranda rights as well as the implied-consent notice. Christy submitted to a State-administered breath test, which ultimately indicated a blood-alcohol content of 0.192.

Christy was charged, via accusation, with one count each of DUI less safe, DUI per se, fleeing a police officer, possession of an open alcoholic beverage container, excessive window tinting, and speeding. Thereafter, he filed a motion to suppress the evidence garnered as a result of the officer’s traffic stop and, later, filed a motion to dismiss the excessive tinting charge in the accusation, arguing that the statute violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by allowing an exemption for multipurpose passenger vehicles and vehicles that had the windows tinted before factory delivery without any rational basis for doing so. The trial court held a hearing on both of Christy’s motions, during which the arresting police officer, Christy’s sister, and one of Christy’s neighbors testified. Additionally, Christy argued that the excessive-window-tinting statute was unconstitutional, and thus, the police officer’s traffic stop based on that statute was unlawful.

On February 2, 2011, the trial court issued an order ruling that the excessive-window-tinting statute was unconstitutional and dismissing that charge from the accusation. Nevertheless, the court found that it was not unreasonable for the arresting officer to have relied on the statute in determining whether to conduct a traffic stop of Christy’s vehicle. The court further found that the traffic stop did not amount to an arrest without probable cause, and thus, it denied Christy’s motion to suppress. Thereafter, Christy agreed to a stipulated bench trial, which concluded with the trial court finding him guilty on the DUI per se, DUI less safe, and the speeding charges but not guilty on the remaining charges.

Subsequently, Christy filed notices of appeal to both the Court of Appeals of Georgia and to the Supreme Court of Georgia. Believing that the Supreme Court had jurisdiction, we initially transferred the case to that court, but, in a September 12, 2011 order, the Supreme Court transferred the entire case back to the Court of Appeals. This appeal follows.

At the outset, we note that “[i]n reviewing a trial court’s decision on a motion to suppress, we construe the evidence most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility of the witnesses are adopted unless they are clearly erroneous.” Additionally, because the trial court is the trier of fact, “its findings are analogous to a jury verdict and will not be disturbed if any evidence supports them.”

1. Christy contends that because the trial court ruled that OCGA § 40-8-73.1 (b) is unconstitutional, the court erred in nevertheless finding that the police officer’s belief that Christy’s vehicle violated the excessive-window-tinting statute justified the second-tier traffic stop. We disagree.

But first, because both Christy and the State devote a significant number of pages in their respective briefs arguing as to whether OCGA § 40-8-73.1 (b) is unconstitutional, we must remind the parties that the statute’s constitutionality is not before us. Indeed, in its order transferring the case back to the Court of Appeals, our Supreme Court explicitly found that the constitutionality of OCGA § 40-8-73.1 (b) was not before it in light of the fact that “Christy has not asserted that the trial court erred in determining that the statute is unconstitutional, and the State cannot initiate review of that decision.” Given that this determination is final and binding, we similarly cannot consider either Christy or the State’s constitutionality arguments.

We now turn to Christy’s contention that the trial court erred in denying his motion to suppress after finding OCGA § 40-8-73.1 (b) unconstitutional. As previously noted, we disagree.

It is well settled law that “[bjefore stopping a car, an officer must have specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct.” But a traffic offense “provides the necessary facts for such reasonable suspicion” and “[w]hen an officer witnesses a traffic offense, a resulting traffic stop does not violate the Fourth Amendment, regardless of the officer’s motives for initiating the stop.”

In this matter, the officer stopped Christy’s vehicle for the traffic offense of driving a vehicle with excessive window tinting. And the fact that this statute was later found to be unconstitutional does not render the stop invalid. Indeed, in Ciak v. State, the case in which our Supreme Court struck down an earlier version of OCGA § 40-8-73.1 as unconstitutional, the Court also held that “[t]he unconstitutionality of the statute does not, however, require the grant of the motion to suppress the evidence resulting from the traffic stop.” Citing the Supreme Court of the United States’s opinion in Michigan v. DeFillippo, our Supreme Court explained that

[p]olice are charged to enforce laws until and unless they are declared unconstitutional. The enactment of a law forecloses speculation by enforcement officers concerning its constitutionality — with the possible exception of a law so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws. Society would be ill-served if its police officers took it upon themselves to determine which laws are and which laws are not constitutionally entitled to enforcement.

And here, the officer observed that Christy’s vehicle had darkly tinted windows and reasonably believed this to be in violation of OCGA § 40-8-73.1. Accordingly, he had a reasonable articulable suspicion to justify the traffic stop.

2. Christy also contends that the trial court erred in denying his motion to suppress because the traffic stop amounted to an arrest without probable cause. Specifically, Christy argues that when the officer drew his weapon, ordered him to show his hands outside the window of his vehicle, and handcuffed him, a full-blown arrest lacking probable cause occurred. Again, we disagree.

Georgia law “recognizes three tiers of police-citizen encounters: consensual encounters; brief investigatory stops that require reasonable suspicion; and arrests that require probable cause.” The determination as to which type of encounter is occurring is a mixed question of law and fact with the legal test being “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.” Specifically, “[t]he test is whether a reasonable person in the suspect’s position would have thought the detention would not be temporary.”

As we held in Division 1, supra, the officer’s belief that Christy’s vehicle violated the excessive-window-tinting statute justified his initiating an investigatory traffic stop. But instead of stopping his vehicle when the officer activated his own vehicle’s blue lights, Christy sped up and did not stop until he had pulled into the driveway of his residence. Faced with a suspect who appeared to be fleeing from I him in a vehicle into which he could not see, the officer drew his weapon, ordered Christy to show his hands, and then briefly handcuffed him. In addition, the officer informed Christy at the time that he was detaining him until the officer could “figure out what [was] going on.”

Given these circumstances, the initial encounter between the officer and Christy was a second-tier traffic stop “rather than a full-scale arrest, as the forcible nature of the stop arose from the officer’s primary concern at that point for his safety, and as the nature of the detention did not unambiguously convey a prolonged custodial arrest.” Indeed, a second-tier investigatory stop is not automatically an arrest simply because an officer is armed; “it is often necessary for the police to approach a person with a drawn weapon in a suspiciously dangerous situation in order to protect the physical well-being of both police officers and the public.” Furthermore, an officer may even “handcuff a suspect during an investigatory stop when such action is either reasonable under the circumstances to protect [himself] or the public, or to maintain the status quo.” Accordingly, the trial court did not err in concluding that this encounter was a proper second-tier stop and in denying Christy’s motion to suppress on that basis.

Decided April 18, 2012.

Wayne L. Burnaine, for appellant.

Rosanna M. Szabo, Solicitor-General, for appellee.

Judgment affirmed.

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

        Hammont v. State, 309 Ga. App. 395, 396 (710 SE2d 598) (2011).

        See OCGA § 40-5-67.1 (b) (2).

        See OCGA § 40-6-391 (a) (1).

        See OCGA § 40-6-391 (a) (5).

        See OCGA § 40-6-395 (a).

        See OCGA § 40-6-253 (b) (1) (B).

        See OCGA § 40-8-73.1 (b) (2).

        See OCGA § 40-6-180.

        See U. S. Const. amend. XTV sec. 1.

        See OCGA § 40-8-73.1 (c) (6) (A), (D).

       The two DUI charges were merged during sentencing.

        Hammont, 309 Ga. App. at 396 (punctuation omitted).

        Id. (punctuation omitted).

        See Coker v. State, 261 Ga. App. 646, 646-47 (1) (583 SE2d 498) (2003) (holding that Supreme Court’s order transferring defendant’s appeal to Court of Appeals because no constitutional questions were raised or ruled on in the trial court was final and binding, and thus, Court of Appeals could not consider defendant’s constitutionality arguments).

        State v. Simmons, 283 Ga. App. 141, 143 (640 SE2d 709) (2006) (punctuation omitted).

        Id. (punctuation omitted).

       278 Ga. 27 (597 SE2d 392) (2004).

        Id. at 28-29 (1) (holding that the former distinction drawn in OCGA § 40-8-73.1 between state residents and nonresidents was not justifiable as legislative attempt to address perceived problem of danger to police officers conducting vehicle stops, where no basis existed to distinguish between dangers posed by vehicles driven by residents and by nonresidents).

        Id. at 29 (2).

       443 U. S. 31, 38 (III) (99 SC 2627, 61 LE2d 343) (1979).

       Ciak, 278 Ga. at 29 (2).

        See id. at 30 (2) (holding that unconstitutionality of excessive-window-tinting statute forming basis for traffic stop did not require suppression of evidence derived from stop); see also Simmons, 283 Ga. App. at 143 (holding that police officer’s observation of darkly tinted windows on defendant’s vehicle justified traffic stop).

        Lewis v. State, 294 Ga. App. 607, 608 (1) (a) (669 SE2d 558) (2008) (punctuation omitted).

        Id. (punctuation omitted).

        Id. (punctuation omitted).

        Id. at 609 (1) (a).

        Id. (punctuation omitted).

        Stringer v. State, 285 Ga. 842, 845 (2) (684 SE2d 590) (2009) (punctuation omitted).

        See id. (holding that officers may handcuff a suspect during an investigatory stop when such action is reasonable under the circumstances to protect themselves); Lewis, 294 Ga. App. at 609-10 (1) (a) (concluding that an investigatory stop is not automatically an arrest simply because a police officer is armed); State v. Burks, 240 Ga. App. 425, 426-27 (1) (523 SE2d 648) (1999) (same).


text:
    A12A0270.
    MURRAY v. THE STATE.
    (727 SE2d 267)
   DOYLE, Presiding Judge.

William Terrence Murray appeals his conviction for two counts of driving without a valid license after being declared a habitual violator. We reverse as to those counts, for the reasons that follow.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. Moreover, we do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

So viewed, the evidence shows that on April 22, 2007, Murray was pulled over after an officer observed him driving approximately 70-80 miles per hour in a 45-mile-per-hour zone. Acheck of Murray’s driver’s license revealed that he was declared a habitual violator in 2004 and had a probationary driver’s license. After the officer noticed Murray’s large pupils and smelled alcohol emanating from him, Murray was arrested for driving under the influence of alcohol (“DUI”). A subsequent blood test indicated that Murray’s blood alcohol level was 0.138 grams.

Approximately two weeks later, on May 6, 2007, Murray drove his vehicle off the highway and into a ditch. When police reported to the scene, Murray, who was naked below the waist, had bloodshot, watery eyes and slurred speech, was argumentative and agitated, and smelled of alcohol. Murray was arrested for DUI, but he refused to submit to a blood test. The arresting officer ran Murray’s license and learned that Murray was a habitual violator; Murray did not tell the officer that he had a probationary license.

With regard to the April 2007 incident, Murray was charged with the following: driving without a valid license after being declared a habitual violator (Count 1); driving under the influence of alcohol with an illegal alcohol concentration (“DUI per se”) (Count 2); driving under the influence of alcohol to the extent that he was a less safe driver (“DUI less safe”) (Count 3); possession of marijuana (Count 4); possession of an open container of alcohol while operating a motor vehicle (Count 5); reckless driving (Count 6); and operating a vehicle without an operational tag light (Count 7). With regard to the May 2007 incident, Murray was charged with the following: driving without a valid license after being declared a habitual violator (Count 8); DUI per se (Count 9); failure to maintain lane (Count 10); and alteration of his license plate (Count 11).

Murray moved for a directed verdict as to Counts 1, 4, 5, 6, and 9, and the trial court directed a verdict on Counts 4 and 9, but denied the motion on Counts 1, 5, and 6. The jury found Murray guilty of the remaining charges (Counts 1-3, 5-8,10 and 11), and he was sentenced to a term of 14 years, to serve 12. The trial court denied Murray’s subsequent motion for new trial, and this appeal followed.

1. Murray argues that the trial court erred by denying his motion for directed verdict as to Count 1, which alleged that on April 22, 2007, Murray

did unlawfully then and there DRIVE A MOVING MOTOR VEHICLE AFTER THE ACCUSED WAS NOTIFIED THAT [T]HE ACCUSED WAS DECLARED A HABITUAL VIOLATOR, REVOKING THE ACCUSED’S LICENSE TO DRIVE AND THEREAFTER FAILING TO OBTAIN A VALID DRIVER’S LICENSE, THIS OFFENSE OCCURRING WITHIN FIVE (5) YEARS OF THE ACCUSED RECEIVING THE NOTICE STATED SUPRA.

At trial, the arresting officer testified that Murray had a probationary driver’s license on the day of his April 22,2007 arrest, and the State tendered a copy of Murray’s application for a probationary driver’s license, which was approved on October 12,2006, and expired on August 20, 2009.

A probationary driver’s license is a valid driver’s license for purposes of OCGA § 40-5-58 (c) (l). Thus, Murray was not driving without a valid driver’s license. And, while he

could have been charged with other violations of OCGA § 40-5-58, such as violating the terms of his probationary driver’s license, when a crime can be committed in more than one way, the prosecution cannot be permitted to prove that crime in a different manner than that alleged in the indictment. Because there was no conflict in the evidence, and the charge of being a habitual violator operating a vehicle without a “valid driver’s license” demanded a verdict of acquittal as a matter of law, the trial judge erred [by] denying [Murray’s] motion for a directed verdict as to that count.

2. Murray also contends that trial counsel was ineffective by failing to move for a directed verdict as to Count 8, which alleged that he operated a motor vehicle as a habitual violator without a valid driver’s license on May 2, 2007. We agree.

In order to prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, appellant must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance.

Here, the State charged in Count 8 that on May 6, 2007, Murray drove without a valid driver’s license after being declared a habitual violator. At trial, the State submitted evidence that Murray’s probationary license was approved on October 12, 2006, and expired on August 20, 2009, and there was no evidence that the Department of Driver Services had revoked his probationary license. Thus, as we concluded in Division 1, the State failed to prove the charge alleged in Count 8. Because the trial court would have been required to grant a motion for directed verdict as to Count 8, Murray’s trial counsel was ineffective by failing to make such a motion. The trial court erred by denying Murray’s motion for new trial on this basis, and his conviction as to Count 8 must be reversed.

Decided April 18, 2012.

James C. Wyatt, for appellant.

T. Joseph Campbell, District Attorney, Suzanne Z. Brookshire, Assistant District Attorney, for appellee.

Judgment reversed.

Andrews and Boggs, JJ., concur.

       See OCGA§ 40-5-58 (c) (1).

       Murray does not challenge the remaining counts of his conviction, and therefore, we do not address them.

       (Footnote omitted.) Christian v. State, 297 Ga. App. 596, 596 (1) (677 SE2d 767) (2009).

       The trial court merged Count 3 with Count 2.

       See id. at 597 (1).

       (Punctuation and footnote omitted.) Id.

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

       (Citation and punctuation omitted.) Vergara v. State, 287 Ga. 194,197 (3) (695 SE2d 215) (2010).

       See Christian, 297 Ga. App. at 597 (1).

       See Coney v. State, 290 Ga. App. 364, 372-373 (3) (c) (659 SE2d 768) (2008).