author: MCFADDEN, Judge.

text:
    A11A2421.
    CHRISTOPHER v. THE STATE.
    (726 SE2d 411)
   MCFADDEN, Judge.

Virgil Christopher appeals his aggravated assault conviction. He argues that trial counsel was ineffective, primarily for failing to make several objections to the state’s closing argument. Christopher has not shown both that counsel’s performance was deficient and that there is a reasonable probability that any deficiency changed the outcome of the trial. We therefore affirm Christopher’s conviction.

Construed to support the verdict, the evidence shows that after Christopher and his girlfriend, Coleshia Jones, argued, he took a red Chevrolet Impala she had rented. When they met later on so that Christopher could return the car, they argued again; Jones kicked Christopher, and he hit her in the eye. He apologized, and they went to lunch. During the drive to the restaurant, Jones saw that Christopher had a gun.

Jones’s brother and cousins, including the victim, Eli Jones, were angry that Christopher had hit Jones. They urged her to press charges, but she refused. That afternoon, the brother and cousins, along with a friend, were driving around and saw Christopher; all but one of them got out of the vehicle and confronted Christopher. Christopher pulled out his gun, and the men left.

Later that day, Christopher and Rongee Reese were driving down the road in front of Jones’s house in the Impala, which Jones again had given to Christopher. Eli Jones was in a nearby yard, and the brother, other cousins, and their friend were in the vicinity. Eli Jones approached the Impala, and he and Christopher began arguing. Eli Jones, who was unarmed, tried to open the car door. Reese shot Eli Jones in the stomach, and Christopher shot Eli Jones in the chest. People began shooting at the Impala. At least one round entered the Impala from the exterior and struck Christopher in the back. The Impala drove off. Eli Jones died of his wounds.

Christopher was charged with malice murder, felony murder, aggravated assault, and possession of cocaine. A jury found him guilty solely of the aggravated assault. The trial court denied his motion for new trial, and he filed this appeal, arguing that he received the ineffective assistance of trial counsel.

Under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984),

[t]o 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. If an appellant fails to meet his or her burden of proving either prong of the Strickland test, it is not incumbent upon the reviewing court to examine the other prong.

(Citations omitted.) Battles v. State, 290 Ga. 226, 229 (2) (719 SE2d 423) (2011).We accept the trial court’s !

factual findings and credibility determinations unless they are clearly erroneous, and we independently apply the legal principles to these facts, keeping in mind the strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance.

Id. at 229-230 (2). “Trial counsel are strongly presumed to have performed adequately; therefore, [an appellant] bears the burden to prove otherwise.” (Punctuation omitted.) Humphrey v. Morrow, 289 Ga. 864, 866 (II) (717 SE2d 168) (2011).

1. Christopher argues that trial counsel was deficient for failing to object to the state’s “golden rule” arguments.

A golden rule argument is one which, either directly or by implication, tells the jurors that they should put themselves in the injured person’s place and render such a verdict as they would wish to receive were they in the injured person’s position. Such an argument is impermissible because it encourages the jurors to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence.

(Citation and punctuation omitted.) Jackson v. State, 282 Ga. 494, 499 (5) (651 SE2d 702) (2007).

(a) The first instance to which Christopher contends trial counsel should have objected occurred when the prosecutor said in her closing argument, “Can you imagine as Eli is approaching that car and he can’t get in the front seat or the front door, and he goes to the back and he sees those guns. What do you do?” She went on to state, “He backed up. Several witnesses said he backed up. You would put your hands up.”

At the motion for new trial hearing, trial counsel explained that he did not object because “either it went by quick enough or I didn’t want to call emphasis to it.” He conceded that he “could have missed it,” and that he should have objected. But

[t]he prosecutor’s comments did not ask the jurors to render the verdict that they would wish to receive in the injured person’s position. [Further, e]ven assuming ar-guendo [ ] that the comments amounted to a golden rule argument, and therefore, that trial counsel was deficient [for failing to object, Christopher] cannot meet his burden of demonstrating prejudice.

(Punctuation omitted.) Futch v. State, 286 Ga. 378, 383 (2) (c) (687 SE2d 805) (2010) (prosecutor apologized for pointing shotgun in jury’s direction, explaining, “But you know what it made me think about? How [the victims] must have felt when he had that gun and swung it at them, the sense of fear that they felt with that 12-gauge pump action shotgun pointing directly at them.”).

Christopher admits that he was at the scene of the shooting, that he was driving the car, and that a gun was fired from the car. Although he contends that they lacked credibility, four eyewitnesses testified that Christopher shot Eli Jones. Given this evidence, Christopher has not shown that there is a reasonable probability that the failure to object changed the outcome of the trial.

(b) The second comment that Christopher contends violated the proscription against golden rule arguments occurred when the prosecutor was addressing discrepancies in the witnesses’ testimony about where people were standing when the shooting occurred. After acknowledging that such testimony was “all over the place,” the prosecutor stated that, “I am going to ask if you will think about this in a personal context, something that has happened to you in your lifetime[.]” She then went on to state that, “I suggest to you that these folks more than a year later after seeing their brother and their cousin shot down, shot in the stomach, shot in the chest, falling to the ground, don’t know who was standing where nor do they probably care.”

This was not a golden rule argument because it did not ask the jurors to place themselves in the victim’s position at all; rather, it was an attempt to explain the reason for the discrepancies in the testimony of the eyewitnesses to the shooting. Hayes v. State, 236 Ga. App. 617, 619 (3) (512 SE2d 294) (1999) (counsel’s argument asking the jurors to put themselves in the place of a witness was not an impermissible golden rule argument). “Because the [s]tate may argue the inferences it wishes the jury to draw from the record, the statement was not improper and trial counsel was not deficient in failing to object.” Hunt v. State, 279 Ga. 3, 6 (4) (b) (608 SE2d 616) (2005).

2. Christopher alleges that trial counsel was deficient for failing to object when the prosecutor injected her opinion about the veracity of the state’s witnesses in closing argument. Specifically, Christopher contends that trial counsel should have objected to the prosecutor’s statement that, “I don’t think any of [the state’s witnesses] purposely tried to lie to you about [who was standing where during the shooting]; they just don’t know. They don’t remember.” Trial counsel testified that he did not believe that this was objectionable because this was not an emphatic statement of the prosecutor’s opinion.

Contrary to Christopher’s argument, this does not constitute the prosecutor’s personal opinion regarding the veracity of the witnesses. Jackson v. State, 281 Ga. 705, 708 (6) (642 SE2d 656) (2007) (“A prosecutor’s use of phrases such as ‘I think’ and ‘I know’ does not amount to an impermissible statement of personal opinion.”). See also Allen v. State, 277 Ga. 502, 504 (3) (d) (591 SE2d 784) (2004) (in response to defendant’s testimony that eyewitness had lied, prosecutor’s statement that eyewitness had no reason to lie did not constitute the prosecutor’s personal opinion regarding witness’s veracity). “Counsel may address during closing argument the possible motives for a witness’s testimony. Defense counsel’s performance was not deficient for failing to object to the prosecutor’s argument.” (Citation omitted.) Id.

3. Christopher alleges that trial counsel was deficient for failing to object when, during closing argument, the prosecutor referred to facts not in evidence. He focuses on three comments. First, he argues that counsel should have objected to the prosecutor’s statement, “[I]t wasn’t the first time [Christopher] had beat [Coleshia Jones] up.” He argues that no evidence was produced that Christopher had ever hit Coleshia Jones before.

The second comment was when the prosecutor stated, “Now according to the defendant’s statement and some other hearsay statements that came in, Virgil Christopher was hit in the face. There is no evidence in this case that Virgil Christopher was hit in the face.” Christopher argues that Coleshia Jones herself testified that she kicked Christopher in the face.

The final comment occurred when the prosecutor stated that a particular witness, “another one who falls apart as soon as she looks at this guy, told the agent that she had seen a gun also. Now, she changed her story on the stand and said no, that wasn’t true, but that is what she told the GBI agent.” Christopher argues that no evidence was admitted that the witness had made such a prior inconsistent statement.

Regarding these comments, trial counsel testified that generally, he does not object during the prosecutor’s closing argument because the jurors

may get a bad opinion about it and that may hurt your client. . . . And a lot of things you let slide because by the time you could get up and make an objection, they may be on to another point and then you are also going to draw emphasis to something that you may not want to and so it’s obviously a strategy decision. . . .

He also acknowledged that attorneys have wide latitude to draw inferences, and he may look at something one way while the prosecutor may look at it another way. He testified that he should have objected to the first and third comments, but the second comment — that no evidence showed Christopher had been hit when, in fact, testimony proved that he had been kicked — was not objectionable, as the difference between “kick” and “hit” was “semantics.” Counsel did, in fact, make two objections on the ground that the prosecutor made other comments not supported by the evidence.

That trial counsel now believes that he should have [made the two objections] does not mean that his representation fell outside of the broad range of reasonable professional conduct. A claim of ineffective assistance of counsel is judged by whether counsel rendered reasonably effective assistance, not by a standard of errorless counsel or by hindsight. Viewed without the distorting effects of hindsight, trial counsel’s conduct was reasonable in this case.

(Citations and punctuation omitted.) Cammer v. Walker, 290 Ga. 251, 255 (1) (719 SE2d 437) (2011). “[T]he making of objections falls within the realm of trial tactics and strategy and thus usually provides no basis for reversal of a conviction.” (Citation and punctuation omitted.) Moon v. State, 288 Ga. 508, 516 (9) (705 SE2d 649) (2011). “What is more, [Christopher] fails to make any showing that the prosecutor’s statements were made in bad faith, and the jury was properly charged that opening statements and closing arguments by the attorneys were not evidence.” (Citations omitted.) Smith v. State, 282 Ga. 388, 389-390 (2) (651 SE2d 28) (2007). Counsel’s failure to make these objections was not deficient, and even if it were, it was not prejudicial.

4. Christopher argues that counsel was deficient for failing to impeach Kourtney Coley, a cousin of Coleshia Jones and Eli Jones, with his first-offender disposition on a drive-by shooting charge. Trial counsel testified at the motion for new trial hearing that he did not think he could show bias or prejudice because there was no indication that the first-offender disposition was in jeopardy, and therefore there was no reason for Coley to testify in a manner to help the state. “[Wjhile evidence about the plea was inadmissible for impeachment purposes, it was admissible to show potential bias in favor of the [s]tate while the victim was still on probation under that plea.” Strong v. State, 308 Ga. App. 558, 561-562 (707 SE2d 914) (2011). However, any deficiency in failing to show Coley’s potential bias did not affect the outcome of the trial. Coley testified that he saw the red Impala coming down the street and that Christopher was driving. He testified that Eli Jones approached the car and told Christopher to stay away from Coleshia Jones. He testified that Eli Jones tried to open the car door and that he was unarmed. He testified that a shot was fired from the car. He could not tell whether Christopher or Rongee Reese fired the shot. Then he ran and saw nothing more. Christopher admits that he was at the scene of the shooting, that he was driving the car, and that a gun was fired from the car. Coley’s testimony did not differ from Christopher’s theory of what happened in any material way.

Decided February 17, 2012

Reconsideration denied March 15, 2012

[E]ven if the jury decided to completely disregard [Coley’s] testimony based on successful cross-examination, the testimony of [the] eyewitnesses remained. In light of the evidence, [Christopher is] not able to establish there is a reasonable probability that, but for the alleged deficient performance of trial counsel, the outcome of [his] trial would have been different.

(Citation and punctuation omitted.) Strong, 308 Ga. App. at 562.

5. In sum, we conclude that Christopher has not shown “both that counsel’s performance was deficient, and that the deficient performance was prejudicial to his defense.” Hendricks v. State, 290 Ga. 238, 241 (4) (719 SE2d 466) (2011). The trial lasted five days, and twenty-one witnesses testified. Trial counsel was highly experienced and qualified. The trial court observed that trial counsel fought “vigorously” on Christopher’s behalf.

“In assessing the degree to which counsel’s deficiencies might have prejudiced a petitioner’s defense, we consider the cumulative effect of all of trial counsel’s deficiencies within the context of everything that occurred at trial.” Humphrey, 289 Ga. at 866 (II). Assuming that certain deficiencies occurred, Christopher has failed to show that there is a reasonable probability that the outcome of the trial would have been different absent the deficiencies. As noted above, he admits that he was at the scene of the shooting, that he was driving the car, and that a gun was fired from the car, and four eyewitnesses testified that he shot Eli Jones. Christopher has not shown “a reasonable probability sufficient to undermine confidence in the outcome that, but for counsel’s alleged unprofessional errors, the result of the proceeding would have been different.” (Citation and punctuation omitted.) Moon, 288 Ga. at 516 (9). We therefore affirm his conviction.

Judgment affirmed.

Andrews, J., concurs. Phipps, P. J., concurs in the judgment only.

Matthew T Dale, for appellant.

Denise D. Fachini, District Attorney, Henry O. Jones III, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: MCFADDEN, Judge. ANDREWS, Judge,

license: Public Domain

text:
    A11A1615.
    HARRIS v. THE STATE.
    (726 SE2d 455)
   MCFADDEN, Judge.

John E. Harris appeals the denial of his motion for directed verdict of acquittal in his prosecution for misdemeanor obstruction of a law enforcement officer. In order to affirm on this record, we would be required to hold that any refusal to cooperate, even the peaceable assertion of constitutional rights, can support an obstruction conviction. We decline to adopt such a rule and find the evidence insufficient to support the conviction. We therefore reverse.

A motion for a directed verdict of acquittal is due to be granted when there is no conflict in the evidence, and the evidence and its reasonable deductions and inferences demand it. OCGA § 17-9-1 (a). When reviewing the trial court’s denial of a motion for directed verdict, the reviewing court may consider all the evidence in the case and must view the evidence in the light most favorable to the verdict. Schroeder v. State, 261 Ga. App. 879, 881-882 (2) (583 SE2d 922) (2003). But where, as here, the evidence of record includes an audio or video recording, “[t]o the extent that the controlling facts . . . are undisputed because they are plainly discernable from the . . . recording, we review those facts de novo.” Johnson v. State, 299 Ga. App. 474, 474-475 (682 SE2d 601) (2009), citing Lyons v. State, 244 Ga. App. 658, 658-659 (535 SE2d 841) (2000). The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Harvey v. State, 212 Ga. App. 632, 634 (2) (442 SE2d 478) (1994).

The accusation charged Harris with “unlawfully knowingly and willfully obstructing] and hindering] C SCAGGS, a law enforcement officer, in the lawful discharge of [her] official duties. ...” Detective Scaggs of the Cobb County Police Department testified that on July 29, 2009, the Department of Family and Children Services (“DFCS”) notified the Cobb County police that they needed to go to Harris’s house to check on the welfare of a ten-day-old infant, C. H., and if she were there, to take her into protective custody. Harris is C. H.’s father. Her mother is Kayla Bagwell. C. H.’s older siblings had already been placed in protective custody; C. H. had not been taken at the same time because she had not yet been born.

The police officers had a document reflecting a bond condition for a domestic violence case that restricted Harris’s and Bagwell’s contact with each other. The residence was the address Bagwell had listed with the police, the courts, and DFCS; and the bond condition stated that Harris could not be at the residence.

Five officers went to Harris’s house. They knocked on the door and identified themselves. Harris exited the house and shut the door. An audio recording of the encounter was played for the jury and entered into evidence. The audio recording demonstrated that the following transpired:

Audible footsteps
[Inaudible]
Male Officer 1: Is Ms. Kayla Bagwell in?
Harris: [Inaudible] unless you’ve got a court order or, or [inaudible].
Male Officer 2: We have a special bond [inaudible] [inaudible]
Harris: Let me see it.
Male Officer 1: . . . special bond . . . Ms. Kayla Bagwell [inaudible].
Harris: This case is over with. Be right back, get. I’ve got a, uh, I’ve got the resolution to this. There’s a . . .
Female Officer: Okay, well you’re not going back in there by yourself. One of us is going in there with you.
Harris: Okay, then none of us are going.
Male Officer 1: Is the child here?
Harris (talking at the same time as the officer): I want you guys...
Male Officer 1: Is the child here?
Harris: What?
Male Officer 1: Is the child here?
Harris: What child? Okay . . .
Male Officer 1: The ten-day old. . . .
Harris: Okay, I would like you guys to leave.
Male Officer 1: No sir, that’s not gonna happen.
Harris: Okay.
Male Officer 1: We can either do this the easy way or we can do it the hard way.
Harris: What’s the easy way and what’s the hard way?
Male Officer 1: The easy way is for you to answer the questions.
Harris: I don’t have to answer any questions.
Male Officer 1: Okay.
Harris: What’s the hard way?
Male Officer 1 (talking at the same time as Harris): ... do it the hard way . . . for obstruction.
Harris: For what?
Male Officer 1: For obstruction.
Harris: For what?
Male Officer 1: Obstructing . . .
Harris: Of what?
Male Officer 2: Our investigation.
Harris: Into what? [inaudible]
Male Officer 1 (talking at the same time as Harris): Into whether or not there’s a deprivation of a child.
Harris: That’s a civil matter.
Male Officer 1: No, it’s not. [inaudible]. You think I do civil matters?
Harris: No sir, I don’t.
Male Officer 1: Okay. Then why are you saying you think it’s a civil matter?
Harris: Because deprivation’s a civil matter.
Male Officer 1: No, it’s not. It’s a criminal matter. [inaudible]
Female Officer (talking at the same time as Male Officer 1): No, it’s not.
Harris: No sir, deprivation is a civil matter. I mean . . .
Male Officer 1: I ain’t got time for this. Turn around.
Harris: Alright.
Male Officer 1: Put your hands behind your back.
Harris: Alright, fine.
[inaudible]
Male Officer 1: Put your hands behind your back.
[inaudible]
Male Officer 1: You can sit there and say you want to obstruct us all day long.
[inaudible]
Male Officer 1: I told you and I told you.
Harris: My child is in the house.
Male Officer 1: Okay. See how easy that was?

From the knock on the door to the arrest, the entire encounter lasted 95 seconds. Harris made no threats and was not violent. At trial, Harris testified that “I made a choice that day to not cooperate. I didn’t stand in the way and tell them they couldn’t come in my house; I just didn’t invite them into my house and wasn’t going to.”

The accusation does not specify the conduct that obstructed Detective Scaggs. At trial, after recounting the events leading up to Harris’s arrest, an officer described his conduct as “basically, just refusing to cooperate.” On cross-examination that officer conceded that the basis for Harris’s arrest was “only . . . two things ... he did not allow [the officers] in the house and he didn’t answer questions about the child.” In its brief on appeal, the state argues that Harris’s conviction can be sustained on the basis of his “demand for the officers to leave the premises” and his “attempt! ] to misdirect the officers by repeatedly asking ‘what child,’ feigning ignorance of the situation.”

1. Harris argues that the trial court erred in not granting his motion for directed verdict because he did not obstruct the police but instead stood on his rights under the First, Fourth and Fifth Amendments to the United States Constitution. We agree with Harris that his conduct did not constitute obstruction under the statute.

Because our decision is founded on statutory construction, we need not reach Harris’s implicit claim that the obstruction statute, as applied to his behavior, violated the Constitution. See Powell v. State, 270 Ga. 327, 327-328 (1) (510 SE2d 18) (1998) (if appeal can be decided upon other grounds, it will not be decided upon constitutional grounds); Southern R. Co. v. Schlittler, 1 Ga. App. 20 (58 SE 59) (1907) (same). See generally Ga. Transmission Corp. v. Worley, 312 Ga. App. 855, 856 (720 SE2d 305) (2011) (all statutes are presumed to be enacted with full knowledge of existing law); Haley v. State, 289 Ga. 515, 521 (2) (b) (712 SE2d 838) (2011) (construing statute prohibiting the making of a false statement in matter within jurisdiction of government agency in manner so as to avoid First Amendment concern).

OCGA § 16-10-24 (a) provides that a person commits misdemeanor obstruction if the person “knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties.” As an initial matter, we agree with the state that the jury was authorized to conclude that the officers were acting in the lawful discharge of their duties. The state presented evidence that the officers had the authority to conduct a welfare check on the child pursuant to an open deprivation case.

The more difficult question is whether the statute criminalizes Harris’s conduct. We conclude that it does not.

The statute’s history sheds some light on its intended scope. At one time, this court construed the misdemeanor obstruction statute so that violence — or its verbal equivalent — was an essential element of the crime. See, e.g., Moccia v. State, 174 Ga. App. 764, 765 (331 SE2d 99) (1985); McCook v. State, 145 Ga. App. 3, 5 (2) (243 SE2d 289) (1978). Cf. Hudson v. State, 135 Ga. App. 739, 741-742 (2) (218 SE2d 905) (1975). But the statute was revised in 1986, and “the offense of misdemeanor obstruction under existing OCGA § 16-10-24 (a) no longer contains the element of violence as does the offense of felony obstruction under existing OCGA § 16-10-24 (b).” (Citations omitted.) Stryker v. State, 297 Ga. App. 493, 495 (677 SE2d 680) (2009).

[T]he [misdemeanor obstruction] statute was made purposefully broad to cover actions which might not be otherwise unlawful, but which obstructed or hindered law enforcement officers in carrying out their duties. This does not, however, make any actions which incidentally hinder an officer a crime. . . .

Hudson, 135 Ga. App. at 742 (noting the requirement that the conduct must be knowing and wilful). “Certainly the assertion of one’s constitutional rights cannot be an obstruction of an officer, or every assertion of such rights would lead to obstruction charges.” Ballew v. State, 245 Ga. App. 842, 843 (1) (538 SE2d 902) (2000), disapproved in part on other grounds, Stryker, 297 Ga. App. at 495, n. 1.

Although we have held that words alone can constitute obstruction, Stryker, 297 Ga. App. at 495, we have found no case upholding an obstruction conviction based solely upon a defendant’s act of speaking to, remonstrating with, or even criticizing an officer during the performance of his duties. Indeed, in the opinions upholding misdemeanor obstruction convictions based on a defendant’s words, the defendant: (1) instructed another person to remove evidence from the crime scene, id. at 493; (2) remonstrated so loudly that she interfered with an officer’s interview of individuals who had reported a crime, despite the officer’s instruction that she leave the scene, Carter v. State, 222 Ga. App. 397, 397-398 (1) (474 SE2d 228) (1996); (3) deliberately misled the officer about his identity, Wilson v. State, 261 Ga. App. 576, 578 (2) (583 SE2d 243) (2003); Herren v. State, 201 Ga. App. 509, 510 (1) (411 SE2d 552) (1991); (4) wilfully lied about the whereabouts of the subject of a bench warrant an officer was attempting to serve, Hudson, 135 Ga. App. at 742-743 (3); (5) wilfully lied to an officer, who was trying to execute an arrest warrant, about the present location of the arrestee, Duke v. State, 205 Ga. App. 689 (423 SE2d 427) (1992); and (6) deliberately misled the first responding officer about his role in a car wreck, Wells v. State, 297 Ga. App. 153, 154 (1) (676 SE2d 821) (2009).

Other cases upholding misdemeanor obstruction convictions involve words plus something more. See, e.g., Steillman v. State, 295 Ga. App. 778, 781 (2) (673 SE2d 286) (2009) (using fighting words and resisting arrest for disorderly conduct; involving felony and misdemeanor obstruction); Pinchon v. State, 237 Ga. App. 675-676 (516 SE2d 537) (1999) (arguing with police officer, refusing to comply with instruction to take written citation, and attempting to walk away when officer told defendant she was under arrest); Leckie v. State, 231 Ga. App. 760-761 (500 SE2d 627) (1998) (after being advised he was under arrest for disorderly conduct, defendant announced he was not going to jail, purposefully turned away from the officer and attempted to avoid being handcuffed).

Harris did not refuse to comply with an officer’s directive or command. No officer ever asked to enter his house. No officer ever asked him to produce the child. Harris was not threatening or violent. The audio recording demonstrates that Harris did not raise his voice, although the arresting officer raised his. The entire incident lasted 95 seconds.

We need not reach the legal merits of the proposition that the conviction can be sustained on the basis that Harris asked the officers to leave or that he should have allowed the officers into the house. The audio recording shows that there was never any mention of entry into Harris’s house without his consent.

The audio recording establishes that the officers made clear at the time of the arrest that it was for refusing to answer questions about the child. The officers presented Harris with a choice between answering their questions or being arrested for obstruction. Harris was arrested for peaceably asserting his constitutional rights as he understood those rights. That cannot be obstruction. Ballew, supra.

Harris’s single two-word response — “What child?” — cannot salvage this conviction. We note that, notwithstanding the testimony of the officers who appeared at trial, the audio recording establishes that Harris asked this question only once. See Johnson, 299 Ga. App. at 474. The question cannot be deemed obstruction. It did not in fact deceive the officers; DFACS had already informed them that there was a child. It did not materially expand the 95-second exchange. An officer immediately responded, “the ten-day old,” and the discussion turned to the officers’ rejection of Harris’s request that they leave.

There is no merit to the dissent’s suggestion that the question caused the officers to be “deceived about. . . the welfare of the child” so that they “could not leave without verifying that the child was alive and well.” Their assignment was to take the child “into protective custody.”

We find that Harris’s “conduct does not rise to the level of obstruction as a matter of law”; because we have so found, his conviction cannot stand. Beckom v. State, 286 Ga. App. 38, 41 (2) (648 SE2d 656) (2007) (evidence that defendant was slow to come to the door, was verbally abusive, and told officers that she had no knowledge of a juvenile who was actually in her home was insufficient to support conviction). See also Jackson, 443 U. S. 307. We therefore reverse.

2. Given the reversal, we do not reach Harris’s other enumeration of error.

Judgment reversed.

Barnes, E J., Phipps, P. J., and Mikell, P J., concur. Andrews, Dillard and Boggs, JJ., dissent.

ANDREWS, Judge,

dissenting.

Because the evidence before the jury was that officers were lawfully discharging their duties when they were sent by DFCS to check on the welfare of the child, and because Harris impeded them in this lawful discharge of their duties when he pretended that he did not know to what child they were referring, the jury was authorized to find Harris guilty of misdemeanor obstruction of an officer. Accordingly, I respectfully dissent.

The transcript shows that a DFCS investigator went with officers from the Crimes Against Children Unit to the home of Kayla Bagwell who had a current case with DFCS and two children already in protective custody. Harris was identified as the father of all three children and had recently been arrested for aggravated assault against Bagwell. At trial, the officer explained that his division worked with DFCS and carried out “child welfare checks” for DFCS whenever there was any reason to believe that “a child is not being properly cared for.” The officer stated that the complaint could come from anywhere and their unit was responsible for checking on the child.

Here, DFCS requested the welfare check on the newborn C. H. because of the ongoing case in which the two older children were already in protective custody. When asked whether officers brought court orders or warrants with them when doing child welfare checks, the response was, “No, sir; we don’t need it.”

The officer testified: “We didn’t even necessarily have to enter into the residence if he would have brought the child out to us, but he — every time the child question would come up, he would say, “What child?” and “I don’t know who you’re talking about.” Although Harris tried to argue to the jury that he was confused about which child of his the officers meant when they asked the question, the transcript shows that after he was arrested, Harris stated, “Okay, my child’s inside the house.” The officer responded: “See how easy that was?” Harris also stated at trial: “I knew who they were asking about, but I was not going to answer the question.” Further, the audiotape shows that an officer responded ‘‘the ten-day old” when Harris asked “what child?”

Because this is an appeal from a jury verdict, we must look to the evidence before the jury and determine whether a rational trier of fact could have found beyond a reasonable doubt that the officers were in the lawful discharge of their duties when they went to Harris’s house to inquire about the welfare of the child. The officers’ undisputed testimony was that DFCS may, during an open and continuing deprivation case, conduct “child welfare checks” at the home. When asked whether officers needed any court order, the response was that they did not. The jury was charged on the law of obstruction and told “[wjhether or not the actions of the defendant did hinder or impede the officers from carrying out their assigned duties is for you, the members of the jury to decide.”

The jury found Harris guilty and there was more than sufficient evidence to support the verdict. There was no evidence presented to the jury that officers did not have a right to conduct a welfare check on the child pursuant to an open deprivation case. Harris admitted that he deliberately refused to answer their questions about the welfare of his child. Accordingly, a rational trier of fact was authorized to conclude that the officers were in the lawful discharge of their duties when they went to Harris’s house to inquire about the child, and that he impeded them in their discharge of those duties. See English v. State, 257 Ga. App. 741, 743 (572 SE2d 86) (2002) (affirming that defendant was guilty of obstruction even though defendant claimed that officer was on private property and officer stated that he was not; it was for the jury to resolve conflicts in the evidence and reach a determination as to the facts).

Further, there is no issue raised that Harris was somehow convicted of obstruction because he refused to let officers enter his house. The audiotape of the entire incident leading up to Harris’s arrest was played for the jury and shows that there was never any mention of an entry into Harris’s house without his consent. Officers were clear that the arrest was for refusing to answer questions about the child. Harris acknowledges this in his brief when he states that the “core” of the prosecution’s case is the accusation that he obstructed officers by failing to answer their questions about the whereabouts of the child and her mother. More importantly, Harris himself attempted to bring out in cross-examination that officers never asked permission to come in the house, but rather arrested him because he refused to cooperate in the investigation into the welfare of the child. The audiotape confirms this, with the officer telling Harris that he is arresting him because he would not answer the questions. Harris’s statement at trial was that officers “were absolutely convinced that I was going to talk to them because they were going to make me. I just wouldn’t talk. That’s it.”

The majority holds that Harris cannot be charged with obstruction for responding “what child” when officers asked him about the baby because “[i]t did not in fact deceive [them, nor did it] materially expand the 95-second exchange.” The majority does not cite to any authority, factual or legal, for this statement. Of course the officers were not deceived into believing that there was no child; DFCS had already informed them that there was a child. What they were deceived about was the welfare of the child. By professing to have no knowledge of any child, Harris was not only obstructing a lawful investigation but, in addition, his response raised valid concerns about the child’s welfare. As previously stated, Harris had a history of family violence. At that point, the officers could not leave without verifying that the child was alive and well.

Beckom v. State, 286 Ga. App. 38 (648 SE2d 656) (2007), the only authority cited by the majority in reaching its holding, is not on point. In that case, this Court held that there was no authority for the State’s

proposition that an individual’s failure to answer the phone and failure to answer a knock on the door constitutes obstruction under OCGA § 16-10-24 (a), where there is no evidence that the individual knew of an on-going investigation, and certainly no evidence that the individual was attempting “knowingly and willfully” to impede such an investigation.

Id. at 42.

In this case it is undisputed that Harris knew of an ongoing investigation as to the welfare of his children and the family violence issue and there is undisputed evidence, his own admission, that he lied to the officers. See Wells v. State, 297 Ga. App. 153, 157 (676 SE2d 821) (2009) (finding obstruction of a law enforcement officer by giving misleading information to police officer responding to accident); Duke v. State, 205 Ga. App. 689, 690 (423 SE2d 427) (1992) (The trial court was authorized to find that appellant’s lie as to whether the arrestee was present in her home actually hindered and obstructed the officers in their efforts to make the arrest.).

“Whether a defendant’s actions actually hindered or impeded an officer is a decision for the trier of fact.” Williams v. State, 289 Ga. App. 402, 403 (657 SE2d 556) (2008). Accordingly, the trial court did not err in denying Harris’s motion for directed verdict, and the judgment should be affirmed.

Decided March 15, 2012.

John E. Harris, pro se.

Barry E. Morgan, Solicitor-General, Christopher S. Banning, Thomas J. Campbell, Assistant Solicitors-General, for appellee.

I am authorized to state that Judge Dillard and Judge Boggs join in this dissent.


author: Blackwell, Judge.

text:
    A11A1730.
    CONTRERAS v. THE STATE.
    (726 SE2d 107)
   Blackwell, Judge.

Raymond David Contreras was tried by a Gwinnett County jury and convicted of kidnapping with bodily injury and rape. He appeals, contending that the evidence is insufficient to sustain his conviction for kidnapping with bodily injury, that the court below erred when it gave an Allen charge, and that he was deprived at trial of the effective assistance of counsel. We find no merit in these contentions and affirm the judgment of conviction.

1. We consider first whether the evidence is sufficient to sustain the conviction for kidnapping with bodily injury. To this end, we ask whether any rational jury could have found proof beyond a reasonable doubt of the guilt of the defendant in the evidence adduced at trial, viewing that evidence in the light most favorable to the verdict. Howard v. State, 310 Ga. App. 659, 659 (1) (714 SE2d 255) (2011). And as we consider this question, we must keep in mind that it is for the jury, not appellate judges, to assess the credibility of witnesses, weigh and draw reasonable inferences from the evidence, and resolve conflicts in the evidence. Ferguson v. State, 307 Ga. App. 232, 233 (1) (704 SE2d 470) (2010). So, if the record contains some competent evidence to prove each element of kidnapping with bodily injury beyond a reasonable doubt, we must uphold the conviction, even though the evidence may be disputed. Id.

Viewed in the light most favorable to the verdict, the evidence in this case shows that Contreras and another man abducted the victim, then 16 years of age, as she walked alone down a road, that they took her to another location, and that they forcibly had sexual intercourse with her. The victim testified at trial and described the abduction and forced intercourse, and forensic scientists with the Georgia Bureau of Investigation testified about their DNA analysis of a tissue sample recovered from the victim, which matched Contreras. Contreras does not dispute that the evidence is sufficient to prove that he kidnapped and raped the victim, but he contends that no evidence shows that the victim sustained a bodily injury in the course of the kidnapping, an essential element, of course, of kidnapping with bodily injury. See OCGA § 16-5-40 (d) (4). This contention is without merit.

The evidence shows that the victim underwent a vaginal examination shortly after the kidnapping and rape. In the course of this examination, the victim experienced a burning sensation, and she complained of pain. And the examining nurse found that the victim had sustained a vaginal laceration, which was approximately one centimeter in length. From this evidence, a jury properly might have found beyond a reasonable doubt that the victim suffered a bodily injury in the course of the kidnapping, and for this reason, the evidence is sufficient to sustain the conviction for kidnapping with bodily injury. See Mayberry v. State, 301 Ga. App. 503, 512 (6) (687 SE2d 893) (2009) (“Kidnapping with bodily injury only requires that an injury, no matter how slight, occur during the kidnapping.”) (citation and punctuation omitted); see also Phillips v. State, 284 Ga. App. 683, 685 (1) (b) (644 SE2d 535) (2007) (same); Nelson v. State, 278 Ga. App. 548, 551 (3) (629 SE2d 410) (2006) (“Evidence of any physical injury, however slight, satisfies the bodily injury element necessary to establish kidnapping with bodily injury.”).

2. We next consider whether the court below erred when it gave an Allen charge. When a jury reports difficulty in reaching a unanimous verdict, whether to give an Allen charge is committed to the sound discretion of the trial court, and we review the decision to give such a charge only for an abuse of discretion. Johnson v. State, 278 Ga. 136, 138 (4) (598 SE2d 502) (2004). See also Sears v. State, 270 Ga. 834, 838 (1) (514 SE2d 426) (1999). We have explained before that the giving of an Allen charge amounts to an abuse of discretion when the terms of the charge itself, or the circumstances in which it is given, are coercive, “so as to cause a juror to abandon an honest conviction for reasons other than those based upon the trial or the arguments of other jurors.” Milligan v. State, 307 Ga. App. 1, 4 (4) (b) (703 SE2d 1) (2010) (punctuation and footnote omitted). In the course of its deliberations in this case, the jury twice informed the trial judge that it was having difficulty reaching a unanimous verdict on one of the counts. On the second occasion, the jury indicated that it was “completely hung . . . with no chance of a resolution,” and the judge then decided to give an Allen charge. A little more than an hour later, the jury returned a unanimous verdict of guilty on both counts. Contreras contends that the giving of the Allen charge was coercive and, therefore, an abuse of discretion.

Contreras does not contend that the terms of the charge itself were coercive, and he is right not to do so, especially considering that the trial court cautioned the jury that no verdict should be based on “a mere acquiescence of jurors in order to reach an agreement.” See, e.g., Wright v. State, 274 Ga. 305, 307 (2) (553 SE2d 787) (2001) {Allen charge not coercive where court warned jurors, among other things, “that a juror should not acquiesce in other jurors’ opinions merely to reach an agreement”); Sears, 270 Ga. at 837-838 (1) {Allen charge not coercive where “[t]he court made it clear that, although the jurors should consider the opinions of other jurors, they must never surrender their honest opinions for the sake of expediency”). He appears instead to contend that the circumstances in which the charge was given — the jury having deliberated for several hours and having reported that it was “completely hung . . . with no chance of a resolution” — rendered it coercive. We are not persuaded.

When the jury reported for a second time that it was deadlocked on one count and added that it was unlikely to reach a unanimous verdict, the trial court “was not bound by those pronouncements,” and the court instead was “required to make its own determination as to whether further deliberations were in order.” Sears, 270 Ga. at 838 (1) (citations omitted). At that point, only about six-and-a-half hours, including the lunch break, had passed since the jury had begun its deliberations. About two hours earlier, the jury had first indicated that it was deadlocked on one count, the judge had directed the jury to continue its deliberations, and the jury apparently had done so, asking a question of the judge about the asportation element of kidnapping in the meantime. And after the Allen charge was given, the jury deliberated for more than another hour before it finally returned its verdict. In these circumstances, the decision to give an Allen charge and require the jury to continue its deliberations was no abuse of discretion. See id. (where jury first indicated it was deadlocked after six hours of deliberation, and announced it was deadlocked again after another three hours, the trial court did not abuse its discretion in requiring the jury to deliberate further); Humphreys v. State, 287 Ga. 63, 80 (9) (a) (694 SE2d 316) (2010) (no abuse of discretion to require jury to continue deliberations where the jury had recently requested to rehear evidence); Milligan, 307 Ga. App. at 5 (4) (b) (trial court not bound by jury note indicating that jury would not reach a verdict).

3. We turn now to the contention that Contreras was deprived at trial of the effective assistance of counsel. To prevail on his claim of ineffective assistance, Contreras must prove both that the performance of his lawyer was deficient and that he was prejudiced by this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984). To prove that the performance of his lawyer was deficient, Contreras must show that his lawyer performed her duties at trial in an objectively unreasonable way, considering all the circumstances, and in the light of prevailing professional norms. See id. at 687-688 (III) (A); see also Kimmelman v. Morrison, 477 U. S. 365, 381 (II) (C) (106 SC 2574, 91 LE2d 305) (1986). And to prove that he was prejudiced by the performance of his lawyer, Contreras must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U. S. at 694 (III) (B); see also Williams v. Taylor, 529 U. S. 362, 391 (III) (120 SC 1495, 146 LE2d 389) (2000). This burden, although not impossible to carry, is a heavy one. See Kimmelman, 477 U. S. at 382 (II) (C).

Contreras testified at trial, and when he did so, his lawyer asked him on direct examination about his prior convictions for possession of cocaine, theft by taking, and burglary. Earlier, the trial judge had ruled that, if Contreras elected to testify, his prior convictions would be admitted for the purpose of impeachment, see OCGA § 24-9-84.1 (a) (2), and in light of this ruling, his lawyer decided to go ahead and bring out the prior convictions on direct examination. Contreras contends that his lawyer was ineffective because she elicited testimony about his prior convictions, thereby waiving his objections to the admission of those convictions. Although we accept that his lawyer waived his objections to the admission of the convictions, we do not think that amounts to ineffective assistance.

In the first place, it is not apparent that the objections had much merit. Whether to admit a prior conviction for the purpose of impeachment is committed to the discretion of the trial court, see Love v. State, 302 Ga. App. 106, 109-110 (2) (690 SE2d 246) (2010), and generally speaking, a prior felony conviction is admissible to impeach a defendant “if the court determines that the probative value of admitting the evidence substantially outweighs its prejudicial effect to the defendant.” OCGA § 24-9-84.1 (a) (2). The crimes of which Contreras previously had been convicted were serious and relatively recent, so his prior convictions undoubtedly had some probative value. Moreover, these crimes were dissimilar to the kidnapping and rape for which Contreras was on trial, making it less likely that he would be prejudiced unfairly by their admission. See Robinson v. State, 312 Ga. App. 110, 113 (2) (717 SE2d 694) (2011). For these reasons, the trial court might properly have admitted the prior convictions over the objections of Contreras, had he not waived them. We need not, however, decide definitively whether the objections to the admission of the prior convictions had any merit.

Even if the objections had some merit, their merit is doubtful enough that a lawyer might reasonably have concluded that little would be gained by preserving the objections. And if little would be gained by preserving the objections, a lawyer might reasonably have decided to go ahead on direct examination and bring out the prior convictions, so as to deprive the prosecuting attorney of the opportunity to raise the prior convictions for the first time on cross-examination. See, e.g., Collier v. State, 288 Ga. 756, 758 (3) (707 SE2d 102) (2011) (bringing out prior convictions on direct examination of defendant, “rather than risk having the information extracted from him on cross-examination,” was a reasonable strategy) (citation and punctuation omitted); Everett v. State, 297 Ga. App. 351, 353 (677 SE2d 394) (2009) (failure to object to admission of prior conviction was not ineffective where counsel testified, among other things, that “she believed it would be prudent to place the conviction before the jury first”); Rose v. State, 258 Ga. App. 232, 234-235 (2) (a) (573 SE2d 465) (2002) (decision to “beat the State to the punch” by informing the jury about prior conviction was a reasonable strategic decision). “Judicial scrutiny of counsel’s performance must be highly deferential,” and when we consider a claim of ineffective assistance, we must “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U. S. at 689 (III) (A). Contreras has failed to overcome this “strong presumption,” and for that reason, he has failed to carry his burden to show that eliciting testimony about his prior convictions on direct examination was objectively unreasonable.

Decided March 15, 2012.

Thomas S. Robinson III, for appellant.

Daniel J. Porter, District Attorney, Teresa B. Klein, Assistant District Attorney, for appellee.

Consequently, we affirm the judgment below.

Judgment affirmed.

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

       See OCGA § 16-5-40 (d) (4).

       See OCGA § 16-6-1 (a) (1).

       See Allen v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528) (1896). “An Allen charge is given by the trial court when the jury in a criminal trial indicates that it is deadlocked, encouraging the jurors to re-examine their opinions in continued deliberation and to attempt to reach a unanimous verdict.” Walker v. State, 308 Ga. App. 176, 184 (4), n. 35 (707 SE2d 122) (2011).

       Contreras enumerates this ruling as error, but because he testified on direct examination about his prior convictions, he has waived any objection to the admission of those convictions. See Ohler v. United States, 529 U. S. 753, 760 (120 SC 1851, 146 LE2d 826) (2000) (“[A] defendant who preemptively introduces evidence of a prior conviction on direct examination may not on appeal claim that the admission of such evidence was error.”); see also Scherr, Green’s Georgia Law of Evidence § 14, p. 54 (6th ed. 2008) (“Waivers also occur when a party introduces evidence of the same fact that he tries to keep out when offered by the opposing party . . . .”); Bartow County School Dist. v. Weaver, 121 Ga. App. 733, 737 (3) (175 SE2d 78) (1970) (same). Contreras concedes as much in his arguments about ineffective assistance of counsel, saying that his lawyer failed “to preserve [his] objection to the admission of certified convictions for impeachment.”

       A different standard applies when more than ten years have passed since the date of conviction or the date on which the defendant was released from confinement, whichever is later, see OCGA § 24-9-84.1 (b), but that is not an issue in this case.

       Contreras argues that the court below misapplied the relevant standard because, although it found that the probative value of the prior convictions outweighed their prejudicial effect, it made no finding about whether their probative value substantially outweighed their prejudicial effect. See Johnson v. State, 307 Ga. App. 791, 793 (706 SE2d 150) (2011). But that is a problem that the court could have corrected on a motion for new trial simply by making the necessary finding, if only Contreras had preserved his objections to the admission of the prior convictions. See Carter v. State, 303 Ga. App. 142, 144-147 (2) (692 SE2d 753) (2010).


author: BARNES, Presiding Judge.

text:
    A11A2140.
    BISHOP v. THE STATE.
    (726 SE2d 112)
   BARNES, Presiding Judge.

Following a jury trial, Fredrick Bishop was convicted of robbery by intimidation, robbery, terroristic threats, and criminal trespass. Following the denial of his motion for new trial, he appeals, contending that the trial court erred in admitting similar transaction evidence, and in failing to tailor the charge on similar transaction to the specific purpose for which it was admitted. Following our review, we affirm.

“On appeal from a criminal conviction, the evidence must be viewed in tbe light most favorable to support the verdict, and [the defendant] no longer enjoys a presumption of innocence.” (Citations, punctuation and footnotes omitted.) Jackson v. State, 252 Ga. App. 268 (1) (555 SE2d 908) (2001). So viewed, the evidence shows that on the afternoon of September 2, 2008, a man entered a CVS Pharmacy and asked the store clerk if his identification was there. After the clerk checked and informed him that his identification was not in the store, the man asked her for help locating bandages. The clerk testified that the man had a bloody bandage on his arm. When she rang the purchase up, the man told her not to close the cash drawer, jumped over the counter, and took the money out of the register. The clerk testified that the man was carrying a book bag, and that although she knew that he was a “black man,” she could not identify him.

A customer was on the phone outside the door when the robber ran out. He knocked her down, grabbed the car keys from her hand, and when she tried to stop him, threatened to “kill [her]” if she did not move. The woman identified Bishop as the man she saw run out of the store and take her car. She also testified that she saw a white bandage around Bishop’s arm.

The woman testified that before the robbery, Bishop was sitting outside and had asked her to jump start his car “up the road around the curve ... if you’re not driving that Honda.” She told him that she was driving a Ford Explorer.

Another customer in the parking lot testified that she saw Bishop run out of the store with a “wad of money in his hand and . . . a bandage around his arm.” She testified that after he knocked a woman down and grabbed her keys, he jumped into a green truck. The witness said she tried to block his escape with her Jeep, but Bishop rammed her vehicle and another truck before speeding out of the parking lot. She identified Bishop as the man she saw that day.

During the course of the ensuing police investigation, a store employee provided police with information that led to the identification of Bishop as the robber. A witness identified Bishop from a photographic lineup, and he was arrested later that day.

1. In two related enumerations, Bishop contends that the trial court erred in admitting the similar transaction evidence. He maintains that when the State filed its notice of intent to present evidence of similar transaction, it did not attach any documentation, and thus he had no notice of what he had to defend against. Bishop also maintains that the trial court failed to factually find that he was the perpetrator of the similar transaction or that it was sufficiently similar to the offense charged.

The State, at a Uniform Superior Court Rule (“USCR”) 31.3 (B) hearing, “must make three affirmative showings as to each independent offense or act it seeks to introduce.” Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). Specifically, the State must show

that it is seeking to introduce the evidence for a permissible purpose; there is sufficient evidence that the accused committed the independent offense or act; and there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.

(Footnote omitted.) Mattox v. State, 287 Ga. App. 280, 282 (1) (651 SE2d 192) (2007).

During the hearing, the State presented evidence of a robbery that had occurred in Alabama only days before the CVS robbery that showed Bishop had gone to a gas station, threatened the clerks with a gun, jumped behind the counter, and taken the money out of the cash register. The incident was captured on videotape, and a witness identified Bishop. Bishop viewed the videotape before the hearing, and the eyewitnesses from the Alabama robbery were present to identify Bishop. The State included the arrest warrant with its notice because the case had not yet been indicted in Alabama, given that Bishop was arrested in the CVS robbery before the Alabama warrant had been issued. The State maintained that the two crimes were similar because “this is also a robbery in broad daylight [with] no disguise.”

We agree with the trial court that this evidence was admissible for the purpose of showing a common scheme or plan, or a modus operandi, that there was sufficient evidence to find that Bishop was the person who committed the act, and that there was sufficient similarity between the Alabama crime and the crimes charged. Thus, the trial court did not abuse its discretion in admitting evidence of the similar transaction. See Woods v. State, 275 Ga. App. 340, 342 (1) (a) (620 SE2d 609) (2005) (concluding that details of prior crime were admissible as similar transaction evidence where prior crime involved circumstances similar to those giving rise to defendant’s current theft charges, even though defendant had not been prosecuted for prior crime).

Bishop’s contention that the trial court failed to make findings of fact about his identity as the perpetrator in the Alabama robbery, or that the crimes were sufficiently similar is also meritless. The trial court specifically found that the State had both shown that the evidence was sufficient — crime scene videotape and eyewitnesses — to identify Bishop as the perpetrator in the Alabama robbery, and that the crimes were sufficiently similar.

2. Bishop also contends that the trial court erred in expanding its charge on similar transaction beyond the purposes for which the prior crime was admitted. We find no error in the trial court’s charge to the jury on the use of the similar transaction evidence. Bishop did not object to the limiting instruction given before the admission of the similar transaction evidence and again in its final charge. Bishop’s failure to object to the trial court’s charge results in a waiver “unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties.” OCGA § 17-8-58 (b).

Despite the lack of objection below, however, the expansion of the jury instructions was raised in Bishop’s amended motion for new trial and enumerated as error on appeal. In accordance with our Supreme Court’s recent decision in State v. Kelly, 290 Ga. 29, 32 (1) (718 SE2d 232) (2011), and the mandate of OCGA § 17-8-58 (b), we must review the charge to determine whether it constituted plain error. Id. at 32 (1). Although Bishop does not argue in his appellate brief that plain error resulted from the “so-called” expansion of instruction on similar transaction evidence, upon our review under the standard set forth in Kelly, we discern no plain error. See Bellamy v. State, 312 Ga. App. 899, 901 (1) (720 SE2d 323) (2011).

Decided March 15, 2012.

Suellen Fleming, for appellant.

Peter J. Skandalakis, District Attorney, David P. Taylor, Assistant District Attorney, for appellee.

Judgment affirmed.

Adams and Blackwell, JJ., concur.


text:
    A11A2225.
    TUGGLE v. BURPEE et al.
    (726 SE2d 114)
   BARNES, Presiding Judge.

In November 2008, Brandon Helmick was painting the outside of a house under construction when he fell from his ladder and sustained serious injuries. He obtained workers’ compensation benefits through his employer, James Conrad, and filed suit against Stephen Burpee, Burpee Construction, LLC, Leigh Kersey, Kersey Home Builders, LLC, Paul Vogler, and William Baker, Jr. Following discovery, the trial court granted summary judgment to Kersey, his company, Burpee, and Burpee’s company. Helmick appealed the grant of summary judgment to Burpee and his company.

When this appeal was filed, issues with other defendants remained pending in the trial court, including Helmick’s negligence claims against Vogler and Baker and Kersey’s request for attorney fees. Two months after filing this notice of appeal, Helmick committed suicide, and the trial court substituted Robert T. Tuggle III, the administrator of Helmick’s estate, as the plaintiff. We granted Tuggle’s motion to be substituted as the appellant in this case. For consistency, however, we will refer to the appellant as Helmick in this opinion.

On appeal we review the trial court’s grant of summary judgment de novo to determine whether the evidence, viewed in the light most favorable to the nonmoving party, demonstrates a genuine issue of material fact. Ford v. Bank of America Corp., 277 Ga. App. 708 (627 SE2d 376) (2006). Summary judgment is proper only when no issue of material fact exists and the moving party is entitled to judgment as a matter of law. Id. When reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence. Wachovia Bank v. Moody Bible Institute of Chicago, 283 Ga. App. 488, 489 (642 SE2d 118) (2007).

So viewed, the evidence in the records shows that Kersey LLC was the general contractor for this project, and hired Conrad as the painting subcontractor. Helmick was one of Conrad’s employees. Kersey also hired Burpee LLC as the siding subcontractor, and Burpee hired Vogler and Baker, with whom he had previously worked, to install the concrete siding. Burpee had his heavy-duty forklift transported to the construction site so the homeowner could lift the siding off a flat-bed 18-wheeler and Vogler and Baker could lift the siding into place.

On the day Helmick was injured, Vogler and Baker were using the forklift. Helmick was on a 30-foot ladder painting the exterior of the house when Vogler hit the ladder with the forklift and caused Helmick to fall. In his deposition, Helmick said he warned the forklift operator several times that he was too close to the ladder, but the operator assured him he would be careful. About an hour later, Helmick felt his ladder shift when the forklift hit it. The operator tried to back up but slid in the mud and the forklift struck the ladder again, causing Helmick to slip and hang suspended with his foot caught between the rungs. The operator tried to back up again but the lifter slid forward and struck the ladder for the third time. Helmick fell headfirst to the ground and suffered injuries including broken ribs, a punctured lung, and a fractured hand.

Helmick initially sought workers’ compensation benefits from Conrad and Kersey, but obtained them through Conrad’s insurer. He sued Kersey, Burpee, Vogler, and Baker for negligence, and the trial court granted summary judgment to Kersey and Burpee, and their respective companies.

This appeal involves only the summary judgment grant to Burpee. The trial court held that Burpee was not liable individually because the evidence showed that all the activities related to this construction contract were conducted through his corporation, Burpee LLC. Helmick submitted no evidence that Burpee had failed to maintain the corporate form, the court held; therefore Burpee was entitled to summary judgment. Burpee LLC was entitled to summary judgment because the evidence showed that Vogler and Baker were independent contractors, not employees, and because no evidence supported Helmick’s negligent entrustment claim.

1. Helmick argues that the trial court erred in granting summary judgment to Burpee and Burpee LLC because genuine issues of material fact exist regarding whether Vogler and Baker were employees, and whether Burpee LLC negligently entrusted the forklift to them. We disagree.

First, Helmick does not argue that Burpee should be held liable individually, and therefore, he has waived that issue.

Second, an employer is not responsible under a theory of respondeat superior for the torts of one employed as an independent contractor. St. Paul Cos. v. Capital Office Supply Co., 158 Ga. App. 748 (282 SE2d 205) (1981). To determine whether one was an employee or an independent contractor, we consider whether the employer retained the right to exercise control over the time, place, method, or manner of the work performed. Kimble v. BHM Constr. Co., 193 Ga. App. 441, 442 (388 SE2d 40) (1989). Here, Vogler and Baker did not report to Burpee on a daily basis, and Burpee did not control the time, method, or manner of their work. Burpee also did not provide them with materials or tools, could not direct them to report to a different job site, and would only fire them for poor workmanship or for failing to complete the job in a timely manner. The men were not paid an hourly rate, but by the job, and had completed Form 1099s for Burpee to report their earnings for tax purposes rather than having income taxes deducted by Burpee.

While Helmick describes evidence that Burpee failed to present, such as contracts with Vogler and Baker establishing they were independent contractors, and hypothesizes that Burpee’s pay records could support the conclusion that Vogler and Baker were employees, the record contains specific uncontradicted evidence to the contrary. Even if we were to assume that the absence of evidence constitutes circumstantial evidence, “circumstantial evidence is insufficient to overcome direct and positive evidence of the fact in question unless it points to a conclusion opposite that of the direct evidence” in the record. (Citation omitted.) Brock Built, LLC v. Blake, 300 Ga. App. 816, 819 (1) (686 SE2d 425) (2009). Considering the evidence de novo, the trial court did not err in granting summary judgment to Burpee LLC on the ground that Vogler and Baker were independent contractors, not employees.

2. Helmick contends that the trial court also erred in granting summary judgment to Burpee LLC on his claim of negligent entrustment.

Under the doctrine of negligent entrustment, a party is liable if he entrusts someone with an instrumentality, with actual knowledge that the person to whom he has entrusted the instrumentality is incompetent by reason of his age or inexperience, or his physical or mental condition, or his known habit of recklessness.

(Citations and footnote omitted.) Gunn v. Booker, 259 Ga. 343, 347 (3) (381 SE2d 286) (1989). Even if we assume that operating a forklift is the equivalent of operating a car, “the fact that appellee made no direct inquiry of [Vogler and Baker] is not material to [his] liability.” Worthen v. Whitehead, 196 Ga. App. 678 (396 SE2d 595) (1990). A vehicle owner has no duty to investigate the competency of someone who drives the vehicle and ascertain his reputation as a driver. Wilson v. Ortiz, 232 Ga. App. 191, 195 (2) (501 SE2d 247) (1998).

Decided March 15, 2012.

Reynolds, Horne & Survant, Timothy J. Boyd, Mary-Dallas J. Roper, for appellant.

Monica L. Wilburn, for appellees.

While the record contains evidence that Burpee had the forklift delivered to the site for Vogler and Baker to use, no evidence suggests that Vogler and Baker were reckless or incompetent, much less that Burpee knew or had reason to know they were. Helmick argues only that Burpee did not know whether his contractors were competent or not, and that “Burpee’s testimony clearly indicates he is now blaming” Vogler and Baker individually or collectively for Helmick's damages. To the contrary, however, Burpee did not imply that he “blames” Vogler and Baker for anything; he simply stated the facts: that the men were independent contractors, Vogler had operated his forklift before, Burpee was not aware if either man had ever had a suspended driver’s license, and he did not ask them if they knew how to drive a forklift.

Because no genuine issue of material fact exists regarding Helmick’s negligent entrustment claim, the trial court did not err in granting Burpee’s motion for summary judgment.

Judgment affirmed.

Adams and Blackwell, JJ., concur.


author: BLACKWELL, Judge.

text:
    A11A2416.
    HATCHER v. THE STATE.
    (726 SE2d 117)
   BLACKWELL, Judge.

After law enforcement officials found child pornography on his personal computer, Edward Hatcher was convicted of sexual exploitation of a child and sentenced to a term of imprisonment under the mandatory minimum sentencing provisions of OCGA § 17-10-6.2. Hatcher appeals, contending that the court below erred when it denied his motion to suppress information obtained from an Internet service provider and when it concluded that it was without discretion to depart downward from the mandatory minimum sentence. We find no error in the denial of his motion to suppress, but we vacate his sentence and remand for reconsideration in light of Hedden v. State, 288 Ga. 871 (708 SE2d 287) (2011).

1. We turn first to the motion to suppress. When an appeal is taken from the denial of a motion to suppress, we owe no deference to the way in which the court below resolved questions of law, Barrett v. State, 289 Ga. 197, 200 (1) (709 SE2d 816) (2011), but we accept its factual findings unless clearly erroneous, and we view the evidence in the light most favorable to the decision of the court below. Culpepper v. State, 312 Ga. App. 115, 115-116 (717 SE2d 698) (2011). So viewed, the evidence in this case shows that an investigator with the Cherokee County Sheriffs Office learned that someone was using a computer in Cherokee County to share child pornography on the Internet. The investigator ascertained that the Internet Protocol (IP) address used by the child pornographer was assigned to a customer of Comcast Cable Communications, an Internet service provider, and the investigator asked Comcast to provide certain information about the account of that customer. Comcast did so, disclosing the name of the customer and her billing address, which was a residential address in Cherokee County.

The investigator obtained a warrant to search the residence at the billing address for certain evidence of child pornography, including any computers or electronic data storage devices that he might find there. When the investigator went to the home, he confirmed that it was occupied by a family that subscribed to Comcast Internet service. The investigator learned that the family used a wireless router to access the Internet, and he also discovered that Hatcher lived in the basement of the home and used the same wireless router. The investigator interviewed Hatcher, and another officer examined his computer and found files that appeared to contain child pornography. A subsequent forensic examination of the computer revealed numerous files containing child pornography.

Before trial, Hatcher moved the court below to suppress the customer information that the investigator obtained from Comcast, but the court denied his motion. On appeal, Hatcher argues that the request for information amounted to an unreasonable search in violation of the Fourth Amendment. We disagree. When one contends that he was aggrieved by an unreasonable search and seeks to suppress evidence obtained as a result of the search, he must show, among other things, that an agent of the government either trespassed upon his property, see United States v. Jones,_U. S_(II) (A) (132 SC 945, 181 LE2d 911) (2012), or invaded some other place or thing in which he has a reasonable expectation of privacy. See Bond v. United States, 529 U. S. 334, 337-339 (120 SC 1462, 146 LE2d 365) (2000). Here, Hatcher cannot seriously claim that a request for information from Comcast was a trespass upon his property, so we consider whether he has a reasonable expectation of privacy in the information disclosed by Comcast.

The United States Supreme Court “consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith v. Maryland, 442 U. S. 735, 743-744 (II) (B) (99 SC 2577, 61 LE2d 220) (1979) (no reasonable expectation of privacy in telephone numbers dialed and voluntarily conveyed to telephone company); see also United States v. Miller, 425 U. S. 435, 442 (II) (96 SC 1619, 48 LE2d 71) (1976) (no reasonable expectation of privacy in financial information voluntarily conveyed to financial institution and exposed to its employees in ordinary course of business). Consistent with this principle, numerous federal courts have concluded that an Internet service customer has no reasonable expectation of privacy in the subscriber information that he gives voluntarily to his Internet service provider. See, e.g., United States v. Beckett, 369 Fed. Appx. 52, 56 (II) (A) (1) (11th Cir. 2010) (“ [Suppression under the Fourth Amendment was not required because [the subscriber] did not have a reasonable expectation of privacy with regards to the information transmitted.”); United States v. Christie, 624 F3d 558, 573-574 (II) (C) (3rd Cir. 2010) (no reasonable expectation of privacy in IP address or subscriber information because such information is voluntarily conveyed to third parties); United States v. Bynum, 604 F3d 161, 164 (II) (A) (4th Cir. 2010) (no reasonable expectation of privacy in Internet service subscription information because it is voluntarily conveyed to third parties); United States v. Perrine, 518 F3d 1196, 1204 (I) (10th Cir. 2008) (“Every federal court to address this issue has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment’s privacy expectation.”); Guest v. Leis, 255 F3d 325, 336 (II) (C) (3) (6th Cir. 2001) (“[Computer users do not have a legitimate expectation of privacy in their subscriber information because they have conveyed it to another person — the system operator.”). In light of these decisions, we doubt that an internet service subscriber can have a reasonable expectation of privacy in the subscriber information that he voluntarily conveys to an Internet service provider in order to obtain Internet service.

But we need not decide that question definitively in this case because Hatcher is not the subscriber whose information was requested from Comcast. Instead, he simply used the Internet service subscription of another to access the Internet, and the record tells us nothing about his relationship with the subscriber, except that he apparently had lived for two months in her basement. Even if a subscriber might have a reasonable expectation of privacy in her own account information, we do not understand how anyone else could have a reasonable expectation of privacy in it, especially in the absence of some special relationship between that person and the subscriber. For this reason, we conclude that Hatcher failed to establish a reasonable expectation of privacy in the information requested from Comcast, and the court below did not err when it denied his motion to suppress.

2. We now consider the sentencing issue. The court below sentenced Hatcher under the mandatory minimum sentencing provisions of OCGA § 17-10-6.2, and it concluded that it was without discretion to consider a downward departure from the mandatory minimum under OCGA § 17-10-6.2 (c) (1), a conclusion that Hatcher contends was erroneous. Recently, in Hedden, 288 Ga. at 873-876, our Supreme Court addressed whether a sentencing court has discretion in a child pornography case to consider a downward departure, and the State concedes that Hedden applies here. Consequently, we vacate the sentence imposed in this case, and we remand for the court below to reconsider the question of sentencing in light of Hedden.

Decided March 15, 2012

Anthony J. Morgese, for appellant.

Garry T. Moss, District Attorney, Cliff Head, Lara A. Snow, Assistant District Attorneys, for appellee.

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

Barnes, P. J., and Adams, J., concur in Division 2 and in the judgment.

       See OCGA § 16-12-100.

       To request this information from Comcast, the investigator obtained a warrant to search the records of Comcast for the information, and he sent a copy of the warrant by facsimile to the offices of the Comcast Legal Department in New Jersey.

       The family at the home and the customer previously identified by Comcast have the same surname.

       Hatcher apparently had lived in the basement of the family’s home for about two months. The record does not reveal the relationship, if any, between Hatcher and the family or whether he was a renter or guest in their home.

       Hatcher also moved to suppress any evidence obtained by use of that information, which includes, of course, the evidence later found on his computer.

       The Georgia appellate courts likewise have held consistently that one has no reasonable expectation of privacy in information voluntarily conveyed to another and maintained in the business records of another. See, e.g., Kesler v. State, 249 Ga. 462, 469 (5) (291 SE2d 497) (1982) (telephone toll and billing records are business records of telephone company, and defendant lacks standing to object to their production by telephone company); Culpepper v. State, 156 Ga. App. 331, 331 (1) (274 SE2d 616) (1980) (bank customer has no reasonable expectation of privacy in his bank records).

       In this case, we are dealing only with customer information voluntarily disclosed to an Internet service provider to obtain Internet service. We do not address whether a customer or user of Internet service has a reasonable expectation of privacy in the content of electronic mail and other electronic communications that he transmits across the Internet. See Rehberg v. Paulk, 611 F3d 828, 842-847 (III) (C) (11th Cir. 2010) (acknowledging difficulties in assessing reasonable expectation of privacy in content of electronic communications).


text:
    A11A1662.
    WILLIAMS v. THE STATE.
    (726 SE2d 66)
   MCFADDEN, Judge.

Gregory Williams was charged with an armed robbery that occurred on April 15, 2007. He moved to suppress evidence, contending that an inculpatory statement he made to law enforcement officers was involuntary and that various evidence, including his statement, was the fruit of an illegal stop of his car. The trial court denied Williams’s motions to suppress, finding that the statement was voluntary and that the stop of Williams’s car was not illegal, and Williams was convicted after a jury trial. He argues on appeal that the evidence was insufficient to support his conviction, that the court erred in denying his motion for directed verdict, that the court erred in allowing hearsay testimony, that the court erred in denying his motion to suppress, and that he received ineffective assistance of counsel.

As detailed below, the evidence was sufficient to support Williams’s conviction, so the trial court did not err in denying his motion for directed verdict. Williams has failed to demonstrate the merits of his hearsay claim because he has not cited to the place in the record where the alleged hearsay occurred.

As to the motion to suppress, the court properly ruled that Williams’s inculpatory statement was not subject to suppression as involuntary. But the trial court erred in ruling that the stop of Williams’s car was constitutional, because the state failed to meet its burden on that point. Because of that erroneous ruling, the trial court did not consider whether the challenged evidence should have been suppressed as fruit of the illegal stop. Williams has waived his appeal of one of these pieces of evidence (a handgun found in his car) by affirmatively stating that he had no objection to its admission at trial. As to the other pieces of challenged evidence, however, we vacate the order denying the motion to suppress and remand for further proceedings not inconsistent with this opinion. Given this disposition, we do not reach Williams’s claims of ineffective assistance of counsel.

The following evidence was presented at trial. A store clerk testified that on April 15, 2007, a person came into the store, pointed a silver gun at her, and took money from the store’s cash register. Similar transaction witnesses testified about other armed robberies in the area that had occurred in April 2007. A police officer investigating the series of robberies testified that he suspected that a man known as Harry Wright was involved and that the weapon used in the robberies was a nine-millimeter silver and black gun. The investigator further testified that on April 18 he received information that Wright had been seen riding as a passenger in a car, and he issued a “be on the lookout” to other officers. Another officer stopped a car driven by Williams in which Wright was a passenger. The investigator arrived on the scene immediately afterward.

During the stop, Williams told the investigator that there was a gun in the car’s center console. Williams consented to a search of the car, which yielded a nine-millimeter pistol that was admitted into evidence at trial. Similar transaction witnesses testified that the gun looked like that used in some of the other robberies.

The investigator testified that Williams voluntarily accompanied him to the sheriffs office and, after being read his Miranda rights, was interviewed. He was not under arrest at that time. During the interview, Williams stated that he had participated in the series of armed robberies by driving Wright to the locations that were robbed, described what Wright was wearing during the robberies, and stated that the gun found in the console of the car was his and had been used in the armed robberies. The state also introduced evidence that Williams had bought a nine-millimeter gun from a pawn shop in 2000.

Wright testified at trial that he had committed the series of armed robberies, including the armed robbery on April 15, 2007, and that Williams had participated by selecting the stores to rob, supplying the gun, acting as the getaway driver, and receiving part of the stolen money. Law enforcement officers testified that Wright also implicated Williams during an interrogation. Evidence was presented that Wright consented to a search of his hotel room, in which law enforcement officers found items of clothing matching those worn by the armed robber; the clothing was admitted into evidence.

A person who had shared a cell block with Wright testified that Wright told him Williams was not involved in the armed robberies. Williams also testified. He denied participating in the armed robberies and explained that he had said otherwise in his police interview because he had felt scared and nervous. He admitted purchasing a gun from the pawn shop. He testified that he had kept the gun in his car and suggested that Wright had obtained it on an occasion when he had borrowed the car.

1. The evidence presented at trial is sufficient to support Williams’s conviction for armed robbery under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See OCGA § 16-8-41 (a) (“[a] person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon”); see also OCGA § 16-2-20 (a) (“[e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime”). And because the evidence meets the Jackson v. Virginia standard, the trial court did not err in denying Williams’s motion for directed verdict. See Hester v. State, 282 Ga. 239, 240 (2) (647 SE2d 60) (2007) (standard of review for denial of motion for directed verdict is same as for determining sufficiency of evidence supporting conviction).

2. Williams contends that the trial court “erred in allowing testimony that a bullet found at the scene of one of the similar transaction cases was a match for the 9 millimeter gun found in Williams’[s] car,” on the ground that this testimony was hearsay. He does not, however, provide any citation to the place in the record where this allegedly objectionable testimony occurred. It is not the appellate court’s job to cull the record on behalf of a party to find error. Watson v. State, 289 Ga. 39, 46 (12) (d) (709 SE2d 2) (2011). Consequently, this contention is without merit. Id.

3. Williams argues that the trial court should have suppressed the inculpatory statement he made at the sheriffs office because it was not made freely and voluntarily. In ruling on the statement’s admissibility, the trial court was required to determine whether, based on the totality of the circumstances, a preponderance of the evidence demonstrated that the statement was made freely and voluntarily. Pineda v. State, 287 Ga. App. 200, 201 (1) (651 SE2d 148) (2007). We will uphold the trial court’s factual findings and credibility determinations regarding the statement’s admissibility unless clearly erroneous. Nguyen v. State, 273 Ga. 389, 395 (2) (b) (543 SE2d 5) (2001). “Generally, if there is evidence supporting the trial court’s decision to admit statements, it will be upheld on appeal.” (Citation omitted.) Milinavicius v. State, 290 Ga. 374, 375 (2) (721 SE2d 843) (2012).

Williams argues that his statement was involuntary because it was induced by both hope of benefit and fear of injury. See OCGA § 24-3-50 (an admissible confession must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury); see also Wilson v. State, 285 Ga. 224, 227 (3) (675 SE2d 11) (2009). Williams received Miranda warnings at the beginning of the interview, before making the statement, and he acknowledged those warnings again partway through the interview. At the hearing on his motion to suppress, Williams testified that he made the statement because the interrogating officers told him that if he told the truth they would let him go. He also testified that the officers raised their voices at him and that one officer hit his hand on the table, stood up and told him he was lying. Williams testified that he got “scared up and confused,” and he decided that if he said yes to the officers’ questions they might release him. The investigator denied having promised Williams lenient treatment if he cooperated with them, and the video recording of the interview does not support Williams’s contention that he received hope of benefit. See Wilson, 285 Ga. at 228 (3) (“hope of benefit” generally is construed as hope of lesser punishment but does not extend to an officer’s statement of opinion about how others might view a defendant’s cooperation and truthfulness or lack thereof). The video recording also does not support Williams’s contention that the officers’ conduct during the interview caused fear of injury rendering his statement involuntary. See id. (the “fear of injury” referred to in OCGA § 24-3-50 is physical or mental torture).

The trial court ruled that Williams’s statement was not the result of “coercion, undue promises, or threats,” and that it was admissible. Based on the totality of the circumstances, this decision was not clearly erroneous. See Milinavicius, 290 Ga. at 375 (2).

4. Williams argues that the officers had no basis to stop his car and detain him and thus the trial court should have suppressed as fruits of the illegal stop the gun found during the search of his car, other evidence of his ownership of the gun (including statements that he made during the stop), evidence found in Wright’s hotel room, and the inculpatory statement he made at the sheriffs office. See Dupree v. State, 247 Ga. 470, 472 (2) (277 SE2d 18) (1981) (even if statement is otherwise admissible as freely and voluntarily given under the Fifth Amendment, it may still be inadmissible as the fruit of a Fourth Amendment violation).

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

(a) As an initial matter, Williams has not preserved for appellate review his objection to the admission of the gun, because at trial his counsel affirmatively stated that he had no objection to its admission. “In so doing, counsel waived any objection, including those raised in his motion to suppress.” (Citation omitted.) Monroe v. State, 272 Ga. 201, 204 (6) (528 SE2d 504) (2000); see also Dyer v. State, 233 Ga. App. 770, 771 (505 SE2d 71) (1998) {“[flailing to object at trial is not a waiver of the motion to suppress grounds, but affirmatively stating there is no objection in effect concedes the point”) (citations omitted; emphasis in original).

(b) In reviewing the trial court’s denial of the motion to suppress as to the remaining evidence challenged by Williams, we must consider whether the state met its burden of proving that Williams was not stopped illegally. See State v. Massa, 273 Ga. App. 596, 597 (615 SE2d 652) (2005) (state bears the burden of showing circumstances constituting an exception to the general prohibition against warrantless searches and seizures).

Although an officer may conduct a brief investigative stop of a vehicle, such a stop must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The totality of the circumstances is taken into account in determining whether the detaining officer has a particularized and objective basis for suspecting the person stopped of criminal conduct. The legality of the stop depends upon what information police officers had prior to making the stop.

(Citations and punctuation omitted.) Kazeem v. State, 241 Ga. App. 175, 177 (1) (525 SE2d 437) (1999).

The trial court found that the stop of Williams’s car was supported by reasonable articulable suspicion. But the sheriffs deputy who made the stop did not testify at either the hearing on the motion to suppress or trial. 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). Without his testimony, we do not know what information he had before making the stop or whether he had an objective and particularized basis for stopping Williams. Kazeem, 241 Ga. App. at 178 (1). Testimony from the investigator that he issued a “be on the lookout” for the car containing Wright is not enough to satisfy the state’s burden, because there is no evidence that the deputy who actually stopped Williams received that information. Id. In fact, the investigator’s trial testimony suggested that the stop might have occurred prior to the “be on the lookout”: “I . . . basically put out some information for our officers to be looking for this vehicle as it was just seen in Blakely. A short time before I received the information a deputy with the Sheriffs Office found the vehicle, conducted a traffic stop.” (Emphasis supplied.) Simply put, the record is silent on whether the deputy stopped Williams’s car in response to the “be on the lookout” or for some other, unidentified reason. Given the absence of competent evidence on this point, we are constrained to find that the state did not meet its burden of showing the stop was legal, and we must view the stop as unconstitutional. Kazeem, 241 Ga. App. at 178 (1).

(c) Consequently, in ruling on the motion to suppress, the trial court was required to determine whether the challenged evidence was the product of the illegal stop or was sufficiently distinguishable so as to be purged of the taint from the initial illegality, see State v. Brown, 269 Ga. App. 875, 877 (605 SE2d 628) (2004), or whether it was subject to the inevitable discovery exception to the exclusionary rule. See Taylor v. State, 274 Ga. 269, 274 (3) (553 SE2d 598) (2001). (“[u]nder the inevitable discovery doctrine, if the [sítate can prove by a preponderance of the evidence that evidence derived from police error or illegality would have been ultimately or inevitably discovered by lawful means, then the evidence is not suppressed as fruit of the poisonous tree” (citation omitted)). The evidence on these points — testimony from Williams and various law enforcement officers and video recordings of the stop and the subsequent interviews of Williams and Wright at the sheriffs office — gives rise to factual questions and issues of credibility that we believe, from our review of the record, would be more properly decided by the trial court in this case. See Brown, 269 Ga. App. at 877 (finding it was for the trial court, rather than this Court, to judge the credibility of the witnesses and the weight of the evidence in determining the application of the exclusionary rule). But see generally Spence v. State, 281 Ga. 697, 700 (3), n. 11 (642 SE2d 856) (2007) (recognizing that under some circumstances appellate court may conduct exclusionary rule analysis even if trial court did not do so, if record is of amply sufficient detail and depth to allow appellate court to make that determination).

Accordingly, we vacate in part the order denying the motion to suppress and remand this case to the trial court for further findings of fact and conclusions of law pertaining to the application of the exclusionary rule in this case. See Brown, supra. See generally Agnew v. State, 298 Ga. App. 290, 292-293 (3) (680 SE2d 141) (2009).

Decided February 23, 2012

Reconsideration denied March 16, 2012

John G. Wolinski, for appellant.

5. Given our remand of this case for further proceedings on Williams’s motion to suppress, we do not reach his claims that he received ineffective assistance of trial counsel.

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

Phipps, P. J., and Andrews, J., concur.

On Motion for Reconsideration.

In a motion for reconsideration of our decision, Williams, among other things, expresses a concern that our ruling in Division 1 “ create [s] a law of the case principle that makes the whole exercise of remand pointless.” Certainly, if on remand the tried court determines that the evidence challenged by Williams properly was admitted at trial, then our ruling that “[t]he evidence presented at trial is sufficient to support Williams’s conviction” (emphasis supplied) will be dispositive of any further claims of insufficiency regarding that evidence. OCGA § 9-11-60 (h). But if on remand the trial court determines that some of that evidence should have been suppressed as the product of the illegal stop, and if the court determines that the failure to suppress that evidence necessitates a new trial in which the evidence is not admitted, then our ruling as to the sufficiency of the evidence presented at the first trial will have no relevance to the question of the sufficiency of different evidence presented at the new trial. See generally Bruce v. Garges, 259 Ga. 268, 270 (2) (379 SE2d 783) (1989) (law of the case rule applies where “the same parties and issues are involved and the evidentiary posture of the case remains the same”) (citation omitted). Instead, in such case, our sufficiency ruling in Division 1 will be relevant only to the issue of whether Williams may be retried. See Lively v. State, 262 Ga. 510, 512 (3) (421 SE2d 528) (1992).

Williams also expresses a concern that, on remand, the state might attempt to introduce new evidence in opposition to his motion to suppress, which he asserts would run afoul of principles of double jeopardy and collateral estoppel. But see Atkins v. State, 254 Ga. 641, 642 (331 SE2d 597) (1985) (remanding case to trial court for further proceedings on motion to suppress). Should anything occur on remand to implicate principles of double jeopardy or collateral estoppel, Williams’s arguments would be more properly addressed to the trial court at that time.

Motion for reconsideration denied.

Joseph K. Mulholland, District Attorney, Michael L. Bankston, Assistant District Attorney, for appellee.