text:
    A11A2219.
    MALDONADO v. THE STATE.
    (722 SE2d 123)
   Ellington, Judge.

A Gwinnett County jury found Martin Maldonado guilty of trafficking in cocaine, OCGA § 16-13-31 (a) (1) (C) (400 or more grams). He appeals from the denial of his motion for new trial, contending that the evidence was insufficient to support his conviction, that the trial court erred in denying his motions for mistrial, and that his trial counsel was ineffective. Finding no error, we affirm.

1. Viewed in the light most favorable to the jury’s verdict, the record shows the following. On the morning of June 12, 2009, the City of Snellville Police Department set up a roadblock in Snellville, Gwinnett County, to check for seatbelt and license violations. At about 10:00 a.m., Maldonado passed through the check point, and the officers discovered that he did not have a driver’s license. Although the truck that Maldonado was driving was registered to another person, Maldonado said the truck was his. Maldonado moved the truck out of the roadway, and a police sergeant advised him that he was under arrest for driving without a license. The sergeant allowed Maldonado to use a cell phone to call someone to come retrieve the truck. However, because the friend could not get there within the hour and because police policy dictated that the truck had to be removed from the roadside within 30 minutes, the sergeant informed Maldonado that his truck would be impounded. Maldonado asked that the truck bed be secured because all of his belongings were in it.

When the sergeant inventoried the truck’s contents prior to releasing it to the towing company, he discovered in a tool box what appeared to be dark-colored bricks, taped together and covered with grease. The sergeant testified that, based on his training and experience, he had reason to believe that the bricks were illegal narcotics. He cut open one of the bricks and used a field kit to test the substance inside, and the test yielded a positive result for cocaine. The suspected cocaine was later analyzed by a forensic chemist with the Georgia Bureau of Investigation, who testified that the bricks contained 10,733.48 grams of 72.3 percent pure cocaine. The cocaine had a street value of about $1 million.

Maldonado argues that the evidence shows, at most, that he was merely present and that others had equal access to the truck bed. Therefore, he argues, the State’s evidence was insufficient to show that he knowingly possessed the cocaine. Under Georgia law, “[t]he driver of a vehicle is presumed to have exclusive possession of contraband substances found in the vehicle.” (Citation omitted.) Foster v. State, 300 Ga. App. 446, 449 (1) (685 SE2d 422) (2009). That presumption is rebuttable. Id.

The equal access rule, as it applies in the automobile context, is merely that evidence showing that a person or persons other than the owner or driver of the automobile had equal access to contraband found in the automobile may or will, depending upon the strength of the evidence, overcome the presumption that the contraband was in the exclusive possession of the owner or driver. It is not an affirmative defense for which the burden to disprove falls on the State.

(Citation and punctuation omitted.) Marion v. State, 268 Ga. App. 699, 700 (1) (b) (603 SE2d 321) (2004). “[WJhether the equal access evidence is sufficient to rebut the inference of possession is a question for the jury.” (Footnote omitted.) Bodiford v. State, 246 Ga. App. 879, 880 (1) (542 SE2d 628) (2000).

The evidence shows that Maldonado claimed ownership of the truck, though it was registered to someone else. Maldonado asserted possession and control over contents of the truck bed during the traffic stop. It is uncontroverted that he was the sole occupant of the vehicle, and there was no evidence adduced demonstrating that anyone else had access to the contents of the truck. The jury could also infer from the value of the cocaine that its owner would keep it close to him. Given this evidence, the jury was authorized to rely on the presumption of possession and was not compelled to find that the presumption had been rebutted. See Hamilton v. State, 293 Ga. App. 297, 298-299 (1) (a) (666 SE2d 630) (2008). Consequently, the evidence authorized the jury to find Maldonado guilty of trafficking in cocaine beyond a reasonable doubt. See id.

2. Maldonado contends that the trial court erred in refusing to grant a motion for mistrial after a witness commented on his silence. The record, however, does not reveal an improper comment. The statement at issue is as follows:

Prosecutor: Did you inform [Maldonado] that he was being arrested for the drugs at that time?
Officer: I advised him — after he asked me if there was somebody that could speak Spanish, I advised him that I did want to talk to him about the large amount of cocaine that was found in the back of his vehicle.
Prosecutor: Let me move on. What happened to Mr. Maldonado at that time, was he taken into custody and taken for booking at the jail?

As the trial court properly found, the officer’s statement that he wanted to talk to Maldonado about the cocaine is not the equivalent of a statement that Maldonado had declined to speak with him or had invoked his right to remain silent. Nor is Maldonado’s alleged refusal to speak to the officer a reasonable inference that may be drawn from the officer’s statement, especially since Maldonado was asking for an interpreter, which suggests a desire to speak. The prosecutor did not dwell on this line of questioning, but moved on to a discussion of Maldonado’s arrest and the disposition of the contraband seized, including the chain of custody of the cocaine. Because there is nothing in this line of questioning that improperly touched upon Maldonado’s right to remain silent, the court did not err in denying the motion for mistrial. See Franks v. State, 301 Ga. App. 590, 591 (688 SE2d 382) (2009) (“[T]he officer’s recitation was interrupted; and there was no testimony that could be fairly construed as commenting or even touching upon whether [the defendant] had exercised his right to remain silent.”) (footnote omitted).

3. Maldonado contends that the trial court should have granted his motion for a mistrial, contending that the prosecutor elicited the officer’s statement that Maldonado told him that all of his belongings were in the bed of the truck in violation of a granted motion in limine that prohibited reference to any statements made by Maldonado after arrest. We disagree.

The order granting Maldonado’s motion in limine provides, in pertinent part:

The State does not allege that the Defendant made any Involuntary Statements, Admissions and/or Confessions. Therefore, IT IS SO ORDERED that the Court GRANTS Defendant’s Motion and any and all involuntary statements, admissions, and/or confessions are excluded from evidence in the above-styled case.

Although Maldonado’s statement that all of his belongings were in the bed of the truck was made after his arrest, the record shows that the statement was not prompted by police questioning, but was a voluntary utterance he made upon learning that his truck was going to be impounded. The trial court found the statement to be a “voluntary outburst” and ruled that the statement was admissible since it was not subject to the terms of the order, was not the result of any police interrogation, and constituted probative evidence. We discern no error with the court’s ruling. See State v. Davison, 280 Ga. 84, 87-88 (2) (623 SE2d 500) (2005) (“[vjoluntary, spontaneous outbursts that are not made in response to any form of custodial questioning or interrogation are admissible at trial”) (citation and punctuation omitted).

Given that the record supports the trial court’s finding that Maldonado’s request was not an involuntary statement, admission, or confession falling within the ambit of the motion in limine, the trial court did not err in denying the motion for mistrial. See Hernandez v. State, 291 Ga. App. 562, 565 (1) (662 SE2d 325) (2008) (“The trial court has a broad discretion in passing on motions for mistrial, and its ruling will not be disturbed by the appellate courts unless it appears that there has been a manifest abuse of discretion and that a mistrial is essential to the preservation of the right to a fair trial.”) (punctuation and footnote omitted).

Decided January 11, 2012.

Alois M. Moore, Patrick A. Powell, for appellant.

Daniel J. Porter, District Attorney, Wesley C. Ross, Assistant District Attorney, for appellee.

4. Maldonado contends his trial counsel was ineffective because he did not inform him of the evidence that the State had against him, specifically, the contents of the State’s discovery package. Counsel testified during the hearing on the motion for new trial, however, that he received the State’s discovery and that he later discussed the State’s evidence with Maldonado at the jail with the assistance of an interpreter. The trial court, therefore, ruled, inter alia, that Maldonado “completely failed to make any showing whatsoever” that counsel’s performance was deficient. We agree.

To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.

(Citations and punctuation omitted.) Rector v. State, 285 Ga. 714, 716-717 (6) (681 SE2d 157) (2009). If an appellant fails to meet his or her burden of proving either prong of this test, the reviewing court does not have to examine the other prong. Id. “In reviewing the trial court’s decision, 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.) Id. Because Maldonado did not carry his burden of showing that counsel’s performance was deficient, his claim of ineffective assistance of counsel must fail. See id.

Judgment affirmed.

Doyle, P. J., and Miller, J., concur.

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       OCGA § 16-13-31 (a) (1) defines trafficking in cocaine, in relevant part, as being “knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine!.]”


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A11A1502.
    BERRY v. THE STATE.
    (722 SE2d 127)
   PHIPPS, Presiding Judge.

Michael Berry appeals his conviction for possession of a firearm by a convicted felon, contending that the trial court should have suppressed the firearm evidence as the fruit of an illegal search of the car he had been driving. Because the record authorized the trial court’s determination that the search was pursuant to Berry’s consent, we affirm.

In Tate v. State, the Supreme Court of Georgia discussed three fundamental principles which must be followed when conducting an appellate review of an order ruling upon a motion to suppress.

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his 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 court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

So construed, the evidence showed that on the afternoon of March 1, 2007, shortly after Berry arrived at the residence of a longtime friend, five or six law enforcement officers arrived. When the friend answered the knock at the front door, one of the officers, Christopher Brewer, explained that they were looking for a certain person. The resident told Brewer that the person was not there. But because Brewer had heard someone running to the back of the house upon the officers’ approach, he asked the resident whether they could enter the home and search for him. The resident gave his permission.

Having stepped into the living room of the home, Brewer saw a man sitting there. Brewer also saw on a coffee table a pile of sandwich bags with the corners clipped off, which observation caused the officer concern that narcotics were being packaged for distribution. About this time, Berry and another individual walked out of back rooms and into the living room, where they sat while the officers searched the house, but did not find the person for whom they were searching.

Brewer then called the resident to a back room of the house, where he explained that the clipped sandwich bags indicated to him that narcotics distribution was taking place. The resident then pointed Brewer to (suspected) cocaine that was tucked underneath some flooring.

The officers placed the four house occupants under arrest. Brewer placed handcuffs on Berry and, upon searching his person incident to the arrest, found firearm ammunition and a set of car keys. Brewer asked Berry for the location of his car and for his consent to search it. Berry told the officer that the car was parked at the curb and gave his permission to search it. During the search, Brewer found a firearm.

In his motion to suppress the firearm evidence, Berry argued that the warrantless search of the vehicle violated his Fourth Amendment rights. The state countered that no violation occurred because Berry consented to the search. “Where the state seeks to justify a warrantless search on grounds of consent, it has the burden of proving that the consent was, in fact, freely and voluntarily given.” Berry contends herein that the trial court erred in finding: (i) that he gave his consent, and alternatively, (ii) that his consent was voluntarily given.

1. As Berry concedes in his brief to this court, Brewer testified, “[Berry] gave me permission to search the vehicle.” Accordingly, there is no merit in Berry’s contention that the state failed to show that he told the officer that he could search the vehicle.

2. Berry contends that the state failed to show that his consent was voluntary.

Although Berry points to evidence that no officer advised him of his rights under Miranda v. Arizona before he was asked for and thereupon gave his consent,

[t]he Fourth Amendment test for a valid consent to search is that the consent be voluntary, and voluntariness is a question of fact to be determined from all the circumstances. Whether the accused was advised of his constitutional rights is a factor to be taken into account in determining voluntariness. However, it is not a prerequisite to establishing a voluntary consent, as no single factor is controlling.

“It is only by analyzing all the circumstances of an individual consent that it can be ascertained whether in fact it was voluntary or coerced.”

Here, the record shows that the incident occurred while Berry was visiting a longtime friend at his residence. The law enforcement officers entered and searched the house only after asking for and receiving the resident’s permission to do so. There is no evidence that, prior to giving his consent to search the vehicle, Berry was subjected to isolation from the others, prolonged questioning, physical punishment, or mental coercion. Rather, Brewer testified that, when he asked for and obtained Berry’s permission to search the vehicle, he did not threaten or coerce Berry in any way. Furthermore, “[tjhere was no showing that the officers misrepresented their authority to enter and search [Berry’s car] against [his] will, if necessary.” Berry was about 45 years of age on the date of the incident, and he has made no allegation that his education or intelligence rendered his consent involuntary. Finally, we do not accept Berry’s general assertion that his consent was the product of “an atmosphere of coercive conduct.”

Decided January 12, 2012.

Catherine S. Bernard, for appellant.

Craig Fraser, District Attorney, Bradford N. Childers, Assistant District Attorney, for appellee.

In light of the totality of the circumstances, the trial court was authorized to conclude that the search of the vehicle was pursuant to Berry’s consent and therefore did not violate Berry’s Fourth Amendment rights. Berry has shown no error in the admission of the firearm evidence.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

       264 Ga. 53 (440 SE2d 646) (1994).

       See generally Miller v. State, 288 Ga. 286-289 (1) (702 SE2d 888) (2010) (reaffirming Tate, supra).

        Tate, supra at 54 (1) (citations, punctuation and footnote omitted). See generally White v. State, 263 Ga. 94, 98 (5) (428 SE2d 789) (1993) (suppression hearing transcript and trial transcript may be considered on review of suppression ruling); see Arnold v. State, 304 Ga. App. 90, n. 2 (695 SE2d 402) (2010) (same).

        Dean v. State, 250 Ga. 77, 79 (2) (a) (295 SE2d 306) (1982) (citation and punctuation omitted); see Brooks v. State, 285 Ga. 424, 425 (677 SE2d 68) (2009).

       See Tate, supra; State v. Encinas, 302 Ga. App. 334, 336 (691 SE2d 257) (2010) (a reviewing court must accept the factual and credibility determinations and inferences drawn by the trier of fact as long as there is evidence in the record to support the trial court’s findings).

       384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

        Arrington v. State, 286 Ga. 335, 344 (15) (687 SE2d 438) (2009) (citations and punctuation omitted); see State v. Folsom, 285 Ga. 11, 14 (2) (673 SE2d 210) (2009) (“A violation of Miranda does not warrant the suppression of the fruit of otherwise voluntary statements.”), citing United States v. Patane, 542 U. S. 630 (124 SC 2620,159 LE2d 667) (2004) (plurality opinion with concurrence); Reaves v. State, 284 Ga. 181, 183 (2) (b) (664 SE2d 211) (2008) (“physical evidence obtained as the fruit of a statement made without the required Miranda warnings should not be suppressed so long as the statement was voluntary”), citing Patane, supra.

        Brooks, supra at 425-426, quoting Schneckloth v. Bustamonte, 412 U. S. 218, 233 (93 SC 2041, 36 LE2d 854) (1973), and citing Dean, supra at 80 (2) (a) (setting forth factors to be considered in assessing the totality of the circumstances, which factors include the age of the accused, his education, his intelligence, the length of detention, whether the accused was advised of his constitutional rights, the prolonged nature of questioning, the use of physical punishment, and the psychological impact of all these factors on the accused).

       As Berry concedes, he does not have standing to contest the officers’ entry or search of his friend’s residence. See Ferron v. State, 216 Ga. App. 456 (454 SE2d 637) (1995) (“A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.”) (punctuation omitted).

       See Dean, supra at 80 (2) (a) (fact that defendant is held in custody at time he gives consent does not, standing alone, establish that consent was coerced).

        Brooks, supra at 426, contrasting Bumper v. North Carolina, 391 U. S. 543 (88 SC 1788, 20 LE2d 797) (1968) (coercion found where officers announced that they had a warrant and then attempted to justify the search solely on the basis of consent).

       See generally Brooks, supra (noting the lack of an allegation that appellant’s age or level of intelligence rendered his consent involuntary).

       See generally Park v. State, 308 Ga. App. 648, 652 (1) (708 SE2d 614) (2011) (rejecting argument that consent was coerced for reasons that six to eight officers were present, officers had guns drawn when they approached defendant, and defendant had been handcuffed and placed on ground during detention; at time consent was given, officers’ guns had been returned to holsters, and an audiotape of incident revealed that the officers spoke in normal tones and did not use threats or coercion) and cits.

        Brooks, supra; Tate, supra; Dean, supra; Park, supra.


author: MlKELL, Chief Judge.

text:
    A11A1537.
    MOORE v. THE STATE.
    (722 SE2d 160)
   MlKELL, Chief Judge.

Jason Moore appeals from the denial of his motion to recuse a Douglas County Superior Court judge from presiding over his motion to suppress evidence and statements. For the following reasons, we affirm.

We employ an abuse of discretion standard in reviewing rulings based on motions to recuse.

Moore, indicted for, inter alia, trafficking in cocaine and possession of marijuana, moved to recuse Judge Robert J. James, asserting that in 27 years on the bench, James has never granted a motion to suppress based on a violation of the Fourth Amendment of the United States Constitution, or has exhibited a policy of denying such motions, presenting an appearance of partiality. Without holding a hearing, James concluded that the motion to recuse was untimely because while Uniform Superior Court Rule 25.1 requires affidavits accompanying motions to recuse to be filed within five days of the affiant’s first learning of the alleged grounds for recusal, defense counsel’s affidavit indicated he had known about James’s alleged policy of not granting motions to suppress since at least 2002. James also found, without explanation, that the accompanying affidavit was legally insufficient. Moore appeals, alleging that the trial judge erred in denying his motion on its face rather than assigning it to another judge for a hearing.

Uniform Superior Court Rule 25.3 provides:
When a judge is presented with a motion to recuse . . . accompanied by an affidavit, the judge shall temporarily cease to act upon the merits of the matter and shall immediately determine the timeliness of the motion and the legal sufficiency of the affidavit, and make a determination, assuming any of the facts alleged in the affidavit to be true, whether recusal would be warranted. If it is found that the motion is timely, the affidavit sufficient and that recusal would be authorized if some or all of the facts set forth in the affidavit are true, another judge shall be assigned to hear the motion to recuse. . . .

We turn first to the question of the affidavit’s sufficiency. Defense counsel’s affidavit indicates that he made Open Records Act requests to the Douglas County Superior Court Clerk’s Office and the Douglas County District Attorney’s Office for closed cases in which the judge had granted motions to suppress, and that these requests yielded letters indicating that closed files were available for review in general. The affidavit also indicates that defense counsel’s query to a listserv for criminal defense lawyers elicited no responses citing any case in which the judge had granted a motion to suppress or found a Fourth Amendment violation. These communications are hearsay.

Further, to be sufficient, an affidavit
shall clearly state the facts and reasons for the belief that bias or prejudice exists, being definite and specific as to time, place, persons and circumstances of extra-judicial conduct or statements, which demonstrate either bias in favor of any adverse party, or prejudice toward the moving party in particular, or a systematic pattern of prejudicial conduct toward persons similarly situated to the moving party, which would influence the judge and impede or prevent impartiality in that action. Allegations consisting of bare conclusions and opinions shall not be legally sufficient to support the motion or warrant further proceedings.

The affidavit in the instant case does not satisfy the aforementioned test for several reasons. First, the affidavit fails to present specific and definite information. While a judge must disqualify himself in any proceeding where his impartiality might reasonably be questioned, the lack of specifics here prevents any reasonable questioning of James’s impartiality. Second, while Moore argues a generalized bias based on James’s prior rulings, this court has distinguished between prior judicial actions and bias. “[WJithout such a demarcation, no judge might ever rule but once upon a disputed question of law or factual circumstances without forever thereafter being disqualified from hearing similar matters.”

Finally, “a trial court may deny a motion to recuse, without referring the matter to another judge, if recusal would not be warranted even if the facts alleged in the motion are assumed to be true.” The trial judge’s denial, absent a hearing, of the motion to recuse was not an abuse of discretion in the instant case because even assuming that all the facts alleged are true, the affidavit still is legally insufficient because the kind of bias or prejudice requiring recusal must stem from an extra-judicial source. This is not the type of partiality alleged here. The only remedy for the type of bias or prejudice alleged in the affidavit before us is an appeal in this case and in each case where the judge has decided facts in a clearly erroneous direction or has decided facts based upon an erroneous understanding of the law. The only other possible remedy is at the ballot box.

Because we have found the affidavit legally insufficient, we need not reach the issue of the motion’s timeliness.

Decided January 12, 2012.

Jacobs, King & Wallack, Sanford A. Wallack, for appellant.

David McDade, District Attorney, Benjamin Von Schuch, James A. Dooley, Assistant District Attorneys, for appellee.

Judgment affirmed.

Dillard and Boggs, JJ., concur.

        Vaughn v. State, 247 Ga. App. 368, 370 (2) (543 SE2d 429) (2000).

       See Wellons v. State, 266 Ga. 77, 88 (18) (463 SE2d 868) (1995); Rice v. Cannon, 283 Ga. App. 438, 444 (2) (641 SE2d 562) (2007).

       Uniform Superior Court Rule 25.2. Accord Hill v. Clayton County Bd. of Commrs., 283 Ga. App. 15, 20 (3) (640 SE2d 638) (2006).

       Code of Judicial Conduct, Canon 3 (E). See Simprop Acquisition Co. v. The L. Simpson Charitable Remainder Unitrust, 305 Ga. App. 564, 567 (2) (699 SE2d 860) (2010) (“When considering the issue of recusal, both OCGA § 15-1-8 and Canon 3 of the Code of Judicial Conduct should be applied”) (citations and punctuation omitted). OCGA § 15-1-8 is implicated in the instant case.

        Smith v. State, 250 Ga. 438, 439 (1) (298 SE2d 482) (1983) (trial judge’s decision not to assign motion to recuse to another judge upheld even where trial judge had indicated support of laboratory whose testing accuracy movant intended to challenge).

        Gude v. State, 289 Ga. 46, 48 (2) (709 SE2d 206) (2011).

        Vaughn, supra; Uniform Superior Court Rule 25.2, supra.


text:
    A11A1694.
    MAGDANGAL v. HENDRIX.
    (722 SE2d 130)
   MlKELL, Chief Judge.

Astrid C. Magdangal, the biological mother of J. M., appeals from the trial court’s order legitimating William Hendrix as the father, granting joint legal custody of J. M. to both parents, with physical custody in Magdangal, and ordering visitation and child support payments by Hendrix.

Before granting a petition to legitimate, the court must initially determine whether the father has abandoned his opportunity interest to develop a relationship with the child. Then, depending on the nature of the putative father’s relationship with the child and other surrounding circumstances, the standard for evaluating whether legitimation is appropriate is either a test of his fitness as a parent or the best interest of the child.

This Court reviews a trial court’s ruling on a legitimation petition for an abuse of discretion. Further, “factual findings made after a hearing shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. . . . The appellate courts will not disturb fact findings of a trial court if there is any evidence to sustain them.”

Hendrix and Magdangal attended the Harvest Fire Church International, a congregation of 40 to 50 people, where Hendrix was very active in children’s ministries. They first became friends when they both had leadership roles in a martial arts program for children at the church and then began dating in September 2003. In approximately October 2003, the couple became sexually active.

During their three-year relationship, Hendrix continued to be very active in the church, participating as an usher, in the music ministry, and in praise and worship, in addition to the children’s ministries. His minister described him as an excellent role model and as being willing to take responsibility. It was Hendrix’s goal to attend a bible school in order to enter the ministry, and his pastor and church supported that goal. Magdangal, at that time, also supported Hendrix’s effort to obtain this education, even though it meant that he would be in Oklahoma during part of her pregnancy in 2006. Hendrix attended one doctor’s appointment with Magdangal during her pregnancy, when the gender of the child was determined. According to Hendrix, Magdangal called him after all of the other doctor’s appointments and discussed with him the status of the pregnancy. Hendrix was able to hear the baby’s heartbeat for the first time over the telephone. Hendrix was excited about the prospect of being a father and anticipated having a relationship with his son.

Eventually, Hendrix returned to Georgia from school because it was too difficult being away. Hendrix purchased gifts for the baby and items to use in caring for him. Hendrix and Magdangal’s relationship became contentious, and Pastor Dennington of their church attempted to counsel them during the pregnancy. The pastor testified that he felt it was probably not in the best interest of the child or the couple for them to get married due to immaturity and personality conflicts between them.

Hendrix became concerned about whether he was the father of the baby because he had not had relations with Magdangal during the time when she said the child had been conceived. Also, Magdan-gal began to harass Hendrix by asking if he thought the child was his. In the spring of 2006, Magdangal told Hendrix that she had had sex with another man during their relationship. Also, Magdangal had confided in Hendrix’s mother that she had been intimate with someone else. Later, during her sixth month of pregnancy, Magdan-gal told Hendrix that she was going to bring in another man to be the child’s father.

Because of his concerns, Hendrix requested that Magdangal agree to have a DNA test following the child’s birth. Magdangal initially agreed, but then changed her mind repeatedly and never agreed to the test. Because of this issue and continuing difficulties in the relationship, Hendrix decided to end the relationship with Magdangal. Because he had become very upset over the issue, Hendrix’s mother, Sherry Hendrix, agreed to contact Magdangal, with whom she had become close. On April 27, 2007, Sherry Hendrix called Magdangal and told her the relationship was over.

Following the birth of J. M. on April 29, 2007, Hendrix continued to express to his mother his desire to be involved in J. M.’s life. In mid-June, Hendrix was served with an abandonment warrant, and the hearing was held on July 17, 2007. At that time, Hendrix requested a court-ordered DNA test and opened a child support case in Cherokee County on J. M. For reasons not reflected in the record, Hendrix did not receive the results from the DNA test until 13 months later, on April 19, 2008. The result was that he was, in fact, the father of J. M. Hendrix began making child support payments in June 2008 and has continued to make them. Hendrix immediately began to seek legal assistance to begin the legitimation process, but realized that he was financially unable to do so. Hendrix continued to work to get the financing together and eventually found his trial counsel, who agreed to work out a payment schedule for him. On April 23, 2010, Hendrix initiated this legitimation proceeding.

Hendrix paid a medical bill of $336 for J. M. when Magdangal made him aware of it and sent letters and made calls to Magdangal to inquire about insurance needs for J. M., but received no response from her. Hendrix did list J. M. as his beneficiary on a life insurance policy provided by his work. Hendrix acknowledged that he had never met his son and had not sent Christmas and birthday cards or presents prior to the legitimation hearing. He did send approximately $800 worth of baby items, some of which he purchased, to Magdangal. Also, he had attempted to see his son on at least one occasion following his birth.

Pastor Dennington believed that Hendrix had matured a great deal over the three years prior to the legitimation hearing and, in his opinion, it would be in the best interest of the child to have a relationship with Hendrix.

Magdangal had been involved with Derek Cassier for three years at the time of the legitimation hearing in November 2010. Cassier testified that he first met J. M. when the baby was six months old and that J. M. refers to Cassier as “daddy.” Magdangal testified that she did not see any benefit to her son having a relationship with his biological father and that she could not respect him as a co-parent. Both Cassier and Magdangal said they were in a monogamous committed relationship, but they were not married. Magdangal testified both that she and J. M. lived with her parents and that she and J. M. lived with Cassier.

1. Magdangal’s first three enumerations of error are that the trial court erred in finding that Hendrix “had not abandoned his opportunity interest to legitimate”; that there “was no evidence of the biological father abandoning his opportunity interest”; and that he “had not abandoned his opportunity interest by paying his child support even though he did not participate in the child’s life in any other way.”

Decided January 12, 2012

Gregory D. Golden, for appellant.

Abbott & Abbott, Robert K. Abbott, Jr., Hill-MacDonald, Vic B. Hill, for appellee.

Because all of these address the first prong of the legitimation inquiry, they are addressed together.

We find that, based on the facts set out above, the trial court did not err in its findings that Hendrix did not abandon his opportunity interest to legitimate. In making this decision, we note that the appropriate inquiry is not whether “the father could have done more,” but rather whether the father “has done so little as to constitute abandonment.”

While Magdangal argues that Hendrix did not make enough effort to form a relationship with the child following its birth, it is apparent that, during her pregnancy, Hendrix was involved and interested in his child. Upon finding out that there was a question as to his paternity, Hendrix immediately sought DNA testing, which Magdangal refused until a court intervened. Upon Magdangal’s filing of the abandonment petition, Hendrix initiated a child support proceeding and began paying child support pursuant to the court order. Further, upon receipt of the DNA results, Hendrix initiated this legitimation proceeding as soon as he was financially able to do so.

The trial court’s conclusion that Hendrix did not abandon his opportunity interest in developing a relationship with the child is not clearly erroneous and will not be disturbed here.

2. Magdangal’s remaining enumerations are without merit.

Judgment affirmed.

Dillard and Boggs, JJ., concur.

       (Footnote omitted.) Morris v. Morris, 309 Ga. App. 387, 388-389 (2) (710 SE2d 601) (2011).

       Id.

       (Citation and punctuation omitted.) Harris v. Williams, 304 Ga. App. 390-391 (696 SE2d 131) (2010).

         Cassier said they had lived together since the winter of 2009, although Magdangal verified interrogatories in May 2010 stating that she lived with her parents.

        Binns v. Fairnot, 292 Ga. App. 336, 338 (665 SE2d 36) (2008).

        Turner v. Wright, 217 Ga. App. 368, 369 (1) (457 SE2d 575) (1995) (father’s interest and actions both during the pregnancy and after the child’s birth are equally significant in determining abandonment issue); see also Caldwell v. Meadows, 312 Ga. App. 70 (717 SE2d 668) (2011).

        Binns, supra at 337 (father did not file legitimation petition until the child was over three years old due to his inability to afford an attorney).


text:
    A11A1739.
    CWIKLA v. THE STATE.
    (722 SE2d 156)
   MlKELL, Chief Judge.

After a jury trial, Michael Cwikla was convicted of two counts of aggravated child molestation against his girlfriend’s three-year-old daughter, T. D., and sentenced to a life sentence with twenty-eight years to serve. Cwikla appeals the trial court’s denial of his motion for new trial, arguing that the trial court erred in denying his motion to strike a prospective juror and that he received ineffective assistance of counsel. Having reviewed these claims, we find no error and affirm.

“On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.” So viewed, the evidence shows that Cwikla is the former boyfriend of T. D.’s mother. Cwikla and T. D.’s mother lived together at his mother’s house for just over a year. After the couple broke up, Cwikla later found himself homeless and moved back in with T. D.’s mother for a short period of time. T. D. was fond of Cwikla, and called him “Daddy.”

T. D.’s grandmother, Francis Brown, testified that while she was watching television with T. D., the child told her “don’t ever tell my mommy . . . I’ve touched my daddy’s penis.” Brown further testified that T. D. went on to reveal that she had been forced to perform oral sex upon Cwikla several times. Brown remained calm and continued to watch television with the child. However, when her daughter arrived, she notified her, and a police report was made. T. D. was then interviewed at the Anna Crawford Children’s Center. A videotape of this interview was played for the jury during trial.

1. Although Cwikla does not challenge the sufficiency of the evidence on appeal, we conclude that the evidence adduced at trial was sufficient under the standard set forth in Jackson v. Virginia to authorize the jury to find him guilty of aggravated child molestation beyond a reasonable doubt.

2. Cwikla argues that the trial court erred in denying his motion to strike a prospective juror for cause. The record shows that at the time of trial, prospective juror Frost was caring for a foster child who had been sexually molested as a five year old by an adult male. When asked if she could put aside her experiences with her foster child in evaluating the evidence, Frost initially replied “I’m really not sure” and that she would probably prefer to sit on another case. However, after a short recess, Frost stated that although sexual abuse was “in our life right now,” she believed that she was without preconceived notions regarding the accused and that she could be fair. Frost told the court that she was certain that she could “sit on this case and give a fair and honest verdict.” Trial counsel’s motion to dismiss Frost for cause was denied by the trial court.

The trial court has broad discretion in evaluating a prospective juror’s impartiality, and its ruling on the matter will not be reversed absent manifest abuse of that discretion. Georgia law holds that “[bjefore a juror can be qualified for cause, it must be shown that an opinion held by the potential juror is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence.” “The fact that a potential juror may have some doubt about her impartiality or complete freedom from all bias does not demand as a matter of law that the juror be excused for cause.”

Based upon the record before us, we find that Frost’s testimony does not show that she had an opinion or bias that would disqualify her as a matter of law under OCGA § 15-12-163. Rather, the record shows that although she was troubled by the emotional aspects of the case involving sexual offenses against a child, she would be able to put her emotions aside and decide the case based on the evidence. Accordingly, we cannot say that the trial court abused its discretion in failing to remove her for cause.

3. Cwikla argues that his counsel rendered ineffective assistance by failing to object to certain assertions regarding the victim’s credibility from Cwikla’s videotaped interview with police. However, Cwikla specifically directed the trial court in his amended notice of appeal to omit any transcript of the motion for new trial hearing despite the fact that he claimed ineffective assistance of counsel in his amended motion for new trial. Therefore, “because there is no transcript on appeal of the hearing on the motion for new trial, we must presume that the trial court was authorized to find that appellant failed to carry his burden to show that he received ineffective assistance of counsel.”

Judgment affirmed.

Dillard and Boggs, JJ., concur.

Decided January 12, 2012.

Sharon L. Hopkins, for appellant.

Garry T. Moss, District Attorney, Cliff Head, Wallace W. Rogers, Jr., Assistant District Attorneys, for appellee.

       (Punctuation and footnote omitted.) Goss v. State, 305 Ga. App. 497 (699 SE2d 819) (2010).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Park v. State, 260 Ga. App. 879, 880 (1) (581 SE2d 393) (2003).

       (Citations omitted.) Johnson v. State, 262 Ga. 652, 653 (2) (424 SE2d 271) (1993); accord Chancey v. State, 256 Ga. 415, 425 (3) (B) (a) (349 SE2d 717) (1986).

       (Citations and punctuation omitted.) Patterson v. State, 233 Ga. App. 776, 777 (3) (505 SE2d 518) (1998).

        Garland v. State, 263 Ga. 495, 497 (1) (435 SE2d 431) (1993).

       (Citation and punctuation omitted.) Hamilton v. State, 281 Ga. 501, 502 (2) (640 SE2d 28) (2007).


text:
    A11A1780.
    WELLS v. THE STATE.
    (722 SE2d 133)
   PHIPPS, Presiding Judge.

William Wells was convicted of giving a false name to a law enforcement officer and of three felony counts of violation of the Georgia Controlled Substances Act. On appeal, Wells contends that the trial court erred by sentencing him as a recidivist. For the reasons that follow, we affirm.

1. Wells acknowledges that the state served him with notice of its intent to seek aggravation of punishment as a recidivist and attached copies of his prior guilty plea convictions to the notice, but argues that the evidence was insufficient to prove the existence of any of the prior convictions because the state did not introduce copies of the prior convictions into evidence during the trial or at the sentencing hearing. Wells further acknowledges that at the sentencing hearing he failed to object (on any grounds) to the trial court’s consideration of the documents.

When the state seeks recidivist punishment based on guilty pleas, in a case not involving the death penalty, it bears the burden of proving (1) the existence of prior guilty pleas and (2) that the defendant was represented by counsel in all felony cases and those misdemeanor proceedings where imprisonment resulted. If the state makes such a showing, “the presumption of regularity” attaches and “the burden shifts to the defendant to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea.”

“No requirement exists under Georgia law which would limit the state to a single means of proving prior convictions of a criminal defendant in order to have the recidivism statute applied to the sentencing of the defendant.” Concerning the conduct of a pre-sentence hearing in felony cases, OCGA § 17-10-2 (a) (1) pertinently provides that “the judge shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or nolo contendere of the accused, or the absence of any prior conviction and pleas.” We have held that when no objection to the form of the evidence of the prior conviction was made at the pre-sentence hearing, the issue was not preserved for review on appeal.

Here, the record shows that the state served Wells with a list of evidence in aggravation of sentencing and specifically invoked the statutory recidivist sentencing provisions. That evidence included three certified copies of prior guilty plea convictions. The transcript shows that at the pre-sentence hearing the judge had copies of the prior convictions and defense counsel never objected to the consideration of any of the listed offenses or argued that the state was required to introduce the prior convictions into evidence. Rather, after the judge reviewed on the record the copies of the prior convictions and asked whether there were “[a]ny comments on that,” defense counsel merely responded that “We were properly served and notified, Your Honor.” An examination of the prior convictions shows that the defendant was represented by counsel in connection with those guilty pleas. Wells failed to rebut the presumption of regularity and failed to object to the form of the evidence of the prior convictions and thus failed to preserve this issue for review on appeal.

Wells recognizes that the current status of the law is against the position he now takes on appeal, and argues that we should “take a second look at the reasoning [of] the holdings in Nash and Thompson [and] overrule those cases and the line of cases with the same holdings regarding the sufficiency of proof in recidivist sentences. ...” But the law is well established on this point. In Nash v. State, the Supreme Court of Georgia revised the scheme regarding the allocation of burdens of proof as to the use of guilty pleas in sentence enhancement in nondeath penalty cases. We point out that “[t]he purpose of [OCGA] § 17-10-2 is to give [a] defendant a chance to examine his record to determine if the convictions are in fact his, if he was represented by counsel, and any other defect which would render such documents inadmissible during the pre-sentencing phase of the trial.” Wells had that opportunity, but failed to show that the evidence was inadmissible. Accordingly, we find no grounds for reversal.

2. Wells further contends that, in the event this court finds the evidence of prior convictions was sufficient, the trial court nonetheless erred by sentencing him as a recidivist because the state failed to show that the crime to which he pled guilty in Alabama would have been a felony in Georgia. We need not address this issue because Wells failed to raise this argument at the sentencing hearing, and thus appellate review is precluded.

Notwithstanding, the records of the Alabama conviction show that Wells pled guilty to the offense of burglary in the third degree and received a sentence of four years imprisonment. Under Georgia law, burglary is a felony and

[a] person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another or any building... or other such structure designed for use as the dwelling of another or enters or remains within any other building ... or any room or any part thereof.

Decided January 12, 2012.

Drummond & Swindle, Jason W Swindle, for appellant.

David McDade, District Attorney, James A. Dooley, Rachel D. Ackley, Assistant District Attorneys, for appellee.

The Alabama indictment charged that Wells “did knowingly enter or remain unlawfully in a building of [M. S.] with intent to commit a crime therein, to-wit: theft. ...” The elements of the crime as charged in the Alabama indictment are similar to the elements required to commit the crime under the Georgia statute. Thus, Wells’s argument presents no basis for reversal.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

       See Freeman v. State, 244 Ga. App. 393, 396 (2) (535 SE2d 349) (2000).

       Id.

        State v. Cain, 253 Ga. App. 100, 101 (558 SE2d 75) (2001) (citation and punctuation omitted) (recidivist treatment authorized where state served defendant with list of evidence in aggravation, even though copies of prior convictions were not introduced).

       Id.; Walker v. State, 204 Ga. App. 269 (419 SE2d 542) (1992) (defendant properly sentenced as a recidivist where at pre-sentence hearing the prosecution stated that the defendant had previously been convicted of burglary but did not tender a certified copy of the prior conviction, and defendant failed to object).

       Although Wells referenced a “sentencing hearing” and a volume of the trial transcript is labeled “Sentencing,” the hearing which took place met the requirements of a pre-sentence hearing pursuant to OCGA § 17-10-2.

       See Cain, supra\ Adams v. State, 142 Ga. App. 252, 255 (7) (235 SE2d 667) (1977) (where no objection to the form of the evidence of the prior conviction is made, subsequent review of that issue is eliminated); see generally Strozier v. State, 231 Ga. 140, 142 (2) (200 SE2d 762) (1973).

       271 Ga. 281 (519 SE2d 893) (1999).

       Id. at 285 (the burden is on the state to prove both the existence of the prior guilty pleas and that the defendant was represented by counsel in all felony cases and those misdemeanor proceedings where imprisonment resulted). This is presumably the Nash case to which Wells refers but provides no citation. See Beck v. State, 283 Ga. 352, 353 (2) (658 SE2d 577) (2008) (stating that the issue of whether prior guilty pleas could be used for recidivist sentencing purposes is “a matter of great significance to the bench and bar,” such that the Court took the “opportunity to reiterate [its] holding in Nash and discuss again the shifting burdens involved in sentencing a defendant as a recidivist”).

        Armstrong v. State, 264 Ga. 237, 238 (2) (442 SE2d 759) (1994) (citation and punctuation omitted).

        Thompson v. State, 266 Ga. App. 29, 33-34 (3) (596 SE2d 205) (2004) (defendant was properly sentenced under the recidivist statute, even though a certified copy of the prior conviction was not entered into evidence); compare State v. Slaton, 294 Ga. App. 507 (669 SE2d 481) (2008) (trial court’s refusal to sentence defendant as a recidivist affirmed where the state claimed during the hearing that it had certified copies of prior convictions, but failed to tender them, and they were not contained in the appellate record).

       See OCGA § 17-10-7 (a) (pertinently providing for enhanced sentencing for “any person convicted of a felony offense in this state or having been convicted under the laws of any other state ... of a crime which if committed within this state would be a felony”).

        Armstrong, supra at 238-239 (2), (3); Cain, supra; Adams, supra; Strozier, supra.

       OCGA §§ 16-1-3 (5) (“Felony” means a crime punishable by death, by imprisonment for life, or by imprisonment for more than 12 months); 16-7-1 (a) (A person convicted of the offense of burglary, for the first such offense, shall be punished by imprisonment for not less than one nor more than twenty years); 16-7-1 (b) (“Upon a second conviction for a crime of burglary occurring after the first conviction, a person shall be punished by imprisonment for not less than two nor more than [twenty] years. Upon a third conviction ... a person shall be punished by imprisonment for not less than five nor more than [twenty] years.”).

       OCGA § 16-7-1 (a).


text:
    A11A1983.
    MUHAMMAD et al. v. ALLSTATE INSURANCE COMPANY.
    (722 SE2d 136)
   MlKELL, Chief Judge.

After Allstate Property and Casualty Insurance Company (“Allstate”) cancelled Ali S. Muhammad’s homeowner’s insurance policy, Muhammad and his wholly-owned corporation, Columbia Hills Management Company, Inc. (“CHMC”) (Muhammad and CHMC sometimes hereinafter referred to as “appellants”), brought the underlying action against Allstate, asserting that the insurance policy was improperly canceled, and seeking specific performance, damages, attorney fees, and costs of litigation. Allstate moved to dismiss the complaint for failure to state a claim under OCGA § 9-11-12 (b) (6). Following a hearing at which all three parties were represented by counsel, the trial court granted Allstate’s motion and dismissed the action with prejudice. Muhammad, acting pro se, and CHMC, acting through counsel, filed a timely notice of appeal. We affirm.

1. We first address whether appellant CHMC has abandoned its appeal. Although CHMC, acting through its counsel, filed a notice of appeal in this Court, it has not filed enumerations of error or an appellate brief, nor has it properly sought any extension of the time for filing the appellate brief. Muhammad, acting pro se, has filed an appellate brief and a reply brief, but these briefs were signed only by Muhammad pro se, not by counsel for CHMC. And even though Muhammad is the sole shareholder of CHMC, as a non-attorney agent he cannot represent CHMC on appeal. “In this state, only a licensed attorney is authorized to represent a corporation in a proceeding in a court of record.” Thus, CHMC’s appeal from the trial court’s judgment is deemed abandoned and is hereby dismissed pursuant to Court of Appeals Rule 23 (a).

We note that, even had CHMC not abandoned its appeal, CHMC has no standing to make a claim under the insurance policy at issue, because CHMC was a stranger to the contract. The insurance policy issued by Allstate on the property was issued to “Ali Muhammad & Rick Muse” as “Named Insured(s).” Nowhere in the record is there any indication that CHMC was an insured under this contract. Under Georgia law, “[t]he insured alone may sue on a policy of insurance.”

2. Because the trial court considered evidence outside appellants’ complaint, Allstate’s motion to dismiss was converted into a motion for summary judgment:

When matters outside the pleadings are considered by the trial court on a motion to dismiss for failure to state a claim, the motion is converted to a motion for summary judgment pursuant to OCGA § 9-11-56, and the trial court has the burden of informing the party opposing the motion that the court will consider matters outside the pleadings and that, if the opposing party so desires, the party has no less than 30 days to submit evidence in response to the motion for summary judgment.

Even if the trial court does not give the required notice, however, “the party opposing the motion may waive the right to the 30-day notice by acquiescing in the movant’s submission of evidence in support of the motion to dismiss.” That is what happened here. Not only did Muhammad fail to object to Allstate’s submission of evidence, he himself submitted evidence in the form of his own affidavit and relied on it at the hearing on Allstate’s motion.

Because Allstate’s motion to dismiss for failure to state a claim was converted by law to a motion for summary judgment, we apply the following standard of review: “Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review the grant of summary judgment de novo, construing the evidence in favor of the nonmovant.”

So viewed, the record reflects that Allstate issued a homeowner’s insurance policy on property at 4933 Wexford Trail in Atlanta, naming Muhammad and another person, Rick Muse, as insureds. On April 21, 2010, Allstate gave Muhammad notice of its intent to cancel the policy as of June 2, 2010, because the loan on the property had been foreclosed and therefore Muhammad no longer had an insurable interest therein. The homeowner’s policy was cancelled, and Muhammad and CHMC filed suit against Allstate. Upon the dismissal of the complaint, Muhammad and CHMC brought this appeal.

Allstate correctly argues that Muhammad never had an insurable interest in the property at issue here. Allstate presented evidence showing the following chain of title: on October 28, 2005, Rick Muse, as grantor, issued a security deed to Long Beach Mortgage Company (the “Lender”); and on March 13, 2006, Rick Muse gave a quitclaim deed to “CHMC, Inc.” On May 5, 2009, the Lender foreclosed on the property at issue and filed a deed under power from Rick Muse on May 28, 2009.

“It is a basic principle that one may only insure property as to which one has an insurable interest.” An “insurable interest is defined in OCGA § 33-24-4 (a) to mean “any actual, lawful, and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage or impairment.” And under subsection (b) of that Code section, “[n]o insurance contract on property or of any interest therein or arising therefrom shall be enforceable except for the benefit of persons having, at the time of the loss, an insurable interest in the things insured.” And mere possession of property, while it might give the possessor certain rights against a trespasser, is not in and of itself sufficient to create an insurable interest.

Decided January 12, 2012.

David A. Colquitt, for appellant.

Carlock, Copeland & Stair, Frederick M. Valz III, for appellee.

In his affidavit, Muhammad avers that title to the property was transferred to “CHMC, Inc.” and Muhammad by the March 13, 2006, quitclaim deed from Rick Muse. However, the copy of the quitclaim deed referenced in and attached to Muhammad’s affidavit shows only “CHMC, Inc.,” as grantee. And the record does not reveal whether the grantee, CHMC, Inc., is the same entity as CHMC; nor does the record show whether Muhammad has any interest in the grantee, CHMC, Inc. Thus, Muhammad has failed to point to specific evidence in the record which would give rise to a triable issue. Accordingly, the trial court did not err in entering summary judgment against Muhammad and in favor of Allstate.

Judgment affirmed.

Dillard and Boggs, JJ., concur.

       In the original complaint and in the appeal to this Court, Allstate was incorrectly named as Allstate Insurance Company.

       Muhammad sought two extensions of time to file his brief, but these motions were not signed on behalf of CHMC by its counsel.

       See Columbus Transmission Co. v. Murry, 277 Ga. App. 243, 244 (1) (626 SE2d 202) (2006) (non-attorney sole shareholder cannot represent corporation in litigation), citing Eckles v. Atlanta Technology Group, Inc., 267 Ga. 801, 805 (2) (485 SE2d 22) (1997) (“Having accepted the benefits of incorporation, a corporation must also accept the burdens, including the need to hire counsel to sue or defend in court”) (citation and punctuation omitted).

       (Citation omitted.) Eckles, supra. Accord Waller v. Rymer, 293 Ga. App. 833, 835 (668 SE2d 470) (2008) (corporate party cannot appear pro se, but must be represented by legal counsel).

       (Citation omitted.) Higdon v. Ga. Farm Bureau Mut. Ins. Co., 204 Ga. App. 192, 194 (419 SE2d 80) (1992). Accord Archer v. Cotton States Mut. Ins. Co., 303 Ga. App. 878, 879 (695 SE2d 329) (2010) (“One other than the person to whom a policy was issued cannot, in his own name, maintain an action thereon, unless the policy has been duly assigned to him in writing”) (citation and punctuation omitted); Cotton States Mut. Ins. Co. v. Haire, 214 Ga. App. 799, 801 (449 SE2d 161) (1994).

       (Citation omitted.) Gaddis v. Chatsworth Health Care Center, 282 Ga. App. 615, 616-617 (1) (639 SE2d 399) (2006), citing Cox Enterprises, Inc. v. Nix, 273 Ga. 152, 153 (538 SE2d 449) (2000).

       (Citation omitted.) Morrell v. Wellstar Health System, 280 Ga. App. 1, 2 (1) (633 SE2d 68) (2006).

       See Cox Enterprises, supra at 153-154; Morrell, supra.

       (Citation and punctuation omitted.) Gaddis, supra at 617 (2).

        Sapp v. Ga. Farm Bureau Mut. Ins. Co., 206 Ga. App. 209, 211 (424 SE2d 871) (1992).

        Splish Splash Waterslides v. Cherokee Ins. Co., 167 Ga. App. 589, 591 (2) (307 SE2d 107) (1983). See also Sapp, supra at 211-212.

       See Sapp, supra at 212-213.

       See OCGA § 9-11-56 (e), which provides in pertinent part:
      . . . When a motion for summary judgment is made and supported as provided in this Code section, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.


text:
    A11A2098.
    POWELL v. THE STATE.
    (722 SE2d 158)
   MlKELL, Chief Judge.

Brenda C. Powell appeals the trial court’s final judgment of forfeiture on a criminal appearance bond posted on behalf of Kenneth Dustin Grant. Because the trial court correctly concluded that Powell had not been relieved of liability as a surety on the bond, we affirm.

“A bond forfeiture occurs at the end of the court day upon the failure of appearance of a principal of any bond or recognizance given for the appearance of that person.” Under OCGA § 17-6-71 (a), the trial court “shall, at the end of the court day, upon the failure of the principal to appear, forfeit the bond and order an execution hearing not sooner than 120 days but not later than 150 days after such failure to appear.” This Code section directs the clerk of court to serve notice of the execution hearing to the surety by certified mail within ten days of the principal’s failure to appear. OCGA § 17-6-71 (a) also provides that “[s]uch ten-day notice shall be adhered to strictly. If notice of the execution hearing is not served as specified in this subsection, the surety shall be relieved of liability on the appearance bond.” Thus, if notice of the execution hearing is not served within ten days of forfeiture of the bond by reason of the principal’s failure to appear, “the surety is released and discharged of any further obligation to ensure the appearance of the principal and of any further liability on the bond.”

In the case before us, the record reflects that, in January 2009, Powell signed as surety on a $56,100 appearance bond for principal Grant, posting her property as collateral. After Grant failed to appear in court for trial on September 20, 2010, the trial court issued a bench warrant and bond forfeiture. Notice of the execution hearing was served upon Powell by the clerk of the court by certified mail; and Powell stipulated that she received this notice on September 22, 2010, well within the ten-day statutory period. Due to a scrivener’s error, however, the execution hearing was mistakenly set for January 13, 2011, a date only 115 days after Grant’s failure to appear on September 20, 2010.

On January 13, 2011, Powell appeared in court with counsel and moved for the forfeiture to be dismissed, on the ground that the hearing had been set earlier than 120 days after Grant’s failure to appear, in contravention of OCGA § 17-6-71 (a). Counsel for the state sought a continuance, explaining that the January 13 hearing date had resulted from an inadvertent miscalculation. Over Powell’s objection, the trial court granted a continuance of the hearing until February 2, 2011, in order to comply with the 120-day minimum statutory period; and state’s counsel immediately hand-delivered to Powell notice of the new execution hearing date. At the subsequent execution hearing held February 2, 2011, the trial court granted the bond forfeiture, again over Powell’s objection. This appeal followed.

Powell contends that the first notice, which she received within the ten-day statutory period, did not comply with OCGA § 17-6-71 (a) because, though timely, it did not provide for an execution date within the time frame set forth in the statute; and she further contends that the second notice, which she received on January 13, 2011, was ineffective because not served upon her within the ten-day period following Grant’s failure to appear on September 20, 2010. This argument is without merit.

It is true that the statute provides that the “ten-day notice shall be adhered to strictly.” In the case before us, it is undisputed that Powell received notice of the execution hearing within the statutory time period. Further, the execution hearing must take place within a window of 120 to 150 days after the principal’s failure to appear. It is undisputed that the execution hearing in this case took place within that window, on February 2, 2011. That the state sought and obtained a continuance from the originally-scheduled date for the execution hearing does not magically render the original notice invalid. And the original notice being valid, it is also not later invalidated by a subsequent notice of a new hearing date.

Powell’s argument would lead to the absurd result that the state could never seek a continuance of an execution hearing, because notice of the new hearing date would not fall within the ten-day period after the principal’s failure to appear and would therefore be invalid. This absurd result is not required by the language of the statute. As this Court stated in another case interpreting OCGA § 17-6-71 (a), “[w]e do not give an absurd construction to a statute.”

Decided January 12, 2012.

Fox, Chandler, Homans, Hicks & McKinnon, Theodore G. Cas-sert, for appellant.

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

The trial court did not err in granting the bond forfeiture.

Judgment affirmed.

Dillard and Boggs, JJ., concur.

       OCGA § 17-6-70 (a).

        Don Johnson Bonding Co. v. State ofGa., 309 Ga. App. 6, 8 (709 SE2d 50) (2011), citing Northeast Atlanta Bonding Co. v. State ofGa., 308 Ga. App. 573, 578 (1) (707 SE2d 921) (2011). Accord A. A. Professional Bail v. Perdue, 306 Ga. App. 72, 74 (1), (2) (701 SE2d 542) (2010) (where notice of forfeiture hearing on appearance bond was not given until 21 days after principal’s failure to appear, notice was insufficient and surety was relieved from liability on bond).

       Powell is Grant’s mother.

       OCGA § 17-6-71 (a).

       Id.

        Don Johnson Bonding Co., supra at 7 (“where the literal text of a statute is plain and does not lead to absurd or impracticable consequences, we apply the statute as written without further inquiry”) (footnote omitted).

        Northeast Atlanta Bonding Co., supra.

       (Citation omitted.) Id. at 582 (2).


text:
    A11A2178.
    TUCKER v. THE STATE.
    (722 SE2d 139)
   MlKELL, Chief Judge.

Antron Adon Tucker, convicted by a jury of one count of the sale of Ecstacy and one count of possession of cocaine with the intent to distribute, appeals from the denial of his amended motion for new trial, contending that his trial counsel rendered ineffective assistance by failing to object to several portions of the state’s opening and closing arguments.

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

So viewed, the evidence was that, around 9:00 p.m. on August 11, 2006, DeKalb County Police were conducting undercover operations at the intersection of Candler Road and Ember Drive due to recent complaints of narcotics activity in the area. Officer C. S. Baxter was working undercover in an unmarked car and saw a man, later identified as co-defendant Emanuel Berry, standing in the parking lot of the Big Man Package Store next to the ChitChat Lounge. Baxter told Berry she was looking for a man known as “Black” so she could buy some skittles, street slang for Ecstasy. Berry told Baxter that he did not have pills on him, but he could call somebody out. Baxter heard Berry call someone on his. cell phone and say he needed four Ecstasy pills and “more of the usual.” Baxter was backed into a parking space in the package store parking lot and waited approximately ten minutes before she saw a white truck pull in two spaces over from her. Tucker was driving the truck and co-defendant Roderick Glass was in the passenger seat. Baxter then handed Berry three $20 bills, which had been photocopied earlier. Baxter observed Berry hand the money to Tucker. She then saw Tucker hand Berry something in one hand and then put little white rocks in little baggies into Berry’s other hand. Berry then walked to Baxter and placed the Ecstasy pills into her hand.

Sergeant D. A. Thomas was part of the surveillance and take-down team that followed and stopped the truck. The truck had pulled into and circled the parking lot of the Sunset Lodge and was blocked by officers as it was coming out. Tucker was taken out of the driver’s side of the truck and searched by Thomas, who found two of the photocopied $20 bills in Tucker’s right front pocket. Another officer found three plastic baggies containing crack cocaine between the driver’s floorboard and the driver’s door of the truck. Glass, who was in the passenger’s seat, was searched and almost $3,000 in cash was found on him.

The evidence was legally sufficient.

In four of his five enumerations of error, Tucker contends that his trial counsel rendered ineffective assistance by failing to object to four specific arguments made by the prosecutor during opening and closing arguments.

To prevail on this issue, Tucker
must show that counsel’s performance was deficient and that, but for that deficient performance, there is a reasonable probability that the outcome of his trial would have been different. In evaluating the first prong of this test, a strong presumption exists that counsel’s conduct falls within the broad range of professional conduct. Failure to satisfy either component of this test is fatal to an ineffectiveness claim. Moreover, the court need not address both components if the defendant has made an insufficient showing on one of them. On appellate review of the trial court’s ruling, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

In order to prevail on this issue, Tucker must show that no reasonable attorney would have failed to object to the State’s opening and closing arguments and that, had his attorney properly objected, Tucker would have been entitled to a mistrial or would not have been convicted.

1. In his first enumeration, Tucker argues that trial counsel was ineffective for failing to object when the prosecutor shifted the burden of proof onto Tucker by asking the jury during closing argument why he did not present a certain witness and by speculating as to that witness’s testimony.

(a) During the State’s closing argument the prosecutor argued that Tucker’s Aunt Gloria, whom he did not call as a witness, could have corroborated his testimony that he did not have a car and that the truck belonged to co-defendant Roderick Glass. Tucker contends that this was improper “burden shifting” and that there was no foundation showing that Aunt Gloria had knowledge of any facts relevant to the case.

Tucker testified and contended that his co-defendants Berry and Glass were responsible for the drugs and that the white truck he was driving belonged to Glass, his brother-in-law. Tucker said he was only driving the truck because Glass did not have a driver’s license and Glass had asked him to drive him to pick up his children. On the way, Tucker decided to go by Berry’s location at the ChitChat Lounge to pick up $50 that Berry owed him. Tucker said the Ecstacy pills belonged to Berry and the cocaine belonged to Glass.

Tucker further testified that he lived with his “Auntie” Gloria and that she was home when Glass arrived in the white truck. He also testified that her vehicle was not available to Tucker because it was always being used by her son and daughter. Had she been called, Aunt Gloria could have verified these facts.

“[T]he prosecutor can argue to the jury the inferences to be drawn from the defendant’s failure to produce witnesses, who are competent to testify and who allegedly would give evidence favorable to the defendant.” Aunt Gloria was such a witness.

Trial counsel testified at the motion for new trial hearing that she “did not see a legal basis” for objection, and we agree that there was none.

(b) Tucker also claims trial counsel should have objected when the prosecutor commented

upon the defense counsel’s failure to call Mr. Glass as a witness [when] the prosecutor said “it is not unusual for the D.A.’s office to dismiss a case if someone comes forward and says no, those are my drugs, they are not Antron Tucker’s .... It happens and it happens often. We do dismiss cases when people come forward.”

Tucker argues that this argument was “burden shifting” and the prosecutor “improperly invoked her prosecutorial experience and facts not in evidence.”

Tucker’s brief, however, omits the salient fact that, during his trial counsel’s closing argument, she said:

A couple of other things that I anticipate the State to make a big deal out [sic]. Where is Mr. Berry and where is Mr. Glass? You know, the other people who were arrested. And as much as I would love to have them here, as much as I would love to have them come in and say no, Mr. Tucker didn’t do anything, the drugs are all mine, all the drugs are mine, mine, mine, ladies and gentlemen, I have been doing this a long time and I am always surprised when a codefen-dant comes in and says yes, those drugs are mine, they don’t belong to anybody else. It would be nice if people did it that way. It would be nice if they took responsibility for what happened. But in reality they don’t.

In her final closing argument, the prosecutor responded:

They talk about the other codefendants. When I asked, well, why aren’t they here? Well it is not unreasonable for them to have been here. ... I mean I have not been doing this as long as [defense counsel] has been doing it, but it is not unusual for the D.A.’s office to dismiss a case if someone comes forward and says no, those are my drugs, they are not Antron Tucker’s, those were not his drugs. That is not unusual. It happens and it happens often. We do dismiss cases when people come forward. But that is not what happened here. The other two codefendants took responsibility, they pled and they were sentenced. And they could have come here, they could have testified and come here and said something else. But you didn’t hear that from them.

“Closing arguments are judged in the context in which they are made.” It is apparent that the prosecutor was directly responding to the argument previously made by defense counsel, and there was no error in her doing so.

Tucker has failed to show that defense counsel’s failure to object to the argument precipitated by a portion of her own closing was ineffective assistance.

2. Tucker’s second enumeration is that trial counsel erred by failing to object when the prosecutor impermissibly vouched for the veracity of the State’s witnesses and Tucker’s guilt.

Although Tucker isolates several statements which he contends should have elicited objections from his trial counsel, these statements cannot be considered in isolation. They are italicized and are set out below in context:

i. Now, the main thing that you need to know is that the detectives here and the police officers, they weren’t trying to make up this story, they weren’t trying to say that Antron Tucker got outside of the car, went to the officer’s window and handed her the drugs. They were very — They were very honest. She [Baxter] told you exactly what happened. She said that one of the codefendants was outside. He gave the money to Antron Tucker. Antron Tucker stayed in the car and gave her [sic] the drugs. They didn’t try to make anything up.
ii. It seems like [defense counsel] wants you to believe some of the [police] report. She wants you to believe the part where the other two codefendants sold the drugs and were found guilty. But she doesn’t want you to believe anything that was said about Antron Tucker. I submit to you that you should believe everything that these officers told you because these officers did not make anything up.
iii. We know a crime was committed, because Detective Baxter told you that Antron Tucker sold those drugs.
iv. She [defense counsel] said he did not sell those drugs because he didn’t have any drugs on him. I submit to you he didn’t have any drugs on him because he sold them to the officer. And not only that, I am pretty sure that Mr. Tucker knows the rules. He knows not to carry a bunch of stuff on him. He said he wasn’t that far away from his aunt’s house where he supposedly lived. He knows that he woúldn’t just have a massive amount of drugs on him riding down Candler Road. He only brought the amount he was told to bring.
vi. The aunt could have answered a lot of questions, but instead we are left with a bogus story.
vii. Mr. Tucker’s excuse of what happened is as bad as a kid saying the dog ate my homework. It just does not fly. I submit to you that you guys don’t fall for this. And I ask that you find him guilty. Thank you.
As a general rule, prosecutors are granted wide latitude in conducting closing argument, and defining the bounds of such argument is within the trial court’s discretion. This wide latitude encompasses the prosecutor’s ability to argue reasonable inferences raised by the evidence. Accordingly, it is proper for a prosecutor to urge the jury to draw inferences from the evidence regarding the credibility of witnesses. Reviewing the prosecutor’s closing argument as a whole, and as a response to the defense, we find no improper argument regarding witness veracity.

Trial counsel for Tucker testified during the hearing on the motion for new trial that she saw no legal basis for the objections that Tucker urged in his motion for new trial.

We agree with trial counsel and the trial court that each of the complained of comments by the prosecutor was supported by eviden-tiary reference and there was no error in her urging the jury to find that a witness was telling them the truth.

3. In his third enumeration, Tucker argues that trial counsel rendered ineffective assistance by failing to object to the prosecutor’s “golden rule” argument.

“A ‘golden rule’ argument directly or indirectly tells the jurors that they should put themselves in the injured person’s place and render a verdict that they would wish to receive in the injured person’s position.”

The objected to statement is italicized in context from the prosecutor’s closing argument:

This is not an innocent man that happened to be in the wrong place at the wrong time. It was the right man at the right time. He got caught. He got caught in your county trying to sell drugs. He just sold it to an undercover officer. Now, you have to ask yourself do you care. I submit to you that you do care because it is your county, and at the end of the day what is going to be left is it is going to be your family members who are going to be strung out on drugs. People like Antron Tucker are poison pushers.

“Appeals to convict for the safety of the community have been upheld. Moreover, the State may argue to the jury the necessity for enforcement of the law and may impress on the jury, with considerable latitude in imagery and illustration, its responsibility in this regard.”

Again, there was no error in the trial court’s denial of the motion for new trial on this basis.

4. Tucker’s fourth enumeration asserts that trial counsel provided ineffective assistance by failing to object when the prosecutor, in her opening statement, told the jury that co-defendants Berry and Glass “have pled and have been sentenced.”

Regarding her decision not to object to this, trial counsel testified at the motion for new trial hearing that “[i]f the drugs were not found particularly on my client and if the codefendants are arrested at the same time and had entered a guilty plea, that does not impact on my client’s guilt or innocence to that particular incident. ... I would want them to be guilty.”

This was clearly a matter of trial strategy by trial counsel which fell within the bounds of reasonable professional conduct.

There was no error in denying the motion for new trial on this ground.

5. Because we have found none of the above enumerated errors to constitute ineffective assistance of counsel, we need not consider the second prong, i.e., but for the deficient performance of counsel, there is a reasonable probability that the outcome of the trial would have been different.

6. Finally, Tucker argues that the trial court erred in finding that it did not have a sua sponte duty to intervene and prevent the prosecutor’s statement regarding the codefendants’ pleas of guilty, pursuant to OCGA § 17-8-75.

Decided January 12, 2012.

King & Spalding, Ryan W. Babcock, for appellant.

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

As discussed in Division 4, supra, trial counsel’s strategy was to blame the codefendants and, in her opinion, this portion of the prosecutor’s argument was supportive of her trial strategy.

Further, as recently reiterated by our Supreme Court, this statute

unambiguously indicates that where, as here, a prosecutor has made “statements [to the jury] of prejudicial matters which are not in evidence,” and where a proper objection has been raised, “the court shall . . . rebuke the counsel [who made the inappropriate statements] and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds.”

Therefore, the trial court correctly concluded that, no objection having been made by trial counsel, any alleged error had been waived.

Judgment affirmed.

Dillard and Boggs, JJ., concur.

       Specified in the indictment as “3, 4 methylenedioxymethamphetamine.”

        Al-Amin v. State, 278 Ga. 74 (1) (597 SE2d 332) (2004).

       Id., citing Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       Baxter knew no such individual, but used this as a ploy to begin conversation.

       The final $20 was not found, but Berry was not arrested until weeks after the buy.

        Al-Amin v. State, supra.

       (Punctuation and footnotes omitted.) Strickland v. State, 311 Ga. App. 400, 402 (2) (715 SE2d 798) (2011).

        Hayes v. State, 279 Ga. 642, 645 (3) (619 SE2d 628) (2005).

       (Citations omitted.) Shirley v. State, 245 Ga. 616, 618 (1) (266 SE2d 218) (1980).

        Adams v. State, 283 Ga. 298, 302 (3) (e) (658 SE2d 627) (2008).

       Cf. Manley v. State, 284 Ga. 840, 844-845 (2) (b) (672 SE2d 654) (2009).

       (Citations and punctuation omitted; emphasis supplied.) Brown v. State, 293 Ga. App. 633, 637-638 (1) (d) (ii) (667 SE2d 899) (2008).

        Wright v. State, 284 Ga. 406, 407 (2) (667 SE2d 611) (2008).

       (Citation omitted.) Futch v. State, 286 Ga. 378, 382 (2) (c) (687 SE2d 805) (2010).

       Again, trial counsel testified that she saw no legal basis upon which to object to this argument.

       (Citations and punctuation omitted.) Bowen v. State, 203 Ga. App. 371, 374 (5) (417 SE2d 18) (1992). Accord Byers v. State, 276 Ga. App. 295, 297 (3) (623 SE2d 157) (2005); Shaw v. State, 265 Ga. App. 451, 454 (4) (594 SE2d 393) (2004).

        See Lawrence v. State, 274 Ga. 794, 795 (3) (560 SE2d 17) (2002); Watts v. State, 304 Ga. App. 632, 635 (697 SE2d 272) (2010).

        Strickland v. State, supra.

       “Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. . . .”

       (Emphasis in original.) O’Neal v. State, 288 Ga. 219, 221 (1) (702 SE2d 288) (2010).

       Id.


text:
    A11A2236.
    SIMS v. THE STATE.
    (722 SE2d 145)
   PHIPPS, Presiding Judge.

Kenneth Sims was convicted of cocaine trafficking after the drug was found during a search of his car, which had been stopped by police. Challenging his conviction, Sims contends that the trial court erred by denying his motion to suppress the drug evidence. We affirm.

In Tate v. State, the Supreme Court of Georgia discussed three fundamental principles which must be followed when conducting an appellate review of an order ruling upon a motion to suppress.

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his 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 court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

So construed, the evidence showed the following. At about 11:00 p.m. on March 16, 2009, a law enforcement officer stationed alongside an interstate so as to monitor traffic observed a passing vehicle that reduced its speed so quickly that it caused “the hood of the car to bow down.” There were vehicles in front, behind, and to the side of the car. The officer merged into traffic to follow the car, and the driver of the car continued to slow its pace to the point that a “semi-truck that was behind him, had to switch lanes ... to avoid hitting him in the rear end.” The car crossed the dotted line that delineated the travel lanes, then the car’s driver “corrected his path.” Next, after a signal to move out of its travel lane — “the blinker blinked one time” — the car slipped “directly in front of another semi-truck,” which left only about “a car length” between it and that truck. The officer determined that the driver of the car had not given the truck driver sufficient notice of the lane change, such that the maneuver was unsafe. In light of the above observations, the officer initiated a traffic stop to, inter alia, check for driver sobriety.

About a mile down the highway, the car stopped. When the officer approached the vehicle, he immediately detected a “very rich strong odor of air freshener coming from out of the vehicle.” The officer testified that, “the extended time it took” for the vehicle to stop, together with “the abundance of air freshener in the vehicle,” aroused his suspicion that the occupants were trying to mask the odor of alcohol or contraband. Sims was the driver, and traveling with him were a woman and child.

The officer asked Sims to provide his driver’s license and to step outside the car; Sims complied. Noting that Sims’s eyes seemed “bloodshot and watery,” the officer explained to Sims the reason for the stop; the officer further asked Sims about his travel itinerary and whether he had been smoking marijuana because, as the officer testified, he was “trying to figure out whether [Sims] was under the influence or whether he was sleepy, how long had he been on the road and how much further did he have to go.” Sims answered the questions, including denying that he had been smoking marijuana.

Having decided not to pursue roadside sobriety testing, the officer began writing Sims a warning citation. While writing the citation, the officer asked Sims whether he could ask him additional questions; Sims said yes. The officer asked Sims whether he had in the car narcotics or other contraband; Sims answered no to each question. Meanwhile, the officer completed the citation, and as Sims was signing it, the officer asked Sims for his consent to search the vehicle. Sims gave his consent. The officer handed Sims the citation, along with his license. As Sims moved toward his car, the officer asked Sims again for his consent to search the car; Sims again gave his consent. According to the officer, checking Sims’s license, asking him questions, and writing the citation had taken “a couple of minutes.”

The officer went to the passenger side of the car and, upon reaching the window, detected the odor of marijuana coming from inside the car. He asked the passengers to step outside the vehicle. After they complied, the officer searched Sims’s car, finding therein not only marijuana, but a trafficking amount of cocaine.

The prosecutor argued to the trial court that the traffic stop was authorized by probable cause, pointing to evidence that Sims’s lane change had been unsafe; and that consent to search Sims’s car had been obtained during the course of writing the citation, then again immediately after the citation and Sims’s license were handed to him. In ruling in favor of the state, the trial court determined that there was probable cause for the stop, and that the officer received consent to search.

In this appeal, Sims concedes that the officer was authorized to stop his car. And Sims does not dispute that he twice gave his consent to the search. He argues that his consent was nevertheless invalid, asserting that it was obtained during an illegal seizure on the ground that the traffic stop had been unlawfully prolonged.

“Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning of [the Fourth Amendment].”

Because a routine traffic stop, even one based on probable cause of a traffic code violation, is a type of seizure more akin to an investigative stop under Terry v. Ohio, than a formal arrest, we apply the principles of Terry when analyzing the Fourth Amendment requirement that the scope and duration of the investigation conducted during a valid stop must be reasonable under the circumstances.

“The officer’s purpose in an ordinary traffic stop is to enforce the laws of the roadway, and ordinarily to investigate the manner of driving with the intent to issue a citation or warning.”

In determining whether the length of this detention was within the brief investigative period authorized by Terry, we consider “whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.”

While not contested here, the trial court was authorized to conclude that the police stop of Sims’s car was justified. And Sims has failed to show that the detention thereafter became unlawful such that his consent was ineffective. Given the officer’s observations of Sims’s manner of driving, the officer was authorized to procure Sims’s license and use it to check into whether Sims was entitled to continue operating his vehicle. The officer was also authorized to ask Sims to step outside his car; “ordering [Sims] from the car was an extension of the constitutionally valid detention resulting from the traffic stop.” The officer did not impermissibly extend the stop with the brief questioning that occurred before he began writing the citation, as such inquiry was reasonably tailored to investigate whether Sims’s driving maneuvers were the product of driving under the influence. And once the officer then began writing the citation, the additional questioning did not impermissi-bly prolong the stop.

Decided January 12, 2012.

Brunt & Hood, Jason B Hood, for appellant.

Where, as here, “a driver is questioned and gives consent while he is being lawfully detained during a traffic stop, there is no Fourth Amendment violation.” “Once consent is legally obtained, it continues until it is either revoked or withdrawn”; the evidence did not show, and Sims does not assert, that he revoked or withdrew his initial consent. And “since the [second] request to search occurred almost contemporaneously with the conclusion of the traffic stop, it did not unreasonably prolong the stop.”

Sims has failed to establish that his consent was invalid as obtained during an illegal seizure on the ground that the traffic stop had been unlawfully extended. Therefore, he has not shown error in the denial of his motion to suppress the drug evidence found during the search of his vehicle.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

       264 Ga. 53 (440 SE2d 646) (1994).

       See generally Miller v. State, 288 Ga. 286-289 (1) (702 SE2d 888) (2010) (reaffirming Tate, supra).

        Tate, supra at 54 (1) (citations, punctuation and footnote omitted).

        Whren v. United States, 517 U. S. 806, 809-810 (II) (116 SC 1769, 135 LE2d 89) (1996).

       392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

        State v. Williams, 264 Ga. App. 199, 201 (590 SE2d 151) (2003) (citation omitted).

         Salmerón v. State, 280 Ga. 735, 736 (1) (632 SE2d 645) (2006) (citation and punctuation omitted).

        Boyd v. State, 300 Ga. App. 455, 458 (1) (685 SE2d 319) (2009), quoting United States v. Sharpe, 470 U. S. 675, 686 (II) (B) (105 SC 1568, 84 LE2d 605) (1985).

       See Whren, supra at 810 (II) (“As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.”) (citation omitted); OCGA § 40-6-123 (concerning turning movements and required signaling); Barrow v. State, 269 Ga. App. 635, 637 (2) (605 SE2d 67) (2004) (police officer was justified in making traffic stop, where officer suspected that defendant was driving under influence after he braked so suddenly upon passing the patrol car that the front of his vehicle dipped, defendant changed lanes in medium traffic without signaling, and turn signal was needed for safety).

       See generally Becoats v. State, 301 Ga. App. 768, 770 (688 SE2d 686) (2009) (“It does not unreasonably expand the scope or duration of a valid traffic stop for an officer to prolong the stop to immediately investigate and determine if the driver is entitled to continue to operate the vehicle by checking the status of the driver’s license, insurance, and vehicle registration.”) (punctuation and footnote omitted).

        Salmerón, supra (once a motor vehicle has been lawfully detained for a traffic violation, police officer may order driver out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures); Rosas v. State, 276 Ga. App. 513, 518 (1) (c) (624 SE2d 142) (2005) (out of concern for safety, an officer making a traffic stop may order driver and any passengers out of vehicle).

        Salmerón, supra at 737 (1).

       See Williams, supra at 202 (under Terry, supra, an officer’s actions taken during valid traffic stop must be reasonably related in scope to circumstances which justified stop in first place, and limited in duration to the time reasonably necessary to accomplish purpose of stop); Ivey v. State, 301 Ga. App. 796, 798 (689 SE2d 100) (2009) (weaving, both out of one’s lane and within one’s own lane, particularly when combined with other factors, may give rise to reasonable articulable suspicion on the part of a trained law enforcement officer that the driver is violating the DUI laws).

        Salmerón, supra at 736, 738 (1) (mere police questioning does not constitute a seizure; unless the detention was prolonged by the questioning there is no additional seizure within the meaning of the Fourth Amendment; dispositive factor was not the nature or subject of officer’s questions, but whether questioning took place during an otherwise lawful detention for committing traffic violations in the officer’s presence).

       Id. at 736 (1) (citation omitted).

        Wilson v. State, 308 Ga. App. 383, 385 (2) (b) (708 SE2d 14) (2011) (citations omitted).

        Davis v. State, 306 Ga. App. 185, 187 (1) (702 SE2d 14) (2010) (citations omitted).

       See Salmerón, supra.

       See Blitch v. State, 281 Ga. 125-126 (1) (636 SE2d 545) (2006); Salmerón, supra.