author: Mikell, Judge.

text:
    A11A0631.
    LEWIS v. RITZ CARLTON HOTEL COMPANY, LLC et al.
    (712 SE2d 91)
   Mikell, Judge.

Ronald E. Lewis sued Ritz Carlton Hotel Company, LLC, and Bianca Celestin seeking damages for false imprisonment and malicious prosecution arising out of Lewis’s arrest at the Ritz Carlton in Atlanta and his subsequent prosecution for criminal trespass. The trial court granted Ritz Carlton’s and Celestin’s motion for summary judgment. Lewis appeals, arguing that material issues of fact remain for a jury. For the reasons set forth below, we find no error and affirm.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiffs case. Our review of an appeal from summary judgment is de novo.

So viewed, the evidence shows that in May 2006, Lewis flew to Atlanta to attend graduation ceremonies at Morehouse College, and he was picked up at the airport by his friend, Andre Patillo. Lewis and Patillo drove to the Ritz Carlton hotel. After Lewis checked in, Lewis left his bags in his room, the presidential suite, and he and Patillo went directly to the hotel’s club lounge where Lewis ordered a drink. Lewis began speaking loudly on his cell phone, and other patrons complained to the staff. When Lewis went to the bar for another drink the attendant told Lewis that she would not serve him because he appeared to be intoxicated. Lewis kept repeating his request to be served, and after another guest asked Lewis to “leave it alone,” Lewis told him to “sit his ass down” and stay out of his business. According to the concierge, Lewis made his point using “racially charged” language, after which several guests got up and left the lounge. Lewis deposed that he was not intoxicated, and stated that “if I laughed too loud, if I talked too loud” or if he told someone to “sit his ass down,” there was nevertheless no “yelling, screaming, no pushing, shoving, none of that. Nothing.”

Celestin, the hotel manager, received a call from security, who asked her to go to the club lounge. She went to the lounge, identified herself to Lewis as the hotel manager, and she asked Lewis to lower his voice. She later asked him to leave the lounge and go to his room. Lewis did not leave the lounge when asked, but he eventually went to his suite. Shortly thereafter, Lewis heard a loud knock at the door, and Patillo let a policeman and Celestin into the room. According to Lewis, the officer told him “[yjou’re either voluntarily like leaving the hotel, or I’m arresting you.” Lewis asked to give his side of the story, and when the officer was not interested, Lewis told the officer “since you’re taking that attitude, do what you think should happen.” The officer then handcuffed Lewis and escorted him out of the hotel and to his police car. According to Patillo, the police officer repeatedly insisted that Lewis get his belongings and leave the hotel before the officer arrested Lewis.

The arresting officer deposed that he was dispatched to the Ritz Carlton, where he spoke with managers who complained of an unruly guest who refused to leave. The officer accompanied management and hotel security to Lewis’s room, where he asked Lewis to leave the hotel. Lewis protested that he had done nothing wrong, and after Lewis refused to comply with several requests to leave, the officer arrested him and took him to jail on charges of criminal trespass. Lewis’s accusation for criminal trespass was subsequently nolle pressed with the notation “lack of probable cause.”

1. Lewis contends that material issues of fact remain for a jury on his claim of false imprisonment. We disagree.

The essential element of false imprisonment is an unlawful detention. “Arresting or procuring the arrest of a person without a warrant constitutes a tort, unless he can justify under some of the exceptions in which arrest and imprisonment without a warrant are permitted by law.” The overall legality of the warrantless arrest, including both probable cause and exigent circumstances, “is the decisive factor.” If Lewis’s detention was unlawful, the issue becomes whether Ritz Carlton and Celestin caused the arrest. “The party need not expressly request an arrest, but may be liable if his conduct and acts procured and directed the arrest.”

Lewis challenges the legality of his arrest for criminal trespass on two grounds. First, he contends that hotel management could not evict him from his hotel room without advance notice. Second, Lewis contends that a jury should consider whether his eviction by a police officer amounted to a criminal trespass warning. We find that both these arguments lack merit.

A hotel keeper may evict a guest without advance notice for cause, including failure to pay the bill, lack of reservations, failure to abide by the rules of occupancy or “other action by a guest.” Thus a hotel manager is entitled to terminate a room rental agreement without prior notice for, among other things, “creating a disturbance at the hotel.” Uncontradicted evidence showed that Lewis’s behavior caused customers to complain and to leave the club lounge and, although Lewis denied making certain particularly offensive comments to hotel staff, he admits telling another guest to “sit his ass down.” Accordingly, notwithstanding Lewis’s testimony as to the appropriateness of his behavior, Celestin had grounds to conclude that Lewis was causing a disturbance on the property. We find that Celestin, as the hotel manager, was accordingly authorized to evict Lewis for cause and was not required to give the advance notice contemplated by OCGA § 43-21-3.1 (a).

We also conclude that the officer’s instructions to Lewis constituted a criminal trespass warning.

A person commits the offense of criminal trespass when he or she knowingly and without authority: . . . Remains upon the land or premises of another person or within the vehicle, railroad car, aircraft, or watercraft of another person after receiving notice from the owner, rightful occupant, or, upon proper identification, an authorized representative of the owner or rightful occupant to depart.

Lewis’s own testimony shows that the officer notified Lewis to depart the hotel and that Lewis did not, in fact, depart. That the officer was acting with the authority and direction of Ritz Carlton and hotel management in notifying Lewis that he must leave the premises is also established by the evidence, including that the officer responded to a 911 call from the Ritz Carlton, that he was informed by hotel personnel that Lewis was unruly and refused to leave, and that Celestin and hotel security accompanied the officer to Lewis’s room.

“Probable cause is defined to be the existence of such facts and circumstances as would excite the belief in a reasonable mind, that the person charged was guilty of the crime for which he was arrested and prosecuted.” In light of the foregoing, including Lewis’s refusal to leave the hotel when instructed to do so by a police officer in the presence of hotel management, the “facts and circumstances [were] sufficient for a prudent person to believe [Lewis] committed [the] offense” of criminal trespass. Further, exigent circumstances authorized the warrantless arrest because “the offense [was] committed in such officer’s presence or within such officer’s immediate knowledge.” Accordingly, no issue of material fact remained as to the probable cause and exigent circumstances which authorized Lewis’s arrest on the charge of criminal trespass, and the trial court correctly granted summary judgment to Ritz Carlton and Celestin on Lewis’s false imprisonment claim.

Decided June 15, 2011

Daniel R. Meachum, for appellant.

2. We also find that the trial court properly granted summary judgment to Ritz Carlton and Celestin on Lewis’s claim of malicious prosecution. To establish malicious prosecution, Lewis was required to show, among other things, that Ritz Carlton and Celestin lacked probable cause to accuse him of criminal trespass. As shown by our analysis in Division 1, supra, the undisputed evidence established such probable cause. Lewis’s sole argument, without citation to supporting authority, is that a material issue of fact exists because the nolle prosequi stated that there was a lack of probable cause. The nolle prosequi was entered by the solicitor-general, and consented to by a state court judge. “Nolle prosequi is the State’s formal action on its decision not to further prosecute an [accusation].” Assuming that the solicitor-general’s decision to nolle pros the accusation is comparable to a dismissal of criminal charges, which may be considered as nonconclusive evidence of a lack of probable cause in a malicious prosecution action, we cannot conclude that the nolle pros, in itself, is sufficient to create an issue of material fact given, among other things, Lewis’s own testimony as to the events that led to his arrest.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

Gray, Rust, St, Amand, Moffett & Brieske, Jeffrey M. Wasick, for appellees.

       Lewis also asserted a count for false arrest, but he later abandoned that claim.

       (Citation, punctuation and footnote omitted; emphasis in original.) Adams v. Carlisle, 278 Ga. App. 777, 778 (630 SE2d 529) (2006).

       Lewis also denied making certain particularly offensive comments to hotel employees.

       See Collins v. Sadlo, 167 Ga. App. 317, 318 (306 SE2d 390) (1983).

       (Citations and punctuation omitted.) Ferrell v. Mikula, 295 Ga. App. 326, 330 (2) (672 SE2d 7) (2008).

       (Citation omitted.) Collins, supra at 320.

       (Citation and punctuation omitted.) Ferrell, supra.

       Georgia law provides:
      Whenever the keeper of a hotel, apartment hotel, boarding house, inn, or other accommodations furnished on a day-to-day or weekly basis wishes to terminate the occupancy of a guest for reasons other than those described in subsection (b) of this Code section, the keeper shall give notice of such intention to the guest. The period of time to be specified in the notice as to when the occupancy will be declared terminated by the keeper shall be equal to the period of time for which occupancy is paid for by the guest and accepted by the keeper.
      OCGA § 43-21-3.1 (a).

       OCGA § 43-21-3.1 (b). “The notice requirement of subsection (a) of this Code section shall not apply to a termination of occupancy for cause, such as failure to pay sums due, failure to abide by rules of occupancy, failure to have or maintain reservations, or other action by a guest.” Id.

       (Footnote omitted.) Johnson v. State, 285 Ga. 571, 574 (679 SE2d 340) (2009).

       Hotel policy authorized the removal of guests for conduct offensive or abusive to other guests or employees.

       See, e.g., Johnson, supra.

       OCGA § 16-7-21 (b) (3).

       Compare Jackson v. State, 242 Ga. App. 113 (528 SE2d 864) (2000) (criminal trespass conviction reversed due to a lack of evidence that the officer acted on behalf of the apartment manager in instructing the defendant not to enter the property).

       (Footnote omitted; emphasis in original.) Adams, supra at 782 (1).

       (Citation omitted.) Patterson v. State, 274 Ga. 713, 716 (2) (599 SE2d 472) (2002). See Arbee v. Collins, 219 Ga. App. 63, 66 (1) (463 SE2d 922) (1995) (undisputed evidence established probable cause to believe plaintiff committed criminal trespass); Mohamud v. Wachovia Corp., 260 Ga. App. 612 (580 SE2d 259) (2003) (same).

       OCGA § 17-4-20 (a). See Patterson, supra at 716 (2) (“when the arresting officer obtained [information giving rise to probable cause to believe that defendant committed criminal trespass] in [defendant’s] presence and outside [defendant’s] home, there was a sufficient exigent circumstance to justify a warrantless arrest”) (citation omitted).

       Lewis
      was required to prove that (i) [he] was prosecuted for a crimina! offense; (ii) the prosecution was instigated under a valid warrant, accusation, or summons; (iii) the prosecution terminated in [his] favor; (iv) [Ritz Carlton and Celestin] acted with malice in instigating the prosecution; (v) [Ritz Carlton and Celestin] lacked probable cause to accuse [Lewis] of the crime at issue; and (vi) [he] suffered damage as a result of the prosecution.
      (Footnote omitted.) Gooch v. Tudor, 296 Ga. App. 414, 416 (1) (674 SE2d 331) (2009). Although Ritz Carlton and Celestin may not have actively sought Lewis’s arrest and accusation, Lewis need only show that their “conduct resulted in the initiation of criminal proceedings against [him].” (Citation omitted.) Id. at 418 (1) (b).

       (Citation omitted.) Buice v. State, 272 Ga. 323, 324 (528 SE2d 788) (2000). See OCGA § 15-18-66 (b) (10) (solicitors-general have authority “[t]o enter a nolle prosequi on any accusation, citation, or summons filed and pending”).

        Melton v. LaCalamito, 158 Ga. App. 820, 824 (2) (b) (282 SE2d 393) (1981) (“While not conclusive, the dismissal of the charge is evidence that probable cause was lacking.”) (citation omitted). Accord Simmons v. Mableton Finance Co., 254 Ga. App. 363, 365 (2) (562 SE2d 794) (2002).

       Compare Melton, supra (“We find particularly persuasive the fact that the criminal charge against appellee was dismissed following a preliminary hearing at which essentially the same facts as were known to [defendant] when [plaintiff! was arrested were presented to a magistrate.”).


source: Caselaw Access Project

author: Ellington, Chief Judge.

license: Public Domain

text:
    A11A0755.
    SIMPSON v. THE STATE.
    (715 SE2d 675)
   Ellington, Chief Judge.

In 1988, a Fulton County jury found James Simpson guilty beyond a reasonable doubt of three counts of armed robbery, OCGA § 16-8-41 (a). The trial court sentenced him as follows: Count 1, 20 years imprisonment; Count 2, 20 years imprisonment, consecutive to the sentence on Count 1; Count 3, 20 years imprisonment, concurrent with the sentence on Count 2. In 2009, Simpson filed a “Motion to Set Aside Null and Void Conviction and Sentence.” The trial court denied the motion, and Simpson appeals, contending that the sentences are unlawfully consecutive. Simpson argues that the sentences impose multiple punishments “for the same offense” in violation of the prohibition of double jeopardy.

This argument lacks merit. Count 1 charged Simpson with robbing one victim on May 9, 1987, and Count 2 charged him with robbing the same victim again on May 28, 1987. Count 3 charged him with robbing a second victim on May 29, 1987. Although these three discrete transactions occurred in the same month and violated the same Code section, they do not constitute “the same conduct” under OCGA § 16-1-7 (a) (l). Booker v. State, 231 Ga. 598, 599 (1) (203 SE2d 194) (1974) (Where the defendant committed one armed robbery and, one week later, robbed a different victim at a different location, the armed robberies did not arise from “the same conduct.”); Syas v. State, 273 Ga. App. 161, 164 (2) (614 SE2d 803) (2005) (Where the defendant carjacked one victim and, three days later, robbed a different victim at a different location, the crimes did not arise from “the same conduct.”); Summers v. State, 263 Ga. App. 338, 340-341 (587 SE2d 768) (2003) (Where the defendant over a period of months unlawfully passed to an accomplice financial identifying information belonging to 35 different victims, the multiple counts of identity fraud did not arise from “the same conduct.”). Because Simpson’s sentence was within the statutory range and because the law allows separate and consecutive punishment for separate criminal transactions, the trial court did not err in denying Simpson’s motion. See Rooney v. State, 287 Ga. 1, 2 (2) (690 SE2d 804) (2010) (“A sentence is void if the court imposes punishment that the law does not allow.”) (citation and punctuation omitted).

Decided June 15, 2011.

James C. Simpson, pro se.

Paul L. Howard, Jr., District Attorney, Arthur C. Walton, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       See Rooney v. State, 287 Ga. 1, 2-3 (2) (690 SE2d 804) (2010) (An attack on a sentence as unlawfully consecutive may be made at any time by means of a motion to vacate a void sentence, and the denial of such a motion is directly appealable.); OCGA § 17-9-4 (A judgment that is void for any cause “is a mere nullity and may be so held in any court when it becomes material to the interest of the parties to consider it.”).

       OCGA § 16-1-7 (a) (1) provides that “[w]hen the same conduct of an accused may establish the commission of more than one crime,” the accused may not “be convicted of more than one crime if: . . . (ojne crime is included in the other.” OCGA § 16-1-6 provides that one crime is included in another when:
      (1) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or
      (2) It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.

       OCGA § 16-8-41 (b) (“A person convicted of the offense of armed robbery shall be punished by death or imprisonment for life or by imprisonment for not less than ten nor more than 20 years.”).

       OCGA § 17-10-10 (a) (“Where at one term of court a person is convicted on more than one indictment or accusation, or on more than one count thereof, and sentenced to imprisonment, the sentences shall be served concurrently unless otherwise expressly provided therein.”); Rooney v. State, 287 Ga. at 3-6 (3) (“[T]here is no constitutionally cognizable right to concurrent, rather than consecutive, sentences.” Under Georgia law, whether to impose consecutive or concurrent sentences for multiple offenses is within the trial court’s discretion, so long as the sentence for each offense is within the statutory limits.) (citations and punctuation omitted).


text:
    A11A0460.
    MARSHALL v. BROWNING.
    (712 SE2d 71)
   Mikell, Judge.

Marion Marshall appeals the trial court’s grant of summary judgment to police detective Silvia D. Browning in Marshall’s suit for malicious prosecution. We find that Browning was entitled to official immunity for her actions in pursuing Marshall’s prosecution for three counts of child molestation and one count of sexual battery. Accordingly, we affirm.

To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the evidence and all reasonable inferences and conclusions drawn therefrom, viewed in the nonmovant’s favor, warrant judgment as a matter of law. We review de novo the trial court’s ruling on a motion for summary judgment.

So viewed, the evidence shows that in 2005 Marshall was employed as an elementary school teacher. Browning, then a detective with the Roswell Police Department, received a referral from the Fulton County Department of Family and Children Services regarding allegations made by two female students in Marshall’s fourth grade class. Browning met with social worker Jennifer Bui, who indicated that two ten-year-old girls, J. M. and L. L., had separately reported that Marshall had asked them if he could touch them, that he had passed notes to the girls asking if he could touch them, that he had touched the girls, and that they felt uncomfortable about it. Bui also told Browning that in 2004 another student, ten-year-old A. S., had claimed that Marshall had conversations with her about trust and had touched her above the knee, but that A. S. had later recanted the allegations. Bui gave Browning a copy of her report, which included Bui’s notes, findings, written statements from J. M. and L. L., written statements from the children’s mothers, and Marshall’s written denials.

Less than a week after Browning met with Bui, separate forensic interviews were conducted with A. S., J. M., and L. L. According to Browning, who witnessed the interviews, A. S. described an incident where Marshall pulled her into a storage closet, lifted her up by the waist to sit her on a chair, and hugged her for a long time. When she started to walk away Marshall touched the child’s bottom with an open hand. During recess, Marshall told A. S. that he could lose his job and his family if she told anyone. A. S. went home and told her mother about the incident. A. S. admitted that she later changed her story but maintained that she did so because she was worried about Marshall losing his job and his family.

During J. M.’s interview, the child described a number of notes she exchanged with Marshall. In these notes Marshall inquired if he could touch her, and J. M. responded “yes.” J. M. did not realize what Marshall meant by his request until he touched her shoulder and rubbed her arm. She then wrote him that he could not touch her. Marshall told J. M. not to tell anyone about the notes or the questions he asked her. He also asked J. M. if he could trust her and asked her to write down if she could keep a secret.

In her interview, L. L. said that Marshall had touched her on the stomach, but that the touching may have been accidental. She also told the interviewer that Marshall had played with her fingers. L. L. reported that Marshall wrote her a note asking if he could touch her, and she answered “yes.” He also wrote her notes asking if she could keep a secret and how he could know he could trust her. After Marshall tapped the child on her chest with a pen, she told Marshall that he could not touch her. When L. L. was taking a test in the back of the class Marshall handed her a note asking her if she was sure that she did not want him to touch her. She wrote back, “yes.”

Three days after the children were interviewed Browning met with an assistant district attorney who, after being apprised of the facts, indicated that there was sufficient evidence to go forward with search and arrest warrants. Browning submitted affidavits to the magistrate and obtained search warrants for Marshall’s residence and his classroom as well as four arrest warrants charging Marshall with three counts of child molestation and one count of sexual battery.

Browning and other officers executed the search warrant at Marshall’s residence. Browning interviewed Marshall, who denied touching any of his students, denied discussing issues of trust or keeping secrets, and indicated that the allegations against him were a plot to get him in trouble. No physical evidence supporting the children’s allegations was found in Marshall’s home or on his computer. Marshall was arrested, taken to jail, and subsequently appeared before a magistrate judge and in superior court.

During the summer and fall of 2005, Browning met with the district attorney’s office on at least three occasions to discuss the case. Attorneys with the office performed their own investigation and determined that it did not appear that Marshall committed a felony offense. One of the attorneys, Eric Dunaway, deposed that, even assuming that the children were telling the truth, there was nevertheless insufficient evidence to present a felony charge to the grand jury. The district attorney’s office sent the case to the solicitor-general for consideration of a misdemeanor prosecution. The solicitor-general determined that there was insufficient evidence to successfully pursue misdemeanor charges against Marshall. Accordingly, Marshall was not indicted for a felony or accused of a misdemeanor.

Marshall claims that the trial court erred (i) in holding that there was probable cause for Marshall’s prosecution and (ii) in failing to hold that the prosecution of Marshall was with actual malice. We disagree because the evidence shows as a matter of law that Browning acted without actual malice for purposes of the threshold issue of her official immunity.

Malice is an element of malicious prosecution and may be inferred by a total lack of probable cause. Our initial inquiry, however, “is not whether [Browning] acted maliciously [for purposes of the tort of malicious prosecution], but. . . whether she acted with actual malice that would exempt her from official immunity.” Official or “qualified” immunity “protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption.” In Georgia, “a public officer may be personally liable only for ministerial acts negligently performed or for discretionary acts performed with malice or an intent to injure.”

We conclude, and Marshall does not dispute, that Browning, a police detective, was acting within her discretionary authority in investigating the case, obtaining search and arrest warrants, and in executing those warrants. “Unlike a ministerial act, a discretionary act calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.”

For purposes of official immunity,

actual malice requires a deliberate intention to do wrong and denotes express malice or malice in fact. Actual malice does not include implied malice, or the reckless disregard for the rights and safety of others. A deliberate intention to do wrong such as to constitute the actual malice necessary to overcome official immunity must be the intent to cause the harm suffered by the plaintiffs. Likewise, the phrase “actual intent to cause injury” has been defined in a tort context to mean an actual intent to cause harm to the plaintiff, not merely an intent to do the act purportedly resulting in the claimed injury. This definition of intent contains aspects of malice, perhaps a wicked or evil motive.

Applying the foregoing, we find that the evidence demands the conclusion that Browning acted without actual malice. There is no evidence that Browning was motivated by a personal animus toward Marshall. Nor is she accused of manufacturing evidence or knowingly presenting perjured testimony. By contrast, Browning met with a district attorney before seeking arrest and search warrants, and she submitted affidavits in support of the warrants consistent with the evidence uncovered by her investigation. Marshall nevertheless contends that a jury could infer her malice from the questionable nature of the evidence against him and in light of Browning’s calculated and considered decision to pursue his prosecution without probable cause that he committed a crime. Marshall also points to evidence that Browning was motivated by her subjective opinion of Marshall’s guilt, as opposed to the objective facts, and he asserts that Browning took actions, such as swearing out an arrest warrant before executing the search warrant, which she knew would expose Marshall to embarrassment and expense.

Although Marshall attacks the children’s statements as uncorroborated and lacking credibility, and he asserts that the forensic interviews were contaminated and suggestive, it is well established that a child’s uncorroborated testimony may serve as evidence of child molestation. Browning’s decision to believe the children’s accusations does not show actual malice toward Marshall.

Marshall also claims that Browning showed malice by proceeding with the prosecution notwithstanding that there was no probable cause to believe he had committed a crime. We have previously found that if a jury could make a reasonable inference that police officers arrested the plaintiff despite knowing that she did not commit the crimes for which they accused her, thereby deliberately intending to do a wrongful act, the officers were not entitled to summary judgment on her claims of wrongful prosecution and false arrest. On the other hand, we have concluded that where an officer’s decision to seek warrants might be characterized as “misguided” there was nevertheless no evidence that the actions were taken with actual malice for purposes of official immunity. Similarly, “[ajbsent malice or intent to injure, no liability attaches to the officer’s exercise of his lawful discretion even when the decision to effectuate the arrest is flawed.”

Given the facts of this case, we conclude that Browning’s considered decision to proceed with arrest and search warrants on the basis of the children’s statements cannot give rise to an inference that she acted with actual malice. A person commits the offense of child molestation when such person “[d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” In turn, “the law against child molestation . . . proscribed] acts which offend against the public’s sense of propriety as well as . . . afford[s] protection to a child’s body in those cases where the act or acts are more suggestive of sexually oriented misconduct than simply assaultive in nature.” The children’s claims, if taken as true, show that Marshall hugged a child for an extended period of time in a storage closet, touched her bottom with an open hand, rubbed another child’s arm, played with a child’s fingers and touched her in the chest, all in the context of the passing of notes about trust and requests that the children, Marshall’s students, not tell anyone about what Marshall was doing. Even assuming, for purposes of argument, that Browning was mistaken that the alleged acts rose to the level of child molestation, there was not such a lack of evidence of Marshall’s guilt that a trier of fact could infer that Browning pursued Marshall’s prosecution with the knowledge that he was not guilty and so intended to do wrong. In addition, Marshall’s alleged touching of A. S.’s bottom met the definition of sexual battery.

Marshall also points to evidence that Browning had acted on her subjective feelings, including a school employee’s averment that Browning had announced to people in the office that she “had been molested as a child and she could just tell that Mr. Marshall was guilty.” If Browning was motivated by her personal history and her perception that Marshall was guilty, this does not show an intent to do wrong. Moreover, Browning’s affidavits in support of the search and arrest warrants were based on her investigation, not her personal feelings. As to Browning’s decisions to execute the search and arrest warrants at the same time, to take Marshall to the Fulton County jail as opposed to the Roswell city jail, and to proceed with an arrest with knowledge of the embarrassment and expense that would inevitably ensue, Marshall fails to show that any of her actions were in violation of police procedure or were taken out of actual malice.

Decided May 13, 2011

Reconsideration denied June 16, 2011

England & England, J. Melvin England, for appellant.

Carothers & Mitchell, Richard A. Carothers, Michael E. Hobbs, for appellee.

This case falls well within the underlying rationale for official immunity, which is “to preserve the public employee’s independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.” Browning was presented with a difficult investigation, and a different investigator may have made choices more favorable to Marshall. Nevertheless, the evidence shows that Browning acted without actual malice, and she is therefore not subject to personal liability on Marshall’s claim for malicious prosecution.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

       (Footnotes omitted.) Valades v. Uslu, 301 Ga. App. 885, 886 (689 SE2d 338) (2009).

       Browning does not contend that a prosecution was not carried on for purposes of Marshall’s claim for malicious prosecution. See McNeely v. The Home Depot, 275 Ga. App. 480, 482 (621 SE2d 473) (2005) (evidence that plaintiff was brought before a judge raises an inference that he was taken before a committing court).

        See Anderson v. Cobb, 258 Ga. App. 159, 160 (2) (573 SE2d 417) (2002) (“courts must consider the issue of a government employee’s qualified immunity from liability as the threshold issue in a suit against the officer in his personal capacity”) (citation and punctuation omitted).

       See OCGA §§ 51-7-40; 51-7-43; 51-7-44.

       (Emphasis in original.) Anderson, supra.

       (Punctuation and footnote omitted.) Cameron v. Lang, 274 Ga. 122, 123 (1) (549 SE2d 341) (2001).

       (Footnote omitted.) Valades, supra at 890.

       See, e.g., Anderson, supra at 160-161 (2) (holding that a county detective’s decision to seek an arrest warrant was a discretionary act).

       (Citation and punctuation omitted.) Reed v. DeKalb County, 264 Ga. App. 83, 86 (589 SE2d 584) (2003) (official immunity applies to officer’s mistaken belief that arrest is appropriate).

       (Punctuation and footnotes omitted.) Selvy v. Morrison, 292 Ga. App. 702, 704-705 (665 SE2d 401) (2008).

       Compare Price v. Cobb, 63 Ga. App. 694, 696 (11 SE2d 822) (1940) (complaint for malicious prosecution alleged that solicitor-general instigated indictment by knowingly using false and perjured testimony).

       See, e.g., Daniel v. State, 296 Ga. App. 513, 515-516 (1) (675 SE2d 472) (2009) (refusing to overrule authority “that the uncorroborated testimony of a child victim is sufficient to support a child molestation conviction”) (footnote omitted).

        Bateast v. DeKalb County, 258 Ga. App. 131, 132-133 (572 SE2d 756) (2002).

        Todd v. Kelly, 244 Ga. App. 404, 407 (1) (535 SE2d 540) (2000) (“Although Officer Kelly’s actions in seeking warrants against Todd and Noble may have been misguided, there is no evidence that they were taken with actual malice”).

       (Citation omitted.) Reed, supra at 87.

       OCGA § 16-6-4 (a) (1).

        Chapman v. State, 170 Ga. App. 779, 780 (1) (318 SE2d 213) (1984).

       See OCGA § 16-6-22.1 (b) (“A person commits the offense of sexual battery when he or she intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person”). Buttocks are considered an intimate part of the body. See OCGA § 16-6-22.1 (a).

       (Footnote omitted.) Cameron, supra.


author: Blackwell, Judge.

text:
    A11A0037.
    In the Interest of Q. S., a child.
    (712 SE2d 99)
   Blackwell, Judge.

Q. S. participated in a vicious assault upon a classmate, and the juvenile court adjudicated her delinquent and ordered her into restrictive custody for 12 months. The adjudication of delinquency is based on findings that Q. S. committed acts that, if committed by anadult, would amount to aggravated battery, aggravated assault, and unlawful disruption of a public school. Q. S. appeals, contending that the evidence is insufficient to sustain the findings of delinquency and that the juvenile court erred when it ordered restrictive custody. We agree with Q. S. that the evidence is insufficient to sustain the findings of aggravated battery and unlawful disruption of a public school, and we reverse the adjudication of delinquency to the extent it is based on these findings. We think the evidence is sufficient, however, to sustain the finding of aggravated assault, so we affirm the adjudication of delinquency to the extent it is based on aggravated assault. Finally, we conclude that the juvenile court abused its discretion when it ordered restrictive custody based on a finding of fact that the evidence cannot sustain, and for this reason, we vacate the order of restrictive custody and remand for the juvenile court to consider again whether restrictive custody is warranted.

Viewed in the light most favorable to the adjudication below, the record shows that Q. S., then 15 years of age, and two other girls attacked and severely beat a classmate at Washington County High School. During the course of the altercation, Q. S. grabbed the victim by her hair, pulled her to the ground, and slammed the head of the victim against the floor. After the victim was on the ground, her three assailants kicked her, struck her with their fists, and pulled her hair. The assault ended when teachers and other students intervened, pulling Q. S. and the other two girls away from the victim.

Following the assault, the victim had a bloody lip and nose, she complained of a headache and dizziness, and she required assistance to stand and walk. Her face later began to swell, and knots appeared on her head, as well as a number of bruises. The victim was taken by her mother to a local hospital, where she underwent a computed tomography (CT) scan. The results of this scan prompted physicians to order magnetic resonance imaging (MRI) of her brain, and this imaging revealed a preexisting brain tumor, located in the area where spinal fluid flows between the brain and spinal column. Her physicians then sent her to the Medical College of Georgia, where surgeons removed the tumor. The victim suffered complications following the initial surgery, which led to several additional surgical procedures to treat these complications. Since these surgeries, the victim has suffered from significant short-term memory loss and other impairments of her cognitive abilities.

At the hearing below, the State attempted to prove that the assault had somehow affected the preexisting tumor and rendered immediate surgery necessary and that the assault, therefore, was a cause of the resulting memory loss and cognitive impairment. The neurosurgeon who testified, however, said that it was impossible to know what effect, if any, the assault had on this tumor. Although the surgeon admitted it was possible that the assault had a “direct effect” on the tumor, he said it was just as likely that the assault had no effect at all. Moreover, there is no evidence that an immediate surgery was necessitated by the assault. In fact, the surgeon said that surgical removal of the tumor was inevitable because, considering the location of the tumor, the victim would not have lived a long life — perhaps only five more years — without surgical removal. The surgeon opined that it was fortuitous for the victim that the tumor was discovered when it was, inasmuch as the discovery of the tumor allowed its removal before the victim was afflicted with more serious symptoms.

Based on this record, the juvenile court found that Q. S. had committed acts that, if committed by an adult, would amount to aggravated battery, aggravated assault, and unlawful disruption of a public school, and the court adjudicated Q. S. delinquent. The court then considered the factors set forth in OCGA § 15-11-63 (c) and concluded that restrictive custody is warranted, ordering Q. S. into restrictive custody for 12 months. Q. S. now appeals from the adjudication of delinquency and her placement in restrictive custody.

1. We first consider the sufficiency of the evidence of delinquency. To establish delinquency based on acts of a criminal nature, the State must prove the commission of these acts beyond a reasonable doubt, just as it would in a criminal prosecution of an adult for the same acts. See In the Interest of A. A., 293 Ga. App. 827, 828 (668 SE2d 323) (2008). So, when a juvenile challenges the sufficiency of the evidence, we apply the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and we consider whether the evidence adduced at the hearing would permit a rational trier of fact to conclude beyond a reasonable doubt that the juvenile committed the acts with which she is charged. See In the Interest of A. A., 293 Ga. App. at 828; see also In the Interest of J. C., 308 Ga. App. at 337. In considering the sufficiency of the evidence, we construe the evidence in the light most favorable to the adjudication below, keeping in mind that it is for the trier of fact, not this Court, to weigh this evidence, resolve any conflicts in the evidence, and assess the credibility of witnesses. See In the Interest of A. A., 293 Ga. App. at 828; see also Ferguson v. State, 307 Ga. App. 232, 233 (1) (704 SE2d 470) (2010).

(a) Aggravated Battery. One commits aggravated battery under Georgia law when she maliciously causes another to suffer bodily harm involving, among other things, a deprivation of a member of the body. OCGA § 16-5-24 (a). In this case, the State asserts, and the juvenile court found, that Q. S. deprived the victim of her brain, inasmuch as the victim suffered from short-term memory loss and impairment of her cognitive abilities after the assault. See Miller v. State, 275 Ga. 730, 732 (1) (571 SE2d 788) (2002) (“When the evidence shows that a battered victim has suffered a severe injury to their brain, resulting in the loss of normal brain functioning, they are said to have been ‘deprived of their brain,’ thus suffering an aggravated battery.”); Scott v. State, 243 Ga. App. 383, 384-385 (1) (b) (532 SE2d 141) (2000) (evidence that blows to head of victim caused memory lapses and permanent nerve damage is sufficient to sustain aggravated battery conviction). We agree that the evidence supports a finding that the victim suffered a loss of normal brain function following the assault, but we conclude that the evidence does not prove beyond a reasonable doubt that this loss of normal brain function was proximately caused by the assault that Q. S. and her accomplices committed.

For purposes of aggravated battery, one causes another to suffer an injury when her conduct is a “proximate cause” of the injury, or, put another way, a cause that, “in a natural and continuous sequence, unbroken by any efficient intervening cause, produces [the] injury, and without which the [injury] would not have occurred.” State v. Jackson, 287 Ga. 646, 648 (2) (697 SE2d 757) (2010) (citation and punctuation omitted). “In a criminal case, proximate cause exists when the accused’s act or omission played a substantial part in bringing about or actually causing the victim’s injury . . . and the injury . . . was either a direct result or a reasonably probable consequence of the act or omission.” Chaney v. State, 281 Ga. 481, 482 (1) (640 SE2d 37) (2007) (citation and punctuation omitted). So, to prove aggravated battery in this case, the State was required to prove beyond a reasonable doubt that the assault committed by Q. S. and her accomplices “played a substantial part in bringing about” the loss of normal brain function for the victim and that the loss of normal brain function “was either a direct result or a reasonably probable consequence” of the assault.

The State does not appear to dispute that the victim suffered from short-term memory loss and cognitive impairment only after the surgeries to remove her tumor and treat complications of the removal of the tumor, but the State contends that the assault affected the tumor and rendered these surgeries necessary. The evidence, however, simply does not support this contention. The only witness to testify about the effect of the assault upon the tumor was the neurosurgeon, and he said that it was as likely as not that the assault had no effect at all upon the tumor. The neurosurgeon also pointed out that the surgical removal of the tumor was inevitable and that, without it, the victim would not have lived a long life. And the neurosurgeon added that the sooner the surgery was performed, the better for the victim. The State points to evidence that the victim complained of a headache and dizziness soon after the assault and before any surgeries as evidence that the assault affected the tumor, but there was no testimony that dizziness is a symptom of such a tumor, and as to the headache, the neurosurgeon said that the appearance of this symptom suggested a possibility that the assault affected the tumor, “but it’s also equally possible” that it did not. No rational trier of fact could conclude beyond a reasonable doubt from this evidence that Q. S. and her accomplices caused the short-term memory loss and cognitive impairment that the victim has suffered, and for this reason, it does not sustain the finding of aggravated battery. See Doomes v. State, 261 Ga. App. 442, 442 (1) (583 SE2d 151) (2003) (no evidence that gunshot to arm caused victim to lose use of his legs); see also Kilgore v. State, 95 Ga. App. 462, 465-467 (3) (98 SE2d 72) (1957) (insufficient evidence that blow to head, as opposed to brain tumor, caused death of victim). We, therefore, reverse the adjudication of delinquency to the extent it is premised on a finding of aggravated battery.

(b) Aggravated Assault. One commits aggravated assault under Georgia law when he assaults another with, among other things, a deadly weapon. OCGA § 16-5-21 (a) (2). Although hands and feet are not deadly weapons per se, they “can become such instruments when used to strike another.” In the Interest of T. W., 280 Ga. App. 693, 694 (634 SE2d 854) (2006). Whether hands or feet constitute a deadly weapon in a particular case is a question for the trier of fact, considering all the relevant circumstances, including the way in which the hands or feet were used and the injuries actually suffered by the victim. See Jones v. State, 294 Ga. App. 564, 566 (1) (669 SE2d 505) (2008); Richards v. State, 222 Ga. App. 853, 854 (1) (476 SE2d 598) (1996).

We think the evidence in this case is sufficient to permit a rational trier of fact to conclude beyond a reasonable doubt that Q. S. and her accomplices committed an aggravated assault upon the victim. The evidence shows that Q. S., using her hands, grabbed the victim by the hair, pulled her to the ground, and slammed the head of the victim upon the ground. All three assailants then used their feet to kick the victim as she lay curled upon the floor. And as a result of the assault, the lip and nose of the victim were bloodied, her face was bruised and began to swell, she was missing hair that had been pulled from her scalp, she was unable to stand or walk without assistance, and she complained of a headache and dizziness. These injuries were serious enough to prompt her mother to take her to a hospital and serious enough for medical personnel to order a CT scan. The evidence is sufficient to sustain the finding of aggravated assault. See Jones, 294 Ga. App. at 566 (1) (evidence that defendant beat victim with hands, causing facial swelling, blood on the face, and a fractured facial bone, is sufficient to sustain aggravated assault conviction); Scott v. State, 243 Ga. App. 383, 385 (1) (d) (532 SE2d 141) (2000) (evidence that defendant beat victim about head and face with hands is sufficient to sustain aggravated assault conviction); Richards, 222 Ga. App. at 854 (1) (evidence that defendant choked victim with hands, until the victim lost consciousness, “was unquestionably sufficient” to sustain aggravated assault conviction). Consequently, we affirm the adjudication of delinquency to the extent it is based on a finding of aggravated assault.

(c) Unlawful Disruption of Public School. At the time of the assault in this case, it was “unlawful for any person to disrupt or interfere with the operation of any public school.” OCGA § 20-2-1181 (2008). Q. S. contends that the evidence does not sustain the finding that she unlawfully disrupted a public school because, although the evidence shows that the assault occurred on the premises of Washington County High School, there was no evidence that Washington County High School is a “public school.” We agree.

Proof that the school disrupted is, in fact, a public school is an essential element of proving a violation of OCGA § 20-2-1181, and like every other essential element, it must be proven beyond a reasonable doubt. See In the Interest of J. B., 289 Ga. App. 617, 618 (658 SE2d 194) (2008). The State concedes that there is no direct evidence here that Washington County High School is a public school. The State argues, however, that a rational trier of fact could infer that it is a public school from the fact that “Washington County” appears in the name of the school. That the name of a county or municipality appears within the name of a school might suggest that the school is operated by the county or municipality, but we do not think it proves beyond a reasonable doubt that the school is a public one. And although the juvenile court might have taken judicial notice that Washington County High School is a public school, it could not without first announcing its intent to do so and affording the parties an opportunity to be heard on the question, which the court below did not do. In the Interest of J. A. L., 284 Ga. App. 220, 220 (1) (644 SE2d 162) (2007). We, therefore, must reverse the adjudication of delinquency to the extent it is premised upon a finding of unlawful disruption of a public school.

2. We now turn to the contention that the juvenile court abused its discretion when it determined that restrictive custody is warranted. When a child is found to have committed a designated felony act, such as aggravated assault, the juvenile court is authorized to order restrictive custody under OCGA § 15-11-63. A finding that restrictive custody is warranted must be supported by a preponderance of the evidence. OCGA § 15-11-63 (b). And to determine whether restrictive custody is warranted, the juvenile court must consider and make written findings about these factors: (1) the needs and best interest of the child; (2) the record and background of the child; (3) the nature and circumstances of the offense, including whether any injury sustained by the victim was actually inflicted by the child or another; (4) the need to protect the community; and (5) the age and physical condition of the victim. OCGA § 15-11-63 (c). The weight to be accorded each factor, and the ultimate decision about whether restrictive custody is warranted, is committed to the sound discretion of the juvenile court. See In the Interest of I. C., 300 Ga. App. 683, 686 (2) (a) (686 SE2d 279) (2009); In the Interest of L. J., 279 Ga. App. 237, 240 (630 SE2d 771) (2006).

With respect to the third factor, the juvenile court noted the vicious nature of the assault and the serious injuries that the victim sustained and, based on these things, concluded that the third factor weighs heavily in favor of restrictive custody. We agree that the evidence shows an especially vicious assault and that the victim sustained serious injuries as a result. But the juvenile court seemed to focus most on one particular injury, the short-term memory loss that the victim has suffered since her surgeries. As we discuss in Division 1 (a), however, the evidence does not support a finding that this particular injury was proximately caused by the assault, rather than by the surgical removal of the preexisting brain tumor or the complications and additional surgeries that followed. Because it appears that the juvenile court relied substantially on a finding of fact that is not sustained by the evidence in its analysis of the third factor, we must conclude that the trial court abused its discretion. See State v. Pickett, 288 Ga. 674, 679 (2) (d) (706 SE2d 561) (2011) (an abuse of discretion occurs where “the trial court significantly misapplies the law or clearly errs in a material factual finding”). And as a result, we must vacate the order of restrictive custody and remand for the juvenile court “to exercise its discretion again, using properly-supported factual findings,” inasmuch as the evidence here would sustain, but does not demand absolutely, a finding that restrictive custody is warranted. Id. at 680 (2) (d) (where a discretionary ruling of a trial court is premised on unsupported factual findings or a misapplication of the law, an appellate court cannot affirm that holding unless it concludes that, if the trial court had correctly found the facts and correctly applied the law, it would have had no discretion to reach a different judgment).

Decided June 16, 2011.

H. Brannen Bargeron, for appellant.

S. Hayward Altman, District Attorney, Mary K. McKinnon, Assistant District Attorney, for appellee.

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

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

       OCGA § 16-5-24 (a).

       OCGA § 16-5-21 (a) (2).

       OCGA § 20-2-1181.

       Q. S. also contends that the statute prohibiting the disruption of a public school, OCGA § 20-2-1181, is unconstitutional. For other reasons, we reverse the adjudication below to the extent it is based on a violation of this statute, see Division 1 (c), infra, so we need not reach the constitutional issue.

       See In the Interest of J. C., 308 Ga. App. 336, 337 (708 SE2d 1) (2011).

       Both Q. S. and the other two girls later admitted that they had participated in the assault. The principal of their school testified that, when he spoke with Q. S. immediately after the assault, Q. S. admitted punching the victim, ostensibly because the victim “got in her face.’’ And Q. S. gave two written statements about the assault, admitting in each that she hit the victim.

       A physician estimated that this tumor had been growing for as long as ten years before the assault.

       More specifically, the victim developed hydrocephalus, a condition that involves an excessive accumulation of spinal fluid in the brain. The additional surgical procedures required by this condition involved the placement of shunts to drain excess spinal fluid.

       The surgeon explained that, without surgery, the tumor eventually would have obstructed the flow of spinal fluid, which would have caused the victim to lapse into a coma and eventually die.

       Notably, the State never asked the neurosurgeon whether the short-term memory loss and cognitive impairment were a result of the assault, the tumor, the surgery to remove the tumor, the hydrocephalus, or the later surgeries to treat the hydrocephalus. The evidence is undisputed, however, that the victim did not show these symptoms until after the surgical procedures. Her principal testified that, immediately after the assault, the victim was able to recall the events leading up to the assault, and in fact, the victim began to prepare a written statement about the assault, although she stopped before completing it because she had a headache. When she was treated at the local hospital and at the Medical College of Georgia before her initial surgery, the victim appeared alert and responsive. And her mother testified that, immediately after the assault, the victim was able to recall the details of the assault and that her memory problems did not appear until after she underwent surgery. Although the State argued below, and the juvenile court apparently found, that the mother said the victim experienced memory loss in the hospital emergency room, we have carefully searched the record and can find no such testimony in it, and it appears that the State no longer disputes that the memory loss and cognitive impairment appeared only after the surgeries.

       The statute was amended in 2010 to prohibit only “knowingly, intentionally or recklessly” disrupting or interfering with the operation of a public school. The old version of the statute, however, applies to conduct occurring before May 27, 2010, including the incident at issue here. See Ga. L. 2010, p. 518, § 4.

       We note that, according to its website, the Georgia Independent School Association includes many nonpublic schools with names that incorporate the name of a county or municipality, including Athens Academy, Atlanta Girls’ School, Atlanta International School, Atlanta Speech School, Augusta Preparatory Day School, Bulloch Academy, Chatham Academy Crisp Academy, LaGrange Academy, Savannah Country Day School, Terrell Academy and Twiggs Academy Georgia Independent School Association, Member Schools (http://www.gisa-schools.org/) (visited May 27, 2011).

       When a juvenile court orders restrictive custody, the child must be placed in the custody of the Department of Juvenile Justice for an initial period of five years, must be confined in a youth development center for a time certain, initially not less than 12 months and not more than 60 months, and must he placed under intensive supervision for 12 months thereafter. See OCGA § 15-11-63 (e). The order of restrictive custody in this case, which included the placement of Q. S. in a youth development center for 12 months, is consistent with these statutory requirements.

       We recognize that, for the purpose of the restrictive custody analysis, the trier of fact is only required to find facts by a preponderance of the evidence. OCGA § 15-11-63 (b). Under the preponderance standard, to sustain a finding that the assault caused the victim to suffer memory loss, the evidence, viewed in the light most favorable to the findings of the court below, must show that the assault more likely than not played a substantial part in bringing about the memory loss. See Bourjaily v. United States, 483 U. S. 171, 176 (107 SC 2775, 97 LE2d 144) (1987); State v. Rocco, 255 Ga. App. 565, 566 (566 SE2d 365) (2002). Here, however, the only evidence regarding the cause of the memory loss is the testimony of the neurosurgeon, who said it was only as likely as not that the assault somehow affected the brain tumor, thereby necessitating immediate brain surgery. The finding that the assault caused the victim to suffer memory loss, therefore, cannot be sustained. We note, however, that the evidence would support a finding that the assault caused the victim to sustain numerous other serious injuries.


author: Barnes, Presiding Judge.

text:
    A11A0044.
    CRIDDLE v. THE STATE.
    (712 SE2d 569)
   Barnes, Presiding Judge.

William Gerald Criddle appeals his conviction of driving under the influence (DUI), arguing that the trial court erred in denying his motion to suppress because he was arrested outside the jurisdiction of the arresting officer. Because the trial court did not err in denying the motion, we affirm.

In ruling on a motion to suppress, the trial court acts as factfinder and may believe or disbelieve any testimonial evidence. State v. Rowell, 299 Ga. App. 238 (682 SE2d 343) (2009). We accept the trial court’s factual findings and consider the evidence on appeal in the light most favorable to the court’s ruling. Id. at 239. So construed, the evidence before the court during the motions hearing was that a Holly Springs police officer responded to a call regarding a possible DUI on Hickory Road. When the officer arrived at the address given, he saw Criddle’s pickup truck half on his driveway and half off, with his rear wheels hanging over an embankment next to the driveway. The center of the truck’s undercarriage was stuck on the crest of the embankment, at the bottom of which was Hickory Road. Criddle was standing outside the truck and had cuts and blood on his head and hands, red glassy eyes, a strong odor of alcohol on his breath, and was very unsteady on his feet. He told the officer that he had been backing out of his driveway and went too far. His truck became stuck and the front wheels spun when he tried to pull forward back onto his driveway. He got out of his truck to look and rolled down the embankment into a ditch. A passerby who saw Criddle fall stopped to help him up, called 911, and waited with him until the police arrived. The officer read Criddle his implied consent rights and charged him with DUI after he tested positive for alcohol. Responding fire department personnel drew blood at the scene.

Criddle moved to suppress any evidence obtained as a result of his arrest, arguing that the officer arrested him outside the city limits, which was outside his jurisdiction. At the motions hearing, Criddle and the State stipulated that Criddle’s house and property were located in Cherokee County just outside the Holly Springs city limits, and that Hickory Road was located within the city limits. A second officer testified that he was concerned about the truck because Hickory Road was located at the base of the embankment. A tow truck was required to pull Criddle’s truck back onto his driveway. The State presented evidence that power poles were usually placed at the edge of the right-of-way, and it appeared that the truck was halfway on the bank within the Hickory Road right-of-way. Neither officer was sure whether the embankment was located within Hickory Road’s right-of-way, so the trial court left the evidence open for the parties to submit further evidence in that regard, and then held another hearing.

At the second hearing, the parties stipulated to the admissibility of three exhibits: pictures of the scene, a map of the area, and a letter from the Cherokee County Director of GIS & Mapping. The director stated that Criddle’s property was located within unincorporated Cherokee County, and the portion of Hickory Road in front of the property was located within the Holly Springs city limits. The road had a 100-foot right-of-way, within which the city had jurisdiction, he concluded. Criddle agreed that a 100-foot right-of-way extended from Hickory Road, but argued that the State had failed to show exactly where the right-of-way ended on Criddle’s property and thus failed to establish that the arresting officer had jurisdiction based on the location of the truck.

The trial court examined the photographs, tax maps, and plats, and found that, while this incident was not an “accident,” Criddle had left the vehicle in a precarious dangerous situation that had to be dealt with by law enforcement officers. The truck could not be moved under its own power and the intoxicated driver could not deal with it properly. The court further found that the back half of the truck was located within Hickory Road’s right-of-way, the edge of which ran along the crest of the hill on which the truck was hung.

Decided June 16, 2011.

Sharon L. Hopkins, for appellant.

David L. Cannon, Jr., Solicitor-General, Susan M. Zereini, Assistant Solicitor-General, for appellee.

Criddle argues on appeal that the trial court erred in denying his motion to suppress because the State failed to prove without a reasonable doubt that his truck was located within the city right-of-way. Our Constitution generally limits the jurisdiction of police to the county or municipality by which the officer is employed. Ga. Const, of 1983, Art. IX, Sec. II, Par. Ill (b); see also OCGA § 17-4-23 (a). If a crime occurs on a boundary line between city and county, however, jurisdiction is proper in either venue. See Lee v. State, 84 Ga. App. 12, 14 (65 SE2d 459) (1951) (evidence that house in which killing occurred was located in two counties was sufficient to establish jurisdiction in either county). Further, if the evidence does not show the exact location of a boundary line, the line may be established from circumstances and tradition. Shuman v. State, 84 Ga. App. 585, 587 (1) (66 SE2d 152) (1951) (county line had never been surveyed, but testimony about “tradition” sufficient to establish venue). Here, the State presented evidence that the city right-of-way extended 100 feet from the road and introduced pictures of the truck and a map of the area. This evidence was sufficient to allow the trial court to make a factual finding that a portion of Criddle’s truck was located within that right-of-way when he was arrested. Therefore, the trial court did not err in concluding that the Holly Springs police officer was authorized to arrest Criddle for driving under the influence, and in denying Criddle’s motion to suppress.

Judgment affirmed.

Adams, J., concurs. Blackwell, J., concurs in judgment only.


text:
    A11A0088.
    WRIGHT v. THE STATE.
    (712 SE2d 105)
   Mikell, Judge.

In 1994 a Fulton County grand jury indicted Tyrone Terrell Chambers and George Bernard Wright for committing twelve offenses against four women: rape, aggravated sodomy, kidnapping, and armed robbery of K. M. (Counts 1 through 4); rape, armed robbery, and kidnapping of B. J. C. (Counts 5 through 7); armed robbery of A. C. (Count 8); and rape, aggravated sodomy, kidnapping, and aggravated assault of K. W. (Counts 9 through 12). Chambers entered a guilty plea and testified against Wright at trial. Evidence collected from B. J. C. and K. W. after the rapes matched Chambers’s DNA. Although no DNA evidence linked Wright to the rape of B. J. C., the state’s DNA expert testified that Wright could not be eliminated as the source of the semen found in the sample received from K. W because two of the five “markers” exhibited a matching pattern, and the frequency of that pattern in the African-American population was approximately one in sixty thousand. On April 12, 1995, Wright was convicted on all counts and was given three life sentences, to run concurrently, plus four 20-year terms.

In 2006, Wright filed a motion pursuant to OCGA § 5-5-41 (c) for post-conviction DNA testing of the sample obtained from K. W. in light of new technology developed since the time of trial. The trial court granted the motion, and testing performed by the Georgia Bureau of Investigation (GBI) revealed that Wright could not have been the donor of the semen sample recovered from K. W and admitted in evidence at trial. Op July 23, 2009, Wright, proceeding pro se, filed an extraordinary motion for new trial on the basis of newly discovered evidence. Following a hearing at which Wright represented himself, the trial court granted the motion as to Counts 9 through 12 of the indictment, relating to K. W, but denied the motion as to the remaining counts. We granted Wright’s application for discretionary appeal to consider his argument that the trial court erred in denying his request for a new trial as to Counts 1 through 8 of the indictment. Because the new evidence is not so material that it would probably produce a different verdict on those counts, we affirm.

I. The Legal Standards

[To prevail on] an extraordinary motion for new trial, the movant must satisfy the trial court (1) that the evidence came to his knowledge after the trial; (2) that the delay in acquiring the evidence was not the result of lack of due diligence; (3) that the evidence is so material that it would probably produce a different verdict; (4) that the evidence is not merely cumulative; (5) that the witness’s affidavit is provided or its absence explained; and (6) that the evidence does not operate solely to impeach the credibility of a witness.

Moreover, “[s]uch motions are not favored, and a stricter rule is applied for an extraordinary motion for a new trial based on the ground of newly available evidence than to an ordinary motion on that ground.” A trial court’s ruling on such a motion “will not be reversed unless it affirmatively appears that the court abused its discretion.”

In the case at bar, the only issue is the third factor. The trial court ruled that the DNA evidence was not so material that it would probably produce a different verdict on Counts 1 through 8 of the indictment. Wright argues that the evidence at trial demonstrated that the same two perpetrators committed all the offenses by a unique method; therefore, DNA evidence excluding him as K. W.’s rapist necessarily excluded him as the perpetrator of the offenses against the other three victims. The state counters that there is compelling evidence of Wright’s guilt of the remaining crimes, particularly evidence that Wright’s fingerprints matched latent impressions lifted from K. M.’s car. Consideration of this argument necessitates careful examination of the evidence adduced at trial, viewed in the light most favorable to the verdict.

II. The State’s Evidence

A. The Victims’ Testimony

(i) K. M. On February 28, 1992, K. M. testified that she was walking from her office at Campus Crusade for Christ to her car at 4:00 a.m., when Chambers, wearing a skull cap, and the other assailant, wearing a ski mask, forced her to get into her car. The taller assailant kept a gun pointed at K. M. and threatened to kill her unless she cooperated.

After driving around for about ten minutes, the assailants stopped the car on Interstate 85 South and ordered her out of the back seat and into the driver’s seat. The taller assailant said that he had been in jail before, was not going back, and was just a victim of society. K. M. testified that he kept saying, “I’m not going to fucking jail and no fucking cop is ever going to make me go back. . . . You’re not my mama, you’re not my sister, you’re not my aunt[i]e, I don’t love you and I can fucking kill you so you better cooperate.” As instructed, K. M. drove to her bank in Union City and withdrew money from the ATM. Afterward, the assailants made her lie down in the back seat of the car, facing the seat, and put a ski mask over her head. They stopped at an apartment complex, and the taller man instructed K. M. to act as if she were his girlfriend and put her arm around him. She took off her mask so she could see. The men walked her to a grassy area at the back of the complex. The taller man unzipped his pants, pushed her head down, and forced her to “suck his penis.” K. M. kept gagging, however, and this assailant swore at her, said it “was too fucking cold outside,” and both men took her back to the car. The taller assailant got in the back seat with K. M. and told her to take off her clothes. She took off her sweater and bra, and he tried to kiss her and fondled her breasts. Then the assailants moved the car to a darker area of the parking lot and made K. M. take off her pants. The taller assailant tried to rape her, but she fought him; he called her a “bitch” and said she “better spread them apart” or they would kill her. The assailant’s penis would not penetrate K. M.’s vagina because she was wearing a tampon; he made her pull it out and throw it on the ground. Still, he could not penetrate K. M.; while calling her “bitch,” he spit on her vagina and forced his fingers inside her, whereupon he finally was able to rape her.

Chambers, who held the gun, kept telling this assailant, “hurry up, I want some pussy, too.” Chambers then forced her to “suck his penis” and raped her. The other assailant yelled at Chambers because he ejaculated. The men put K. M. in her car and drove to a parking lot. The taller assailant used a crowbar to tear out her car stereo and instructed Chambers to wipe off the car’s interior to get rid of fingerprints. The assailants stole other items from the car as well. They told K. M. to stay in the car for five minutes after they left, and they threatened to kill her if she told anyone about the attack.

K. M. testified on cross-examination that the ordeal lasted two or three hours and that she observed both men during that time. She was unable to identify Wright’s picture in photographic lineups. However, K. M. identified Chambers and Wright as her assailants at the preliminary hearing held on January 19, 1994. K. M. also identified Wright in court as the taller man who raped her.

(ii) B. J. C. On March 4,1992, B. J. C., who worked at Morehouse College, testified that when she returned home from a basketball game shortly after midnight, she was accosted by two African-American males wearing ski masks as soon as she stepped out of her rental car. The men shoved B. J. C. into the back seat of her car; the taller assailant kept calling her “bitch,” yelling other obscenities at her, and threatening to kill her. The taller man got in the back seat, while Chambers drove. The men demanded $500 but B. J. C. only had $45. They stopped the car, shoved her in the front seat, put a ski mask over her head, and told her to put her head between her legs. As they were driving around, B. J. C. asked where they were going. Chambers told her to “shut up or he would shoot my mother fucking head off.” She kept quiet. Meanwhile, the taller assailant had gotten out of the car, and it seemed to B. J. C. that Chambers was driving her around an apartment complex, because they kept going over speed breakers. After about 30 minutes, Chambers stopped the car on a grassy area. The taller assailant was waiting. B. J. C.’s face was completely covered, and the assailant put his hands around her waist and walked her over to a brick patio. She saw the patio, as well as sliding glass doors, when she took off her clothes and faced the wall, as instructed by the taller assailant. B. J. C. asked whether he planned to sodomize her, and he replied, “No.. . . I just fuck.” B. J. C. pleaded with the taller assailant not to rape her and offered him her diamond rings. He took her jewelry and then ordered her to get on her knees and “suck his dick.” When she refused, the assailant raped her. During the assault, he asked her to uncover her breasts, kiss him, and “give him tongue.” She refused and started screaming. After the taller assailant was done, Chambers raped B. J. C.

The assailants drove B. J. C. to ATMs at two different banks, but her bank card would not work at either one. At some point, the taller assailant told her that he had been to jail and was a victim of society, and that they were not rapists; they were robbers. Finally, the assailants left. B. J. C. never looked at her attackers during the ordeal and was unable to describe them to the police, except in general height and weight.

(iii) A. C. On March 9, 1992, A. C., a postal worker, arrived at home sometime after leaving her job at 12:30 a.m. and was accosted by two men wearing ski masks as she got out of her car. One of the men brandished a silver gun with a pearl handle. A. C. screamed, fell, and dropped her purse; the men said, “bitch, shut up,” and told her to get in her car. A. C. struggled with the men as they tried to push her into her car, and the ski mask of the man whom she described as darker complected came off during the struggle. She testified: “I looked him dead in the eyes, he looked me in the eyes. He said, ‘man, she saw me.’ ” The assailant put a ski mask over her head and shoved her into the back seat. The men drove around the corner, where the darker-complected man got into another car. One of the assailants cocked the gun at her head and said, “Bitch, I don’t give a fuck about you. You’re not my mother. You’re not my sister. I ought to put you in the river.” The darker-complected man came out, fired the gun, and said, “Do what we say or you will die.”

The assailants drove around and eventually stopped on Old National Highway. They took A. C. to an ATM, where she made three withdrawals totaling $500. A. C. dropped the first two receipts on the ground but gave the men all of the money as well as the receipt for the final $100 withdrawal. The darker-complected man began conversing with A. C., asking what church she attended and commenting on the Mahalia Jackson tape she had in the car. He took her gospel tapes, $130 from her purse, and a diamond ring she was wearing. The assailants began arguing about whether to rape her, and the darker-complected man convinced Chambers to let her go. He told A. C., “My friend loves to fuck but . . . considering God is with you tonight, we’re going to let you go.” A. C. described the darker-complected assailant as slimmer and taller than the other assailant, with blackheads on his forehead.

(iv) K. W. On March 20, 1992, the final victim, K. W, a pediatric nurse practitioner, was abducted from outside her home in Sandy Springs shortly after 1:00 a.m. K. W. had driven her car into the garage and was getting something out of the back seat when Chambers, who was wearing a ski mask and holding a silver gun, told her to get back in the car. She struggled with him, but he subdued her and forced her into the car. Chambers made K. W put a ski mask over her head, kept telling her to keep her “fucking head down,” and repeatedly hit her in the head with his gun. After several minutes, Chambers stopped the car, and a second man wearing a ski mask approached the car. K. W. described the second assailant as taller, thinner, and darker skinned than the man who abducted her.

Eventually, the darker-skinned assailant drove K. W’s car, and Chambers drove the other vehicle. The darker-skinned assailant drove K. W. to an ATM, but she did not have her ATM card and could not make a withdrawal. The assailant put her back in the car, put a ski mask over her head, and told her that they were going to his house. Once inside, K. W. retrieved a personal identification number from a statement in her briefcase in an effort to access her bank account, but the number did not work at any of the banks where the assailants drove her. After failing to obtain money, the men drove K. W back to the same house. She described it as mustard yellow, two-story, with a deck and glass sliding doors. The darker-skinned man had K. W put her arm around him when they walked into the house. Inside, K. W saw a linoleum floor, and she was taken upstairs into a bedroom. Chambers told her to take off all her clothes except her bra and to spread her legs. Then he raped her. The other assailant entered the room and forced K. W. to perform fellatio on him. Afterward, he raped her, instructing her to say and do certain things such as tell him that he had a large penis. Chambers then forced K. W to perform fellatio on him. Both men sexually assaulted her repeatedly. The second assailant teased Chambers about the size of his penis, calling him “peewee.”

Finally, the assailants put K. W. in her car, and she recalled seeing signs to the airport. The darker-skinned assailant, who was driving, asked about the Christian cassette tapes in the car. He asked how she felt about being raped by two black men and whether she was prejudiced. He asked where she went to church, and K. W. asked him whether he had a Bible. He said he did, but felt horrible about reading it because doing so made him feel guilty. The assailant asked K. W. to forgive him and to pray for him. He also told her that he had been in jail before and could not find a job; that they were not rapists, they were robbers, and this just happened. Finally, he told her to count to 50, and he left.

K. W was able to identify the house where she was taken. She was never able to identify her attackers.

B. The Investigation

Lieutenant Wendell Davis Phifer of the Fulton County Police Department, who was the lead investigator when the crimes were first committed, testified that all four victims came in and assisted with developing composite sketches of Chambers and the other assailant. Photographic lineups that included Wright’s picture were shown to all the victims, but none of them were able to identify Wright. There was no physical evidence leading to Wright, and the case was placed on inactive status until December 22, 1993. On that date, Suzanne Miller, who took over as the lead detective when Phifer was promoted, was notified that Chambers’s fingerprints matched those on file in the GBFs Automated Fingerprint Identification System (AFIS). Chambers was arrested and gave a statement implicating Wright.

Detective Robert D. Pearson, a criminal investigator for the Union City Police Department, testified that he lifted latent fingerprint impressions from K. M.’s car on February 29, 1992, and turned them over to Detective Mike Isom, who was in charge of the Union City investigation. Marion N. McDonald, Jr., manager of the records and identification section of the Fulton County Police Department, testified that he did not receive the impressions until January 19, 1994, the date of the preliminary hearing. Two days later, McDonald obtained ink fingerprint and palm print impressions from Wright, and those impressions matched latent prints lifted from the ashtray and door frame of K. M.’s car. Chambers’s prints matched latent fingerprints lifted from the door of B. J. C.’s car, and his prints were on an ATM receipt as well.

The investigation revealed that K. M. was raped at Hidden Woods Apartments, 3110 Godby Road, in Union City, and that Wright resided at the complex. B. J. C. also was raped at an apartment complex on Godby Road. Both A. C. and K. W. were taken to ATMs on Old National Highway. K. W was raped at a residence located at 6160 Connell Road, which was Chambers’s home.

C. Chambers’s Testimony

Chambers testified that he entered a guilty plea and received three life sentences plus twenty years. He gave a lengthy statement to the police, which corroborated many of the details to which the victims testified. Significantly, Chambers testified that Wright carried a chrome .380 pistol during each incident and that he and Wright committed all of the offenses.

III. The Defense

No witnesses testified for the defense except Wright, who denied committing any of the offenses. Wright also testified that he had been fingerprinted in 1991 when he was arrested for armed robbery and kidnapping, although the charges were dismissed. However, Wright admitted that he resided at 3110 Godby Road when the rapes were committed and that he could not remember where he was or what he was doing at those times. He also admitted that he had been convicted of public indecency in 1989, and that one of the conditions of his probation was to “undergo sex counseling.” Wright also was convicted of “carrying a pistol without a license” in 1992.

IV. Discussion

In light of the strength of the evidence that Wright committed the charged offenses, we cannot conclude that the new DNA evidence excluding him as the donor of the semen sample recovered from the fourth victim is so material that it warrants a new trial on the offenses committed against the first three victims. The evidence that Wright’s fingerprints were found in K. M.’s vehicle is strong circumstantial evidence of his guilt. Wright offered no explanation for the presence of his fingerprints at that crime scene, and “[w]here there is no evidence explaining how a defendant’s fingerprints came to be at a crime scene, the jury may conclude that the only reasonable explanation for their existence is that they were impressed there during the commission of the crime.”

Wright argues that there are “glaring irregularities” in the fingerprint evidence which would have caused the jury to discount that evidence if the new DNA results had been introduced. Wright cites the absence of an immediate AFIS hit on the prints collected from K. M.’s car as suggesting that the prints were not his prints. In this regard, the Union City investigator, Pearson, testified that after he lifted the prints from K. M.’s car, he turned them over to Detective Mike Isom, who took them to the state crime lab. Pearson testified that the lab report would have been sent to Isom, who did not testify. It was not until the preliminary hearing that Miller, from the Fulton County Police Department, discovered the fingerprint match. Wright argues that this evidence provides ample reason to question the integrity of documentation and chain of custody with regard to the latent fingerprints. But it is unnecessary to show the chain of custody of fingerprint cards. And a bare speculation of tampering does not affect the admissibility of fingerprint evidence. Although Wright questions the weight and not the admissibility of the fingerprint evidence, he has never made a factual showing to rebut that evidence. Wright has thus not demonstrated how the new DNA evidence affecting K. W would persuade a jury that his prints were not present in a different victim’s vehicle.

The fingerprint evidence is not the only compelling evidence linking Wright to the crimes against the other victims. The evidence showed that K. M. was raped at the apartment complex where Wright resided and that B. J. C. was raped at a complex on the same street. Wright had pleaded guilty to carrying a concealed weapon, a pistol, around the time the rapes were committed, and Chambers testified that Wright used a pistol against all of the victims in this case. Wright also had pleaded guilty to public indecency in 1989 and had been ordered to undergo sex counseling. K. M. positively identified Wright as her attacker, both at the preliminary hearing and at trial. Wright argues that K. M.’s identification of him at the preliminary hearing is suspect because he was wearing prison garb at the time. Wright argues that, in general, the identification evidence was weak because none of the other victims were able to identify him. But K. M.’s testimony was neither weak nor contradictory. She testified that, although she could not identify Wright from a photographic array, she was certain it was him when she saw him in person.

Wright’s primary contention is that the four criminal episodes bear such strong similarities that they must have been committed by the same two perpetrators, and since the new DNA evidence exonerates him of the rape of K. W, that evidence necessarily excludes him as the perpetrator of any of the other offenses. To be sure, there are many similarities among the crimes. They were committed during a three-week period, between February 28 and March 20, 1992. All four victims were abducted at gunpoint near their vehicles and were robbed, and all, except A. C., were sexually assaulted. All victims, except A. C., testified that the perpetrators said they were robbers, not rapists. Chambers’s co-defendant told A. C. and K. M. that he did not care about them because they were not his family, and he told all the victims that he had been to jail and was a victim of society. He called them all “bitch,” and he mentioned Christianity to all the victims.

But we reject Wright’s basic premise that the new DNA evidence exonerates him of all crimes against K. W The trial court did not make that ruling. The court held that the new evidence is so material that its introduction would probably produce a different result on the counts pertaining to K. W The new evidence shows only that Wright was not a donor of the semen found in the swabbings obtained from K. W. Ejaculation, of course, is not an essential element of rape. “A person commits the offense of rape when he has carnal knowledge of . . . [a] female forcibly and against her will. . . . Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ.” Thus, penetration is necessary, but ejaculation is not, and “sometimes perpetrators do not ejaculate.” In this case, the first victim, K. M., testified that Wright saw Chambers wiping himself off after raping her and yelled, “I told you not to come inside of her.” This evidence permits a strong inference that Wright was careful not to ejaculate when he raped the victims. Accordingly, the new DNA evidence may warrant a new trial as to K. W, but it does not compel the conclusion that a different verdict on the counts pertaining to the other victims would probably have resulted had it been introduced. Therefore, the trial court did not manifestly abuse its discretion in denying Wright’s extraordinary motion for new trial on Counts 1 through 8 of the indictment.

Decided June 16, 2011.

Peter K. Odom, for appellant.

Paul L. Howard, Jr., District Attorney, Peggy R. Katz, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

       On June 29, 2009, the trial court entered an order pursuant to Faretta v. California, 422 U. S. 806, 835 (95 SC 2525, 45 LE2d 562) (1975), finding that Wright made a knowing and intelligent waiver of his right to counsel.

       (Citations omitted.) Crowe v. State, 265 Ga. 582, 591 (15) (458 SE2d 799) (1995). See
        Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980) (applying same standards to motion for a new trial based on newly discovered evidence).

       (Citation and punctuation omitted.) Crowe, supra at 590-591 (15).

       (Citation omitted.) Young v. State, 269 Ga. 490, 491-492 (2) (500 SE2d 583) (1998); Drake v. State, 248 Ga. 891, 894-895 (1) (287 SE2d 180) (1982).

       See Manning v. State, 250 Ga. App. 187, 188 (550 SE2d 762) (2001).

      . B. J. C. also called these masks “toboggans.”

       The jury deliberated for only 39 minutes before finding Wright guilty on all counts.

       See Crowe, supra; Chapel v. State, 270 Ga. 151, 153 (2) (510 SE2d 802) (1998) (noting “high materiality” requirement to warrant a new trial on the basis of newly discovered evidence).

       See Leonard v. State, 269 Ga. 867, 868-869 (1) (506 SE2d 853) (1998) (“The evidence suggests no occasion for [Wright] to have left his fingerprints there except during the crime, and the evidence authorized the jury to conclude that every reasonable hypothesis was excluded except [his] guilt.”) (citations omitted).

       (Citations omitted.) Rivers v. State, 271 Ga. 115, 117 (1) (516 SE2d 525) (1999).

       See Hill v. State, 254 Ga. 213, 214-215 (3) (326 SE2d 757) (1985) (“A fingerprint is far from fungible. The value of a fingerprint lies in its unique pattern. A fingerprint card, thus, may be admitted into evidence without the showing of a chain of custody since it can be readily identified by reference to the subject’s fingerprints.”) (citation omitted).

        Meadows v. State, 135 Ga. App. 758, 760 (219 SE2d 174) (1975).

       See generally Brown v. State, 268 Ga. App. 24, 26-27 (1) (601 SE2d 405) (2004).

       Cf. Bell v. State, 227 Ga. 800, 805, 807-808 (183 SE2d 357) (1971) (Confession and conviction of another person for the same crime for which defendant was convicted warranted a new trial on the basis of newly discovered evidence although sufficient evidence, including defendant’s fingerprints at scene, authorized his conviction.).

       Cf. Bell, supra at 809 (“In numerous other cases an important element in the decision to allow a new trial has been the fact that the evidence sustaining the verdict was weak or unsatisfactory.”) (citations omitted).

       See generally Green v. State, 242 Ga. App. 868, 870 (1) (532 SE2d 111) (2000) (new evidence did not warrant new trial because it did not show “falseness, impossibility, or even improbability of the victim’s direct testimony at trial”) (footnote omitted); accord Turner v. State, 270 Ga. App. 245, 246-247 (3) (606 SE2d 296) (2004).

       OCGA § 16-6-1 (a) (1).

        Page v. State, 271 Ga. App. 541, 542 (610 SE2d 171) (2005). See Wightman v. State, 289 Ga. App. 225, 227 (1) (656 SE2d 563) (2008).

       See Chapel, supra.


author: Doyle, Judge.

text:
    A11A0112.
    WILLIAMS v. THE STATE.
    (712 SE2d 113)
   Doyle, Judge.

Richard Jermine Williams appeals the denial of his motion for new trial on the basis of ineffective assistance of counsel. For the reasons that follow, we affirm.

As established in Williams’s earlier appeal:

The evidence in this case showed that at approximately 12:30 a.m. on February 16, 2002, a Wendy’s restaurant in Bainbridge was robbed. Williams was an employee of the restaurant. He left work shortly before 12:30 a.m. on the night in question, leaving the shift manager in the restaurant by herself. The shift manager testified that while counting money, she was accosted by a man wearing a ski mask and black jogging pants. He pointed a black gun at her and instructed her to put the money in a bag. He made off with about $3,200, and she immediately alerted the police.
Within minutes, numerous law enforcement officers from Decatur County and the City of Bainbridge converged on the scene. No one was found in the vicinity except Williams, who was seen emerging from a wooded area on a bicycle about 100 yards from Wendy’s. He was wearing a pair of black jogging pants underneath a pair of work pants, a red sweatshirt with a snowman on the front of it, and torn striped boxer shorts. In the wooded area, police found articles of clothing which included a beanie cap and ski mask as well as a wristwatch. About 80 feet away, police found a money bag containing approximately $3,200 and a black handgun.
Although the shift manager could not identify Williams as the robber, she did testify that the height and weight of the robber matched his. A videotape of the robbery showed that the robber was wearing a red sweatshirt with a snowman on the front of it, black jogging pants from which a pair of striped boxer shorts protruded, and a beanie cap that matched the one found in the bushes.
While at the police station, Williams observed the wristwatch that had been found in the bushes and asked that it be returned to him (thereby identifying it as his). He removed the striped boxer shorts during a strip search. Instead of putting them back on, he held them in his hands and later informed police that he had to go to the restroom. After he flushed the toilet, police noticed that the shorts were missing. A problem with the bathroom plumbing later developed, and the shorts were removed from the sewer line.

In his motion for new trial, Williams advanced two arguments in support of his claim that his trial counsel was ineffective: first, that counsel failed to meet with him a sufficient number of times prior to trial, and second, that counsel should have filed a motion to suppress evidence discovered by officers on the night of the robbery because his arrest was illegal. After an evidentiary hearing at which Williams and trial counsel testified, the trial court denied Williams’s motion for new trial, finding that trial counsel was not ineffective. We agree.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct. As the appellate court, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

Decided June 16, 2011.

Billy M. Grantham, for appellant.

Joseph K. Mulholland, District Attorney, Charles E. Rooks, Assistant District Attorney, for appellee.

1. Williams argues that trial counsel failed to meet with him often enough prior to trial in order to sufficiently prepare a defense. Williams, however, failed to present any evidence at the hearing or in his motion as to trial counsel’s lack of information, evidence, or witnesses or what trial counsel would have gained from additional meetings. Accordingly, this claim is without merit.

2. Williams also argues that trial counsel should have filed a motion to suppress evidence found in the wooded area, evidence of his underwear discovered in the plumbing of the jail, and statements Williams made to officers after his arrest. Williams claims that his arrest and detention were illegal, and the evidence listed above was fruit of the poisonous tree. We disagree.

The currency, clothing, and other items discovered by police in the wooded area along with the underwear discovered in the plumbing of the jail were abandoned property, and therefore, seizure of those items did not implicate the Fourth Amendment. It is not ineffective for counsel to decline to file a meritless motion to suppress. Moreover, at trial, the court conducted a hearing during which it properly addressed whether to admit Williams’s statement made to officers regarding the watch. Accordingly, these claims are without merit.

Judgment affirmed.

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

       Previously, this Court affirmed in part Williams’s convictions for armed robbery and tampering with evidence, but we remanded the case to the trial court in order for the court to address Williams’s ineffective assistance of counsel claims. See Williams v. State, 259 Ga. App. 265 (576 SE2d 647) (2003).

       Id. at 266.

       (Citation and punctuation omitted.) Willis v. State, 309 Ga. App. 414, 420 (9) (710 SE2d 616) (2011), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

       See, e.g., Davenport v. State, 308 Ga. App. 140, 153 (2) (a) (706 SE2d 757) (2011) (“There is ... no magic amount of time that must be spent preparing for trial to provide a client with an adequate investigation.”).

       See McKinnon v. State, 305 Ga. App. 871, 872-873 (700 SE2d 875) (2010).

       See Willis, 309 Ga. App. at 422 (9) (c).