author: Ellington, Chief Judge.

text:
    A10A1770.
    HESRICK v. THE STATE.
    (707 SE2d 574)
   Ellington, Chief Judge.

Following a bench trial, the Superior Court of Chatham County found David Hesrick guilty beyond a reasonable doubt of sexual exploitation of children, OCGA § 16-12-100 (b) (8), and two counts of making false statements to law enforcement officers, OCGA § 16-10-20. He appeals, contending that the trial court erred in denying his motion to suppress evidence seized during a warrantless search of his home. For the following reasons, we affirm.

Because the trial court sits as the trier of fact when ruling on a motion to suppress or a motion in limine, its findings based upon conflicting evidence are analogous to a jury verdict and should not be disturbed by a reviewing court if there is any evidence to support them. When we review a trial court’s decision on such motions to exclude evidence, we construe the evidence most favorably to uphold the findings and judgment, and we adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous. When the evidence is uncontroverted and no question of witness credibility is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review. With mixed questions of fact and law, the appellate court accepts the trial court’s findings on disputed facts and witness credibility unless clearly erroneous, but independently applies the legal principles to the facts.

(Citations and punctuation omitted.) State v. Tousley, 271 Ga. App. 874 (611 SE2d 139) (2005). Further, “[w]hen reviewing a trial court’s ruling on a motion to suppress, we may consider trial testimony in addition to the testimony submitted during the motion to suppress hearing.” (Citation and punctuation omitted.) Postell v. State, 279 Ga. App. 275, 276 (1) (630 SE2d 867) (2006).

Viewed in such light, the evidence in the record shows that, on November 28, 2008, two officers with the Savannah-Chatham Metropolitan Police Department were dispatched to the scene of a domestic dispute. Upon arrival, they encountered a man, Cody Hoffman, in the front yard. Hoffman was the person who had called the police, and he told the officers that he and the homeowner, Hesrick, had been in a fight earlier that day and that Hesrick had “basically kicked” him out of the residence.

The officers knocked on the front door, and Hesrick unlocked the door and let them into the house. Hesrick told the officers that Hoffman had broken his (Hesrick’s) glasses and he showed them a bruise around his eye, but he also admitted that the altercation had taken place several days earlier. Hesrick confirmed that Hoffman had been staying at the house “off and on for quite some time,” and said that he wanted the officers to remove Hoffman from his house. The officers explained to Hesrick the legal process of eviction, and Hesrick stated that he would take care of that the next morning.

While Hesrick stood in the doorway to the house, the officers went outside and spoke to Hoffman again, telling him that Hesrick wanted to evict him. Hoffman responded that he had already made arrangements to leave the house, but then told the officers that “things were much more serious than . . . what [the officers] were called for that day.” When asked what he meant, Hoffman said that, earlier that day, he had seen Hesrick looking at child pornography on his computer, that he had told Hesrick that the pictures were illegal, and that an argument had ensued, leading to a fight. Hoffman told the officers that Hesrick had “gotten in trouble with child pornography in Chicago” before he moved to Savannah. Hoffman also told the officers that, when Hesrick learned that he had called the police, Hesrick removed the computer’s external hard drive and put it in a shed in the backyard. Hoffman then warned the officers that, if they asked Hesrick about the child pornography, Hesrick would destroy the evidence.

At some point while the officers were talking to Hoffman, Hesrick retreated back into the house and locked the front door. After hearing Hoffman’s allegations about the child pornography, the officers decided to talk to Hesrick again and knocked on the front door. After a few minutes, Hesrick opened the door and let the officers inside the front room, and the officers asked Hesrick where he was from. According to one officer, Hesrick immediately became “pissed off’ and said that he was from Chicago. The officers then asked Hesrick if he had child pornography on his computer. Hesrick asked the officers what constituted child pornography, and the officers explained that it would be images of children under the age of 18 in “explicit acts, without clothing.” According to the officers, Hesrick stated that “he did have that on his computer” and that he had been looking at it. When asked if he would show them the pictures, however, Hesrick responded that he did not know what material they were talking about and that they would need a search warrant to find out any further information.

At that point, one of the officers contacted a sergeant with the Special Victims Unit, explained the situation, and asked for guidance, and the sergeant told him to seize all of the computers and other media that were in plain view due to the possibility that Hesrick was going to destroy the evidence. The officers seized a laptop computer that they saw in the corner, as well as a desktop computer that was in another room, and locked them in their patrol car. The officers walked through the house looking for any other computer equipment that was sitting in plain view, but they found nothing. Although one of the officers also looked inside the door to the backyard shed, he did not see an external hard drive. When the officers asked Hesrick about the external hard drive, he denied having one. Hesrick then told the officers that, before they were able to get a search warrant to look for additional evidence, he would destroy the evidence.

On December 2, 2008, a detective with the police department’s Special Victims Unit obtained a search warrant for Hesrick’s house. The search warrant authorized the seizure of

All DIGITAL Data storage devices to include COMPUTER HARD DRIVES, USB drive, digital cameras, video cameras, storage cards, tapes and computer disks (DVD’s, CD’s, FLOPPY DISKS) that may store data on them[ ] which is tangible evidence of the crime of Sexual [ ] Exploitation of Minors[,] OCGA [§] 16-12-100.

The detective and other officers executed the search warrant on December 3. While the other officers were searching the house, Hesrick told the detective that he had “got[ten] rid of” the external hard drive, but could not remember where he had taken it. Hesrick also volunteered that he had started collecting child pornography 40 years earlier, but had now decided to “get rid of it” because “society . . . didn’t accept it.” During the conversation, another officer approached and asked Hesrick about a box of several broken computer “floppy disks” that the officer had found in the shed. Hesrick admitted that he was trying to “clean up all of his computers” and that, in the process, he had destroyed the floppy disks.

After considering all of the evidence presented, the trial court made the following findings of fact: that, prior to entering Hesrick’s residence, the officers had a reasonable suspicion that child pornography was inside; that Hesrick voluntarily allowed the officers to enter his house; that, while speaking with the officers, Hesrick admitted possessing child pornography; and that Hesrick told the officers that the materials could be destroyed. The court concluded that these facts constituted exigent circumstances that authorized the warrantless seizure of both computers.

1. On appeal, Hesrick contends that the trial court erred in denying his motion to suppress the items seized from his home without a warrant or his consent. He argues that the State failed to prove that the items were lawfully seized pursuant to an exception to the warrant requirement.

It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable. Nevertheless, because the ultimate touchstone of the Fourth Amendment is “reasonableness,” the warrant requirement is subject to certain exceptions.

(Citations and punctuation omitted.) Brigham City v. Stuart, 547 U. S. 398, 403 (II) (126 SC 1943, 164 LE2d 650) (2006). Among these exceptions is when exigent circumstances exist which require the immediate action of law enforcement officers, in other words, when “the exigencies of the situation make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.” (Citation and punctuation omitted.) Id. at 403-404 (II) (“An action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, as long as the circumstances, viewed objectively, justify the action. The officer’s subjective motivation is irrelevant.”) (citations and punctuation omitted; emphasis in original). One example of such an exigent circumstance is when the circumstances preceding an officer’s warrantless search and seizure demonstrate that the officer had an objectively reasonable basis for fearing the imminent destruction of the evidence at issue before a search warrant could be obtained. James v. State, 294 Ga. App. 656, 658-660 (670 SE2d 181) (2008) (noting that the exigent circumstances exception applies not only to cases involving narcotics, but also to those involving any evidence that can be removed from the premises or destroyed before a warrant can be obtained).

“Of course, the burden of proving an exception to the warrant requirement lies with the Government.” (Citation omitted.) United States v. Holloway, 290 F3d 1331, 1337 (III) (A) (11th Cir. 2002).

Whether exigent circumstances existed is a question of fact, and we review police actions from the standpoint of a hypothetical reasonable officer and must measure those actions from the foresight of an officer acting in a quickly developing situation and not from the hindsight of which judges have benefit.

(Punctuation and footnote omitted.) Lawrence v. State, 298 Ga. App. 94, 97-98 (679 SE2d 94) (2009).

Viewing the evidence presented from the perspective of the officers at the time they were confronted with this rapidly developing situation, we find no error with the trial court’s conclusion that the warrantless seizure of the computers was authorized by exigent circumstances, specifically, the objectively reasonable concern that the seizure was necessary to prevent Hesrick’s imminent destruction of the computer images of child pornography, images that were vulnerable to quick destruction, irreplaceable, and essential to proving that a crime had been committed. Accordingly, the trial court did not err in denying Hesrick’s motion to suppress.

2. Given our decision in Division 1, supra, Hesrick’s contention that the State failed to prove that the items were in the officers’ plain view (and, thus, were lawfully seized pursuant to that exception to the warrant requirement) is moot.

Decided March 10, 2011.

Jennifer R. Burns, for appellant.

Larry Chisolm, District Attorney, Emily C. Thomas, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews and Doyle, JJ., concur.

       At that time, the Forensic Unit had not yet processed or analyzed the two computers that had been seized on November 28; thus, the application for the search warrant was not based upon any data obtained from the computers. Moreover, Hesrick does not challenge on appeal the validity of the search warrant or the admissibility of the items seized pursuant to the search warrant.

       The trial court also stated that it had viewed a sample of the materials found on the computers and, based on all of the evidence presented, Hesrick was guilty beyond a reasonable doubt of the crimes charged. Hesrick does not challenge the sufficiency of the evidence to support these convictions on appeal.

       As shown above, the evidence shows that the officers twice entered Hesrick’s home pursuant to his consent, and Hesrick does not challenge the legality of the warrantless entries on appeal. Instead, the only issue is whether the officers’ warrantless seizure of the computers was lawful.

       See Lawrence u. State, 298 Ga. App. at 95, 97-98 (When responding to a call about a domestic dispute, officers observed a partially smoked marijuana cigarette lying just outside the apartment door and, when they knocked on the door, voices inside the apartment abruptly stopped. After the officers knocked for about five more minutes, a woman opened the door about five or six inches, and the officers immediately smelled the odor of burning marijuana and saw a cloud of smoke emanate from the door. Viewing these facts from the officers’ perspective at that moment, this Court concluded that exigent circumstances authorized the officers’ warrantless entry into the apartment.); James v. State, 294 Ga. App. at 660 (This Court acknowledged that rape cases often depend on evidence that is vulnerable because it can be easily altered or destroyed. Therefore, the vulnerability of the evidence, in conjunction with the defendant’s refusal to respond to the police, sufficiently supported the officer’s concern that the defendant would attempt to destroy the evidence in the time it would take to secure a search warrant.).


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A10A1828.
    A10A1829.
    FLORES v. THE STATE. LOPEZ v. THE STATE.
    (707 SE2d 578)
   PHIPPS, Presiding Judge.

Lucio Flores, Fedrico Lopez, and Agustin Garcia-Maldonada were tried together on drug and weapons charges. The jury found Flores and Lopez guilty of trafficking in methamphetamine and possession of a firearm during the commission of a felony, and they appealed from those convictions. Flores and Lopez contend the trial court erred by denying their motions for directed verdicts of acquittal based on the insufficiency of the evidence, by not providing proper notice of arraignment and never formally arraigning them, and by not severing their trials from Garcia-Maldonada’s trial. Flores’s assertions are without merit, and we affirm his convictions. However, because Lopez’s convictions were not supported by sufficient evidence, they are reversed.

Case No. A10A1828

1. Flores contends that he was entitled to a directed verdict of acquittal because “the only evidence against [him] was that he arrived [in the parking lot where the drugs were found] at approximately the same time as the vehicle containing [the] drugs” arrived. This contention is without merit.

When a criminal defendant challenges the sufficiency of the evidence supporting his conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” “The standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction.”

Viewed in the light most favorable to the prosecution, the record shows that police officers arrested an individual for allegedly trafficking in methamphetamine then, the same day, sought his assistance as a confidential informant in other investigations. With an officer present, the confidential informant engaged in a telephone conversation via speaker phone with what sounded to the officer to be a Spanish-speaking male. After the conversation ended, the confidential informant, the officer and two other officers drove the confidential informant’s vehicle and an unmarked police vehicle to a motel, where the officers began a surveillance of the motel parking lot; the surveillance lasted about an hour. During the surveillance, the confidential informant engaged in another phone conversation with what sounded to an officer to be a Spanish-speaking male. After that phone call concluded, a green vehicle entered the parking lot. The driver of that vehicle, Garcia-Maldonada, parked it and remained inside.

Three to four minutes later, a black vehicle entered the parking lot and drove in front of the room where the informant was standing, approximately 150 feet away from the green vehicle. When the informant approached the black vehicle and made contact with its occupants, officers moved in and pulled the occupants out of both vehicles.

Flores was the driver of the black vehicle, and Lopez was the passenger. Officers found a handgun on the driver’s side floorboard, and a handgun on Lopez’s person. They found no drugs in the black vehicle.

In the green vehicle, in a container under the driver’s seat, officers found 446.74 grams of methamphetamine. Garcia-Maldonada told one of the officers at the scene that the vehicle was not his, that he did not know what was in the vehicle, and that he was being paid to drive the vehicle. Police established that both vehicles were registered in names other than the defendants’ names. At trial, all three defendants used interpreters to translate what was being said in the proceedings from English to Spanish and vice versa.

Garcia-Maldonada testified that Flores had agreed to lend him money if he did Flores a “favor,” which was to drive the vehicle. As Flores had instructed, Garcia-Maldonada met him at a gas station to get the vehicle. There, Flores gave Garcia-Maldonada keys to the vehicle, instructed him on where to drive and park, and then led him to the motel. Garcia-Maldonada added that “sometimes they were behind me and sometimes they were in front of me,” and that he was able to arrive before Flores because he “got ahead of them” and knew where he “needed to go.”

A police officer with experience and specialized training in narcotics investigations testified that with an “ advance [d] drug dealer, which is anything more than an ounce” of drugs, there is usually a second car, so that the dealers and the drugs are not in the same car. “[T]hey don’t want to mix both of them together, be taken down and . . . lose everything. ’ ’

OCGA § 16-13-31 (e) provides, in relevant part, that a person commits the offense of trafficking in methamphetamine when he knowingly possesses 28 grams or more of methamphetamine or any mixture containing methamphetamine. OCGA § 16-11-106 (b) (5) provides, in relevant part, that a person commits a felony if he has on or within arm’s reach of his person a firearm during the commission of any felony involving the trafficking of illegal drugs.

Possession of contraband may be actual or constructive. A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. Here, the evidence was sufficient to show that Flores knowingly had the power and intention to exercise dominion and control over the drugs stashed inside the green vehicle, as he had moments earlier given Garcia-Maldonada the keys to the vehicle, told him where to drive and park the vehicle, and led him (at least part of the way) to the motel. Under the circumstances, the jury was authorized to find Flores guilty of trafficking in methamphetamine beyond a reasonable doubt. It was also authorized to find Flores guilty of possession of a firearm during the commission of a felony because a handgun was found on the driver’s side floorboard of the vehicle he had just been driving.

2. Flores contends that he received inadequate notice of his arraignment and was never formally arraigned, in violation of OCGA §§ 17-7-91 and 17-7-93. Flores’s contention presents no basis for reversal. At trial, Flores voiced no objection to the alleged lack of arraignment or notice. Any error in the lack of arraignment was waived by his failure to raise the issue prior to verdict. Moreover, even if there had been no waiver, procedural errors occurring at the arraignment stage are subject to a harmless error analysis. In light of Flores’s failure to show (or even assert) any harm, reversal is not required.

3. Flores contends that the court erred in denying his motion to sever his trial from that of Garcia-Maldonada. This assertion is without merit.

“The grant or denial of a motion to sever is within the discretion of the trial court, and absent an abuse of discretion, denial of a motion to sever is not grounds for reversal.” Flores had the burden of making a clear showing of prejudice and a denial of due process in the absence of severance.

In determining whether to grant a severance, a trial court should consider whether the number of defendants will create confusion of the evidence and the law applicable to each individual defendant, whether there is a danger that evidence admissible against one defendant will be considered against another despite the cautionary instructions of the court, and whether the defenses of the defendants are antagonistic to each other or each other’s rights.

Flores contends that his trial should have been severed from Garcia-Maldonada’s because there was a danger that evidence against Garcia-Maldonada would be considered against him and because Garcia-Maldonada asserted antagonistic defenses. Flores argues that he was prejudiced when Garcia-Maldonada’s attorney asked a state’s witness about Flores’s efforts after his arrest to assist the state in “taking down further dope dealers” and on Flores’s alleged flight attempt before trial. He also argues that he was prejudiced by the admission of Garcia-Maldonada’s statements to police and at trial that implicated Flores.

The existence of antagonistic defenses in and of itself does not require severance, and Flores has not demonstrated any clear prejudice and denial of due process which might have been avoided by severing the trials. For instance, the testimony of Garcia-Maldonada implicating Flores would be admissible in a separate trial, as would evidence of Flores’s attempted flight and, under certain circumstances, statements Flores made while cooperating with the state. Notably, Flores did not object when Garcia-Maldonada’s counsel asked the state’s witness if he had used Flores to “tak[e] down” other drug dealers, made no objection when that attorney asked if the witness had tried to use Flores again later, and did not object when the state thereafter asked the witness if Flores had cooperated with and assisted police. Even assuming that this issue was preserved, the inquiry by counsel for Garcia-Maldonada was not harmful in light of the strength of the evidence against Flores. Moreover, because Garcia-Maldonada testified at trial, Flores had ample opportunity to cross-examine him; we note that no prejudice amounting to a denial of due process rights is shown where an accomplice, who is subject to cross-examination, takes the stand and blames the appellant or attributes to the appellant a greater degree of culpability than the accomplice himself bears.

Flores has therefore not shown that the prejudice that he contends resulted from the evidence or inquiry at issue would have been avoided by a separate trial. Because he has not shown that he was prejudiced by the refusal to sever, no abuse of discretion is demonstrated.

Case No. A10A1829

4. Lopez contends that there was insufficient evidence to support his convictions and that the trial court therefore erred in denying his motion for a directed verdict. We agree and reverse his convictions.

In Count 1 of the indictment, the state charged Lopez with trafficking in methamphetamine, alleging that he unlawfully possessed more than 400 grams of a mixture containing methamphetamine. The evidence against Lopez was insufficient to authorize a rational trier of fact to find beyond a reasonable doubt that he was in actual or constructive possession of the drugs. There is no presumption of drug possession here, because there was no evidence that Lopez owned or controlled the vehicle in which the drugs were found; in fact, there was no evidence that he had even been in or had any connection to that vehicle. No testimony from Garcia-Maldonada (or anyone else) implicated Lopez in the transaction. The evidence showed nothing more than Lopez’s presence in the vehicle with Flores. The state was required to produce evidence of some meaningful connection between Lopez and the drugs, which it failed to do. There was no evidence that Lopez had the power and intent to exercise control over the drugs found in the other vehicle.

Further, Lopez’s conviction cannot be upheld on the ground that he was a party to the crime of trafficking in methamphetamine, as the state failed to adduce evidence that he intentionally caused another to commit the crime, aided or abetted in the commission of the crime, or advised or encouraged another to commit the crime. Thus, the state’s evidence did not show essential links between Lopez’s proven behavior and the drug trafficking charge. The court erred in denying Lopez’s motion for a directed verdict of acquittal on the trafficking in methamphetamine charge.

In Count 2 of the indictment, Lopez was charged with the offense of possession of a firearm during the commission of a felony, namely, possession of methamphetamine. Because the evidence did not support the “during the commission of a felony” element of the firearm possession charge, Lopez’s conviction for possession of a firearm during the commission of a felony must be reversed.

Decided March 10, 2011

Hernán, Taylor & Lee, Christopher C. Taylor, Jerome Lee, for appellants.

Tommy K. Floyd, District Attorney, Sandra G. Rivers, Assistant District Attorney, for appellee.

5. In light of our holding in Division 4, Lopez’s remaining assertions of error are moot.

Judgment affirmed in Case No. A10A1828. Judgment reversed in Case No. A10A1829.

Miller, P. J., and McFadden, J., concur.

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

        Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (citation and punctuation omitted).

        Shelton v. State, 279 Ga. 161, 162 (3) (611 SE2d 11) (2005) (citation omitted).

       According to one officer, there was approximately one pound of methamphetamine.

        Fyfe v. State, 305 Ga. App. 322, 326 (2) (699 SE2d 546) (2010).

       Id.

       See id. at 327-328 (2); Sherrer v. State, 289 Ga. App. 156, 160 (2) (656 SE2d 258) (2008).

       See Driscoll v. State, 295 Ga. App. 5, 8 (1) (b) (670 SE2d 824) (2008).

       OCGA § 17-7-91 provides, in relevant part, that in criminal cases the court clerk shall mail notice of arraignment to the defendant and his attorney at least five days prior to arraignment, and the defendant shall be arraigned on the date fixed by the court. OCGA § 17-7-93 sets forth procedures to be followed during the arraignment.

        Spear v. State, 270 Ga. 628, 632 (5) (513 SE2d 489) (1999).

       See Cox v. State, 279 Ga. 223, 228 (9) (610 SE2d 521) (2005).

       Id. at 228-229 (9).

        Johnson v. State, 258 Ga. 504, 505 (2) (371 SE2d 651) (1988) (citation omitted).

        Moss v. State, 275 Ga. 96, 97 (2) (561 SE2d 382) (2002).

       Id. (footnote omitted); see Harrell v. State, 253 Ga. 474, 475 (2) (321 SE2d 739) (1984).

        Kennedy v. State, 253 Ga. 132, 135 (2) (317 SE2d 822) (1984).

       See OCGA § 17-8-4 (a); Kennedy, supra.

       See generally Renner v. State, 260 Ga. 515, 517-518 (3) (b) (397 SE2d 683) (1990).

       See generally OCGA § 17-16-4 (a) (1) (providing for the state’s use at trial of the defendant’s relevant statements to law enforcement officers or members of the prosecuting attorney’s staff under certain circumstances).

       See Chapman v. State, 263 Ga. 393, 394 (2) (435 SE2d 202) (1993).

       See Durham v. State, 240 Ga. 203 (1) (240 SE2d 14) (1977) (no prejudice shown by denial of motion to sever where all defendants testified and were cross-examined); Kennedy, supra.

        Chandler v. State, 213 Ga. App. 46, 47 (1) (443 SE2d 679) (1994).

       See Gee v. State, 261 Ga. 178, 179 (3) (402 SE2d 719) (1991); Diaz v. State, 280 Ga. App. 413, 416 (634 SE2d 160) (2006).

       See Jackson v. Virginia, supra; Mitchell v. State, 268 Ga. 592-593 (492 SE2d 204) (1997).

       See Mitchell, supra.

       See Brown v. State, 285 Ga. App. 330, 331 (646 SE2d 273) (2007).

       See Stevens v. State, 245 Ga. App. 237, 238 (1) (537 SE2d 688) (2000).

       See OCGA § 16-2-20; see Crenshaw v. State, 183 Ga. App. 527, 528 (1) (359 SE2d 419) (1987). See generally Gresham v. State, 298 Ga. App. 136, 140 (1) (679 SE2d 344) (2009) (mere presence at scene of crime and mere approval of criminal act are not sufficient to show defendant was party to the crime).

       See Gresham, supra at 141.

       See Stevens, supra at 239 (1).

       Compare State v. Robinson, 275 Ga. App. 117-118 (619 SE2d 806) (2005) (finding evidence sufficient to support a guilty verdict for possession of firearm during commission of felony of aggravated assault notwithstanding defendant’s acquittal on aggravated assault charge); Fields v. State, 263 Ga. App. 11, 12 (587 SE2d 171) (2003) (same). See generally King v. Waters, 278 Ga. 122, 123-124 (2) (598 SE2d 476) (2004) (stating that the commission of the felony named in the indictment is an essential element of the offense of possession of a firearm during commission of the felony, and reversing conviction for possession of a firearm during commission of aggravated assault where aggravated assault conviction was reversed).


text:
    A10A1948.
    OWENS v. THE STATE.
    (707 SE2d 584)
   Ellington, Chief Judge.

On August 15, 2008, officers with the Georgia State Patrol stopped Virgil Owens at a roadblock and arrested him for driving under the influence of alcohol (“DUI”). Following a bench trial, Owens was convicted of DUI, based upon a violation of OCGA § 40-6-391 (a) (5) (per se). On appeal, Owens claims that the trial court erred by denying his motion to suppress evidence obtained at the roadblock. He also argues that the officers lacked probable cause to arrest him for DUI. Finding no merit to Owens’ arguments, we affirm.

1. Owens contends that the trial court erred in finding that the roadblock had been legally initiated and implemented and in denying his motion to suppress based upon such finding. Specifically, he argues that the evidence shows that the roadblock was the result of an unauthorized, “on-the-fly” decision made jointly by an alleged supervisor and his field officers and that the roadblock was, essentially, an improper “roving patrol” of officers who illegally stopped and detained motorists.

It is axiomatic that a police officer’s stop of a vehicle is a seizure that violates the Fourth Amendment unless it is reasonable. City of Indianapolis v. Edmond, 531 U. S. 32, 37 (II), 40 (III) (121 SC 447, 148 LE2d 333) (2000); Thomas v. State, 277 Ga. App. 88, 89-90 (625 SE2d 455) (2005). In general, a seizure is unreasonable absent some individualized suspicion of a crime. City of Indianapolis v. Edmond, 531 U. S. at 37 (II); Thomas v. State, 277 Ga. App. at 89-90. As a result, “roving patrols in which officers exercise[ ] unfettered discretion to stop drivers in the absence of some articulable suspicion” are unconstitutional. (Citation omitted.) Thomas v. State, 277 Ga. App. at 90. A limited exception to the rule requiring individualized suspicion, however, allows standardized highway checkpoints or roadblocks that serve legitimate law enforcement objectives and that impose minimal intrusions on the motoring public. City of Indianapolis v. Edmond, 531 U. S. at 41-42 (III); LaFontaine v. State, 269 Ga. 251, 253 (3) (497 SE2d 367) (1998).

To justify a traffic stop under this exception, the State must prove that a highway roadblock program “was implemented at the programmatic level[] for a legitimate primary purpose,” that is, that the roadblock was ordered by a supervisor, rather than by officers in the field, and was “implemented to ensure roadway safety rather than as a constitutionally impermissible pretext aimed at discovering general evidence of ordinary crime.” (Citations omitted.) Hobbs v. State, 260 Ga. App. 115, 116 (1) (579 SE2d 50) (2003). “Elevating the roadblock decision from the officers in the field to the supervisory level limits the exercise of discretion by the officers in the field.” Thomas v. State, 277 Ga. App. at 90.

In addition, the State must prove that

all vehicles [were] stopped as opposed to random vehicle stops; the delay to motorists [was] minimal; the roadblock operation [was] well identified as a police checkpoint; and the screening officer’s training and experience [was] sufficient to qualify him [or her] to make an initial determination as to which motorists should be given field tests for intoxication.

(Citation and punctuation omitted.) LaFontaine v. State, 269 Ga. at 253 (3). “[T]he factors in LaFontaine are not general guidelines but are minimum constitutional prerequisites with which perfunctory compliance will not suffice.” (Citation, punctuation and footnote omitted.) Thomas u. State, 277 Ga. App. at 90.

In this case, the only witnesses who testified at the motion to suppress hearing were the supervisor who initiated and supervised the roadblock and the officer who screened Owens at the roadblock and eventually arrested him. Following the hearing, the trial court made the following findings of fact:

The order for the roadblock was issued by Sergeant Michael C. Johnson post commander of Post 7 of the Georgia State Patrol, Toccoa, Georgia. . . . Sgt. Johnson is in fact the commanding officer for the field officers at his Post and his duties include “Initiating road-checks[.]”[] . . . Sgt. Johnson initiated the roadblock verbally and the decision was made by him alone. [] . . . Sgt. Johnson [then] supervised the roadblock. []

The court also found that, when Sgt. Johnson verbally initiated the roadblock on August 15, 2008, he called into the radio operator to report the roadblock. The roadblock approval form, which was admitted into evidence without objection, stated the reasons for the roadblock on August 15, 2008, and the court found that the information on the form did not conflict with any evidence presented as to when the roadblock was to be conducted or by whom it was authorized. The evidence presented during the hearing on the motion to suppress supports these findings of fact.

Contrary to Owens’ contentions, there is no evidence in this case that Sgt. Johnson spontaneously decided in the field to conduct the roadblock or that the roadblock had any other characteristic of a “roving patrol.” Instead, given the evidence presented, the trial court was authorized to conclude that Sgt. Johnson properly initiated, authorized, and supervised the roadblock and that his decision to implement the roadblock was made at the programmatic level for a legitimate primary purpose.

2. Owens contends that the trial court erred in finding that his detention by the officers was not excessive under the circumstances or otherwise illegal and in denying his motion to suppress based upon such finding. We disagree.

When a violator is placed in custody or under arrest at a traffic stop, the protection of Miranda[ ] arises. Thus, if an officer gives a field sobriety test to a person who is in custody or under arrest but who had not been warned of his right against self-incrimination, then the test results are inadmissible. Conversely, if the person is not in custody when he takes a field sobriety test, the results are generally admissible[,] even if the person had not been warned of his Miranda rights. The test to determine whether a detainee is in custody for Miranda purposes is whether a reasonable person in the detainee’s position would have thought the detention would not be temporary. The safeguards prescribed by Miranda become applicable only after a detainee’s freedom of action is curtailed to a degree associated with formal arrest. The rationale behind the holding is that although an ordinary traffic stop curtails the freedom of action of the detained motorist and imposes some pressures on the detainee to answer questions, such pressures do not sufficiently impair the detainee’s exercise of his privilege against self-incrimination so as to require that he be advised of his constitutional rights. The issue of whether one is in custody for Miranda purposes is a mixed question of law and fact, and the trial court’s determination will not be disturbed unless it is clearly erroneous.

(Citations and punctuation omitted.) Thomas v. State, 294 Ga. App. 108, 110 (1) (668 SE2d 540) (2008).

As the trial court in this case found, the arresting officer

detained [Owens] for [20] minutes after the initial portable breath test to conduct an additional test. The reason given by the arresting officer was that [Owens] admitted he had something to drink recently and there could be residual mouth alcohol. Not until after the [20] minute wait and after the second portable breath test was possible was [Owens] placed under arrest. . . . The [20] minute delay was for the benefit of [Owens] to insure that the portable alcohol test was not affected by residual alcohol due to [Owens’] recent consumption of alcoholic beverages.

These findings of fact are supported by evidence in the record. Further, there was no evidence that Owens was handcuffed or otherwise restrained while he waited near the back of his vehicle during the brief detention.

We conclude that, under the circumstances presented, “a reasonable person could conclude that his freedom of action was only temporarily curtailed and that a final determination of his status was simply delayed.” (Citation and punctuation omitted.) Thomas v. State, 294 Ga. App. at 111 (1). Thus, the trial court was authorized to conclude that the brief detention of Owens was neither unreasonable nor illegal, and the court did not err in denying Owens’ motion to suppress on this basis. See id. at 110-111 (1) (Because the officer who stopped the defendant was transporting another suspect, he had to call a dispatcher and ask for assistance. The officer informed the defendant that another officer was on the way to conduct the DUI investigation, so it was clear that the detention would be temporary. While waiting, the defendant was neither handcuffed nor placed into a patrol car, although the officer did have possession of the defendant’s keys and driver’s license. There was no evidence, however, of any unnecessary delay or lack of diligence by the officers. Under these circumstances, the trial court properly found that the defendant was not under arrest until after he performed the field sobriety tests and, as a result, did not err in denying the motion to suppress).

Decided March 10, 2011

Sean A. Black, for appellant.

Dan T. Pressley, Sr., Solicitor-General, for appellee.

3. Owens contends that the trial court erred in finding that the arresting officer had probable cause to arrest him for DUI. Although Owens obliquely referred to this issue in his motion to suppress, he failed to raise and argue the issue during the motion to suppress hearing. He also failed to assert it in a supplemental brief on his motion to suppress that he submitted to the trial court several months after the motion hearing. Consequently, Owens failed to elicit a ruling on the issue by the trial court. Under these circumstances, Owens has abandoned this alleged error. See Williams v. State, 277 Ga. App. 106, 108 (2) (625 SE2d 509) (2005) (“We are a court for the correction of errors of law committed by the trial court where proper exception is taken, and we will not consider issues and grounds for objection . . . which were not raised and determined in the trial court.”) (footnote omitted).

Judgment affirmed.

Andrews and Doyle, JJ., concur.

       “In ruling on a motion to suppress, the trial court sits as the trier of fact, and the court’s findings are analogous to a jury verdict and will not be disturbed when the record contains any evidence to support those findings.” (Punctuation and footnote omitted.) McGlon v. State, 296 Ga. App. 77 (673 SE2d 513) (2009). Further, “when reviewing a ruling on a motion to suppress, we construe the evidence in a light favorable to the trial court’s findings!)]” (Footnote omitted.) Id. In contrast, “where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” (Citations omitted.) Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

       See LaFontaine u. State, 269 Ga. at 253 (3) (“Roadblock stops have appreciably less intrusion on the part of travelers and do not create the fear and surprise engendered in motorists by roving patrol stops because the motorist is not singled out; the traveler is reassured when all vehicles are stopped.”) (citation omitted).

       Georgia’s courts have not yet precisely defined what it means for a decision to be made at the “programmatic level.” See Jacobs v. State, 308 Ga. App. 117, 119, n. 6 (706 SE2d 737) (2011).

       See City of Indianapolis v. Edmond, 531 U. S. at 48 (III) (Courts’ inquiry into the purpose of a police checkpoint or roadblock “is to be conducted only at the programmatic level”; therefore, courts should not “probe the minds of individual officers acting at the scene” to determine whether the purpose of the roadblock was legitimate.).

       See Jacobs v. State, 308 Ga. App. at 120 (The supervisor’s testimony that “she was expressly authorized to plan and implement roadblocks, which was uncontradicted, [was] sufficient to establish that fact, regardless of whether this delegation of authority was memorialized in a written manual or policy.”) (footnote omitted); Rappley v. State, 306 Ga. App. 531, 534 (a) (702 SE2d 763) (2010) (The testimony of an officer that he was a supervising officer with decision-making authority to implement a roadblock at a particular time and place, even though contradicted, was sufficient to establish that fact.); Harwood v. State, 262 Ga. App. 818, 819-820 (1) (a) (586 SE2d 722) (2003) (The uncontradicted testimony of an officer that he was a supervising officer with decision-making authority to implement a roadblock was sufficient to establish that fact, regardless of the State’s failure to call the officer’s supervisor to verify that authority, even though the officer’s statement that his supervisor gave him authority was hearsay.).

       The court added that the arresting officer testified that Sgt. Johnson instructed him to “patrol aggressively” until Sgt. Johnson notified him of the roadblock locations.

       See Giacini v. State, 281 Ga. App. 426,428 (1) (636 SE2d 145) (2006) (The mere fact that the deciding officer was present at the scene of the roadblock did not deprive him of “supervisory” status, because he was present in a supervisory capacity.); Harwood v. State, 262 Ga. App. at 820 (1) (a) (“[T]he fact that the officer who order[s] [a] roadblock also attend[s] it does not mean that the roadblock was not implemented at the programmatic level.”) (punctuation and footnote omitted); Perdue v. State, 256 Ga. App. 765, 768, n. 15 (578 SE2d 456) (2002) (physical precedent only) (Although “[alllowing an officer in the field, of whatever rank, to decide the time and location of checkpoints seems to have the same potential for abuse as did the much-maligned roving-patrol,” “[n]o dichotomy [between decisions made by field officers and those made by supervisory officers] exists when a supervisor in advance decides on the time and location [for a roadblock] and then goes to the scene to oversee the field officers.”) (citation omitted); see also Gonzalez v. State, 289 Ga. App. 549, 551 (657 SE2d 617) (2008) (A roadblock was implemented by a supervisor even though the deciding officer testified that, while his primary duty at the location was to oversee the roadblock, he did occasionally step in and participate when traffic backed up.); Hobbs v. State, 260 Ga. App. at 117 (1) (A roadblock was implemented by a supervisor even though the deciding officer personally stopped the defendant’s car at the roadblock, where the officer testified that he went to the location as a supervising officer and that he took no direct role except when his subordinate officers were busy working with other motorists.).

       Cf. State v. Morgan, 267 Ga. App. 728, 732 (600 SE2d 767) (2004) (The defendant was stopped by officers at a roadblock on April 18, 2002, but the roadblock authorization form signed by the officers’ supervisor showed that the officers were only authorized to perform the roadblock on April 19. The form conflicted with an officer’s testimony that the roadblock was authorized for two days, April 18 and 19. Given that it was undisputed that the document in question was the applicable authorization form, the trial court was authorized to disbelieve any contradictory evidence regarding the authorized time for the roadblock. Thus, the trial court’s finding that the roadblock was not authorized for April 18 was not clearly erroneous.).

       See LaFontaine v. State, 269 Ga. at 253 (3) (The trial court did not err in denying the defendant’s motion to suppress evidence resulting from a roadblock where there was “no evidence of unfettered discretion by the [officers who screened the motorists,]” no evidence that any officer whimsically or arbitrarily singled out the defendant’s vehicle, and no showing that the roadblock was arbitrary or oppressive to motorists.).

       See Jacobs v. State, 308 Ga. App. at 120 (A roadblock was implemented at the programmatic level for a legitimate primary purpose because the supervisor decided to set up the roadblock to carry out the directive of her superior officers to conduct road safety checks at a prescribed frequency.); Britt u. State, 294 Ga. App. 142, 143-145 (1) (a) (i), (ii) (668 SE2d 461) (2008) (A roadblock was implemented at the programmatic level for a legitimate primary purpose because the evidence showed that the roadblock was established by supervisory personnel, as opposed to officers in the field, and that its purpose was to perform a driver’s license and sobriety check.); Gonzalez v. State, 289 Ga. App. at 550-551 (A roadblock was implemented at the programmatic level where the deciding officer was authorized to implement the roadblock pursuant to a policy promulgated by the police chiefs office.); Bennett v. State, 283 Ga. App. 581, 582-583 (642 SE2d 212) (2007) (A roadblock was implemented for a legitimate primary purpose because the evidence showed that the roadblock was established by an authorized supervisor and that its purpose was to check for potential seatbelt infractions and DUI offenders, both of which are permissible purposes for a roadblock.); Wright v. State, 283 Ga. App. 393, 394 (641 SE2d 605) (2007) (A roadblock was implemented for a legitimate primary purpose because the evidence showed that the roadblock was established by an authorized supervisor and that its purpose was to check for driver’s licenses, proof of insurance, seat belt violations, driver impairment and vehicle safety compliance.); Giacini v. State, 281 Ga. App. at 428 (1) (A roadblock was implemented at the programmatic level where the deciding officer testified that he was authorized to implement the roadblock pursuant to department policy.); Harwood v. State, 262 Ga. App. at 820 (1) (a) (A roadblock was implemented at the programmatic level where the deciding officer was authorized to order the roadblock pursuant to the department’s policy manual and where that officer’s supervisor had delegated the task to him.); Ross u. State, 257 Ga. App. 541, 542 (1) (573 SE2d 402) (2002) (An officer’s testimony that “Chief of Police policy” authorized him as a supervisor to order roadblocks established that the decision to implement a roadblock was made at the programmatic level.); cf. Thomas u. State, 277 Ga. App. at 90-92 (The trial court erred in denying the defendant’s motion to suppress evidence resulting from a roadblock where the evidence showed that a senior patrol officer, who supervised his shift, met with his subordinates while already on patrol and decided spontaneously to set up a roadblock and where the evidence showed that the deciding officer did not rely on any specific authority or department policy for implementing roadblocks, did not seek approval from his commanding officer before immediately implementing the roadblock, and actively participated in all aspects of the roadblock, as did the other field officers.).

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

       See also Harper v. State, 243 Ga. App. 705, 706 (1) (534 SE2d 157) (2000) (Although there was a delay of up to an hour between the traffic stop and the DUI investigation, while the officer who conducted the stop waited for a DUI task force officer to arrive, the delay did not convert the investigation into a custodial situation when the evidence showed that the defendant was informed of the reason for the delay, he was not handcuffed or placed in a patrol car, and he was allowed to walk around. Under such circumstances, a reasonable person could conclude that the detention was temporary and that a final determination of his status was simply delayed.).


author: McFADDEN, Judge.

text:
    A11A0395.
    BEAVER v. THE STATE.
    (707 SE2d 590)
   McFADDEN, Judge.

Carol Beaver pled guilty in the Superior Court of Colquitt County to two counts of cruelty to children in the second degree. The trial court accepted the pleas, entered judgments of conviction and imposed a total sentence of five years in confinement, followed by fifteen years on probation. The trial court denied a motion to withdraw the guilty pleas.

Beaver appeals, claiming that the accusation was “unconstitutionally drawn,” that there was no factual basis for the guilty pleas and that her trial counsel was ineffective. Because she waived the challenge to the accusation and there was a factual basis for the pleas, we affirm. And since this appeal presents the first practicable opportunity for her to raise the ineffective assistance claim, we remand the case to the trial court for a hearing on that claim.

1. In her first enumeration of error, Beaver complains that her cruelty to children convictions must be reversed because they are “based upon an unconstitutionally drawn accusation.” To the extent this enumeration constitutes a challenge to the form and substance of the accusation, it has been waived.

[T]he right to be tried upon an [accusation] that is perfect in form and in substance is waived when a defendant fails to timely and properly challenge the [accusation]. Because [Beaver] failed to challenge the accusation by way of special demurrer or by filing a motion to quash before entering [her] guilty plea, [she] waived the right to a perfect accusation.

(Citations and punctuation omitted.) State v. Hammons, 252 Ga. App. 226, 229 (2) (a) (555 SE2d 890) (2001).

Similarly, to the extent that Beaver attempts to challenge the constitutionality of the cruelty to children statute, she has waived such challenge by failing to raise it in, and obtain a ruling from, the trial court. Boykins-White v. State, 305 Ga. App. 827, 833 (6) (701 SE2d 221) (2010). Accordingly, this enumeration provides no basis for us to reverse the judgment of the trial court.

2. Citing Shabazz v. State, 259 Ga. App. 339, 340 (1) (577 SE2d 45) (2003), for the proposition that an indictment or accusation cannot be used to establish the factual basis for a guilty plea, Beaver contends that the trial court erred in accepting her guilty pleas because there was no factual basis for them other than the state’s reading of the accusation to the court. The Supreme Court of Georgia, however, has expressly held “that an indictment alone may contain enough information to establish that the facts alleged by the State actually satisfied the elements of the charges to which a defendant was pleading guilty.” (Citations and punctuation omitted.) Adams u. State, 285 Ga. 744, 748 (4) (b) (683 SE2d 586) (2009). Moreover, in so holding, the Supreme Court overruled Shabazz to the extent that it holds to the contrary. Id. at 748, n. 5.

At the plea hearing in this case, after Beaver entered her guilty pleas and expressly indicated to the court that she is “in fact, guilty,” the judge asked the state for the facts of the case. The prosecuting attorney then tracked the language of the accusation, stating that if the matter had gone to trial, the evidence would have shown that Beaver was criminally negligent in that, between certain dates, she caused her two minor children cruel and excessive physical and mental pain by allowing the children to be alone with two people whom she knew or should have known were molesting them. In response to questions from the trial court, Beaver then testified that she had heard and understood the facts as to the two counts and that they were substantially correct.

Under these circumstances, and

[ajfter considering the relevant statute[ ], see [OCGA § 16-5-70 (c)], we find that the [accusation] provided ample information from which the trial court could discern that the facts alleged by the state actually satisfied the elements of the charges to which [Beaver] was pleading guilty.

Green v. State, 265 Ga. 263, 265 (2) (454 SE2d 466) (1995). Because there was a sufficient factual basis for the guilty pleas, the trial court did not err in accepting them. See Lamb v. State, 278 Ga. App. 97, 100 (2) (628 SE2d 165) (2006).

3. Beaver claims that her trial counsel was ineffective and asks that we remand the case to the trial court for a hearing on that claim.

A defendant who seeks to appeal a guilty plea on the ground of ineffective assistance of counsel must develop those issues in a post-plea hearing and may not file a direct appeal if the only evidence in the record is the transcript of the guilty plea hearing. The proper remedy is to move to withdraw the plea or, if the term of court in which the plea was entered has expired, to petition for a writ of habeas corpus.

(Citation and punctuation omitted.) Carleton v. State, 302 Ga. App. 29, 30 (2) (690 SE2d 426) (2010). Beaver properly filed her motion to withdraw the guilty pleas during the term of court in which it was entered. See OCGA § 15-6-3 (35) (B). At a hearing on the motion, trial counsel specifically requested that new counsel be appointed to represent Beaver, but the trial court denied the request. Trial counsel subsequently filed the notice of appeal. Several months later, new appellate counsel was appointed and made an entry of appearance.

“Generally, when the appeal presents the earliest practicable opportunity to raise an ineffectiveness claim, and the claim is indeed raised for the first time on appeal, our appellate courts remand the case to the trial court for an evidentiary hearing on the issue.” (Citation and punctuation omitted.) Ruiz v. State, 286 Ga. 146, 149 (2) (b) (686 SE2d 253) (2009). Because this appeal is the earliest practicable opportunity for new appellate counsel to raise an ineffectiveness claim, we remand the case to the trial court for a hearing on that claim. Compare Dawson v. State, 302 Ga. App. 842, 844 (691 SE2d 886) (2010) (no remand where appellate counsel was appointed prior to filing of notice of appeal).

Decided March 10, 2011.

John G. Wolinski, for appellant.

J. David Miller, District Attorney, Brian A. McDaniel, Assistant District Attorney, for appellee.

Judgment affirmed and case remanded with direction.

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


author: Andrews, Judge.

text:
    A11A0128.
    WILSON v. THE STATE.
    (708 SE2d 14)
   Andrews, Judge.

After a bench trial ending in a conviction for theft, DUI, drug possession, and other offenses, Jerry Lee Wilson appeals the trial court’s denial of his motion to suppress. We find no error and affirm.

On review of the denial of a motion to suppress, we consider all the evidence of record, including evidence introduced at trial. Jackson v. State, 280 Ga. App. 716 (634 SE2d 846) (2006). Where the evidence at a hearing on a motion to suppress is uncontroverted and no question of credibility is presented, we review the trial court’s application of the law to these undisputed facts de novo. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994). As to questions of fact and credibility, however, we construe the evidence in favor of the trial court’s findings and judgment, which must be accepted unless clearly erroneous. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

So viewed, the record shows that on October 22, 2009, police pulled Wilson over for a number of traffic violations, including three nonworking lights and three failures to maintain lane, including crossing the centerline for up to five seconds. Wilson was driving the car, and he had one passenger. In the back seat behind the driver’s seat, the lead officer noticed a grocery basket bearing the name “Food Lion.” When the officer asked Wilson for his wallet, he noticed that Wilson took an unusually long time to retrieve it and that Wilson’s droopy eyes and slurred speech might be the result of being under the influence of drugs (Wilson did not smell of alcohol).

Wilson eventually produced his insurance card but could not locate his driver’s license. The officer then asked Wilson to step out of the vehicle. When Wilson did so, the officer noticed that Wilson swayed and had dilated pupils. The officer then asked Wilson whether he had any drugs or weapons inside the car. When Wilson said that he did not, the officer asked for consent to search, which Wilson granted. In the hand basket, the officer found two grocery bags, each of which contained a container of ice cream, as well as a four-pack of lithium batteries lying underneath one of the bags. On request, Wilson produced the Food Lion receipt, which showed that Wilson had paid for the ice cream but not the batteries. When asked, Wilson confirmed that he had purchased only the ice cream, and could not say why the batteries were in the car. Wilson also told the first officer that he had taken Lortab three hours before being stopped.

While the first officer was searching the car, a second officer who was qualified to administer field sobriety tests conducted a horizontal gaze nystagmus (HGN) test on Wilson. The second officer was able to obtain the first two signs, both of which suggested intoxication, but was unable to complete the test because Wilson could not keep his eyes open. The officer could not administer the one-leg stand and walk-and-turn tests because Wilson suffered from a disability. Based on Wilson’s inability to complete the HGN test, the second officer concluded that Wilson was not a safe driver. After consultation, the first officer placed Wilson under arrest and advised him of his implied consent rights. On the driver’s seat, the second officer found Wilson’s wallet, which contained a small plastic bag with two blue pills in it. When asked, Wilson said that the pills were Xanax and that he did not have a prescription for them. After being placed in the patrol car, Wilson consented to having his blood drawn. The blood later tested positive for Xanax and Lortab. The manager of the Food Lion store confirmed that the store sold the kind of batteries found in Wilson’s car. The trial court denied the motion to suppress on grounds including that the officers’ traffic stop was authorized, that Wilson gave consent to search, and that the officers had probable cause to arrest him for DUI.

1. Wilson first contends that the officers did not have authority to conduct the initial search that produced the hand basket and batteries. We disagree.

“[0]ne of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” (Citation and punctuation omitted.) Hunter v. State, 190 Ga. App. 52, 53 (1) (378 SE2d 338) (1989). Specifically, no Fourth Amendment violation occurs when, during the course of a valid traffic stop, an officer obtains consent to search a car. Blitch v. State, 281 Ga. 125, 126 (1) (636 SE2d 545) (2006), citing Salmeron v. State, 280 Ga. 735 (1) (632 SE2d 645) (2006).

Decided February 22, 2011

Reconsideration denied march 11, 2011

Travis A. Williams, for appellant.

Lee Darragh, District Attorney, Wanda L. Vance, Assistant District Attorney, for appellee.

Here, both officers, who were the only two witnesses at the single evidentiary hearing in the case, testified that Wilson consented to the first officer’s search, and Wilson has not contended that this consent was the “tainted product of an initial pretextual stop,” Hunter, 190 Ga. App. at 54 (1). The trial court did not clearly err when it denied Wilson’s motion to suppress on this ground.

2. The trial court also did not err when it denied Wilson’s motion as to the search after his arrest for DUI, which yielded the pills found in his wallet.

(a) The record supports the trial court’s conclusion that Wilson’s arrest for DUI was lawful. “A witness who satisfactorily shows that he had opportunity to observe, and did observe, the condition of another, may testify whether that person was under the influence of intoxicants and the extent thereof, stating the facts upon which the opinion is based.” Lawrence v. State, 157 Ga. App. 264, 265 (277 SE2d 60) (1981). Here, the second officer testified as to the observations which led him to conclude that Wilson was under the influence and provided probable cause for arrest. Castaneda v. State, 292 Ga. App. 390, 393-394 (1) (664 SE2d 803) (2008) (defendant’s stumbling, slurred speech, confusion, and difficulty balancing provided probable cause for DUI arrest, even when some of these symptoms could have been caused by an immediately preceding accident).

(b) “A consent search is one undertaken with knowledge and without objection by the defendant. Once consent is legally obtained, it continues until it is either revoked or withdrawn. Bell v. State, 162 Ga. App. 79, 81 (290 SE2d 187) (1982).” (Citation and punctuation omitted.) Woods v. State, 258 Ga. 540, 542 (371 SE2d 865) (1988). Wilson’s consent to search the passenger compartment of his car was not induced by deception or threat, nor is there evidence that it was withdrawn after the batteries were found, after his arrest, or at any other time. “Absent any evidence to the contrary[,] we cannot assume that the consent was not applicable to the second search made a short time later to seize what had already been admitted to” {Bell, 162 Ga. App. at 81) — here, any drugs that, as Wilson admitted, he had taken before his arrest.

Judgment affirmed.

Phipps, P. J., and McFadden, J., concur.


author: Dillard, Judge.

text:
    A10A2277.
    JUPITER v. THE STATE.
    (707 SE2d 592)
   Dillard, Judge.

Geoffrey Mario Jupiter was tried by a jury and found guilty of armed robbery, aggravated assault, and possession of a weapon during the commission of a crime. He now appeals these convictions, contending that the trial court erred in denying his motions to suppress evidence and for a directed verdict and in overruling an objection to commentary made by the State during its closing argument. Finding no error, we affirm Jupiter’s convictions.

On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict, and Jupiter no longer enjoys a presumption of innocence. So viewed, the record shows that Jupiter and his two cohorts, Ricky Timmons, Jr. and Bridgette Marvette Hines, started 2009 with no pretense of good intentions, deciding to rob a grocery store on New Year’s Day. The evening began with Hines, Jupiter, and Hines’s 12-year-old son picking up Tim-mons to go commit the robbery. Upon arriving at the prospective crime scene, Hines and her son briefly went inside the store but then returned to the car shortly thereafter. The party of four then drove to a darkened parking lot next door, where Hines instructed her son to remove the vehicle’s tag. The group returned to the store but this time parked even farther away. Timmons and Jupiter—wearing dark clothes and masks—went inside the store, armed with guns.

Once they were inside, Jupiter and Timmons demanded money from the clerk, and Jupiter jumped over the counter to grab the money. With a few thousand dollars and some cigars in hand, the men then fled from the store and sped off with Hines behind the wheel. Two law enforcement officers observed the men running and the vehicle speeding from the lot, and they quickly followed the car onto a side road before initiating a stop. Timmons and Jupiter then ran from the car. And while Jupiter successfully escaped, Timmons did not. A jacket and black scarf were later recovered by the police from the direction in which Jupiter fled.

After apprehending Timmons, Hines, and Hines’s son, the officers returned to the crime scene. In a suspicious twist of fate, Jupiter’s mother and two brothers arrived shortly thereafter. After a brief discussion with an officer, Jupiter’s mother gave that officer permission to search her home, which was located less than a quarter-mile from where the officers had stopped the getaway vehicle. A search of the Jupiter home produced a black shirt and a dark pair of pants just inside the entrance of an exterior crawlspace. The clothes were damp, dirtied with fresh mud and leaves, and devoid of spider webs or anything else that would otherwise suggest that these articles of clothing had been under the house for more than a brief period of time.

1. Jupiter argues that the trial court erred in denying his motion to suppress the evidence obtained from the search of his mother’s home. Specifically, he contends that (1) he had standing to challenge the consent given by his mother, (2) his mother’s consent to the search was invalid because “there was no reasonable articulable suspicion of illegal activity at her home,” and (3) the denial of this motion was harmful error because this was the only evidence that corroborated Timmons’s testimony. We disagree.

When a defendant’s own rights are violated, he unquestionably “has standing to suppress evidence obtained through an illegal search or seizure[.]” And at a suppression hearing, the State has the burden of proving that the challenged evidence was obtained through a lawful search and seizure. We review a trial court’s ruling on a motion to suppress evidence using the “any evidence” standard, “which means that we sustain all of the trial court’s findings of fact that are supported by any evidence.” Thus, “[w]e construe all evidence presented in favor of the trial court’s findings and judgment,” accepting the trial court’s decision unless it is clearly erroneous.

At the motion to suppress hearing, it was adduced that an officer questioned Jupiter’s mother when, 30 to 45 minutes after the crime, she arrived at the grocery store and parked near where Hines’s car had been located during the commission of the robbery. The officer pulled up behind the mother with his lights activated after noticing something that looked like a black cloth or mask beside the car and two African-American males getting into the vehicle. Based upon information that the officer had obtained through the ongoing investigation, he suspected that Jupiter was the fleeing suspect; and he had also already learned of Jupiter’s home address. Thus, when the officer discovered that the woman inside the suspiciously parked vehicle was Jupiter’s mother (after requesting and viewing her identification), he naturally asked her to step out of the vehicle to question her about the events that had just transpired. Jupiter’s mother informed the officer that she had not seen her son since earlier in the morning and that she was unaware of whether he was at her home. And while other officers had previously arrived at the mother’s house (after Hines and Timmons informed them of its location), the officer questioning Jupiter’s mother obtained her permission to actually search for Jupiter at her home.

Shortly thereafter, while securing the perimeter, officers spotted the recently discarded clothing in the home’s open crawlspace; and the mother told the officers that there should not have been anything under her house. At the officer’s request, the mother rode to her home in the back of his patrol car because he was concerned that she might call to tip off Jupiter about the impending search. The officer testified, however, that if the mother had objected to or denied his request, he would have allowed her to follow him in her vehicle. The officer further testified that (1) none of the officers investigating the crime ever threatened Jupiter’s mother in any way, (2) she willingly unlocked the house for the officers, and (3) Jupiter’s mother never told any of the officers that she would prefer it if they obtained a search warrant.

Jupiter argued at the suppression hearing that his mother’s consent was only gained after an illegal stop, but neither probable cause nor a search warrant is required to search property when voluntary consent is obtained from “the individual whose property is searched or ... a third party who possesses common authority over the premises to be searched.” And here, we have no doubt that Jupiter’s mother had common authority over the crawlspace where the evidence was obtained because “[t]here was no evidence that [Jupiter] paid rent to his mother for the exclusive use of the [crawlspace] or that he had exclusive domain over the [crawlspace].” Nevertheless, while obtaining valid consent eliminates the need for probable cause or a search warrant, the State must still prove that the consent was freely and voluntarily given; and voluntariness is generally a question of fact for the trial court.

On appeal, Jupiter argues that the officer engaged in a second-tier encounter with his mother that was not supported by a reasonable articulable suspicion of illegal activity; however, the State argues that the officer’s actions amounted to a consensual first-tier encounter. Thus, whether Jupiter’s mother gave valid consent is contingent upon an analysis of the legality of her encounter with law enforcement.

In contending that his mother was illegally detained, Jupiter maintains that there was no testimony that his mother’s identification had been returned or that she was allowed to return to her vehicle. However, we find this argument unavailing as there was also no testimony to suggest the mother did not have her license returned. Moreover, the officer did not command the mother to ride along in his car; he requested that she do so, and she willingly complied. Furthermore, there was no indication that the mother was threatened by police or otherwise pressured to consent to a search of her home. Finally, the reasons why the mother was approached, questioned, and thereafter asked for consent to search her home were all related to the search for Jupiter and the investigation of an armed robbery that had just taken place at the location of the stop not even an hour beforehand. Thus, pretermitting whether the stop was a first- or second-tier encounter, the trial court did not err in denying Jupiter’s motion to suppress because either encounter would have been valid under the foregoing facts and circumstances. The trial court found that the mother’s consent was voluntary and that the officer’s actions were reasonable due to (1) her arrival at the crime scene shortly after the commission of the robbery, (2) the black mask spotted near her vehicle, (3) the mother’s familial relation to Jupiter, and (4) the fact that the more extensive search was only conducted after she gave the officers permission to do so. Accordingly, there is evidence to support the trial court’s finding that, while the officer stopped and questioned the mother, his actions were perfectly reasonable given the totality of the circumstances, and there was nothing presented to rebut the evidence that the mother’s consent to search was entirely voluntary.

2. Jupiter next contends that the trial court should have granted a directed verdict because there was insufficient evidence to corroborate Timmons’s testimony. Specifically, Jupiter argues that the clothing found at his mother’s house did not independently connect him to the crime because witnesses could not identify the clothes discovered by the police as those worn by the perpetrator who fled. We disagree.

The trial court’s denial of Jupiter’s motion is considered by reviewing the evidence in the light most favorable to the jury’s verdict to “determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” And while testimony by a single witness is generally sufficient to establish a fact, in felony cases “where the only witness is an accomplice, the testimony of a single witness is not sufficient[,]” and there must be corroborating circumstances. The sufficiency of corroborating evidence, however, is for the jury to determine, and the evidence may be circumstantial in nature. Nevertheless, when the identity and participation of a person are concerned, the corroborating evidence must be independent evidence that tends to connect the accused with the crime or leads to an inference of guilt.

And while no witness could specifically identify the clothes that were recovered by the police as having been worn by the second robber, these articles of clothing matched descriptions given to the officer that both suspects wore dark attire with full sleeves. Additionally, Jupiter’s mother’s house was located only a quarter-mile from where officers stopped Hines’s car, and the suspect who fled was seen running in that general direction, away from the store. Finally, the articles of clothing were discovered in a state suggesting that they had been recently worn and discarded in the exterior crawlspace of the home. We find that this evidence sufficiently corroborates Timmons’s testimony that Jupiter participated in the robbery.

3. Finally, Jupiter argues that the trial court erred in overruling an objection and failing to rebuke the State for making a pre-deliberation Allen charge argument to the jury during its closing statements. Jupiter, however, has waived this issue for appeal.

To begin with, there is no transcript of the closing arguments made by the parties. Instead, the transcript shows that after the trial court charged the jury, Hines’s counsel made a note on the record of an objection that he made to the State’s closing argument and its reference to another jury being impaneled if the current jury could not reach a decision. The court acknowledged that the statement had been made, that it was objected to by Hines’s counsel, and that the court had overruled the objection during the State’s closing. But Jupiter’s counsel did not join in this objection for the record, and there is no indication that he did so during closing argument either. Additionally, as the State notes in its responsive brief, there is nothing in the record suggesting that Jupiter and Hines agreed that their objections would be mutually applicable. Accordingly, Hines’s objection did not preserve this issue for Jupiter, and Jupiter has failed to show “a substantial error . . . which was harmful as a matter of law.”

Decided March 11, 2011.

David J. Walker, for appellant.

Tracy Graham-Law son, District Attorney, Billy J. Dixon, Assistant District Attorney, for appellee.

For all of the foregoing reasons, we affirm Jupiter’s convictions.

Judgment affirmed.

Barnes, P. J., and Blackwell, J., concur.

        See, e.g., English v. State, 301 Ga. App. 842, 842 (689 SE2d 130) (2010); Lott v. State, 303 Ga. App. 775, 775 (1) (694 SE2d 698) (2010).

       Timmons pleaded guilty to robbery and testified against Jupiter and Hines, who were tried jointly.

       While Jupiter claims that he “does not contest the validity of the stop of his mother at the [grocery store], but [instead] maintains that her purported consent to search her house . . . was not valid,” he in fact does contest the validity of the stop by claiming that the encounter was non-consensual and lacked a “reasonable articulable suspicion of illegal activity,” thus (in his view) rendering his mother’s consent invalid.

        Black v. State, 281 Ga. App. 40, 42 (1) (635 SE2d 568) (2006); see also Lewis v. State, 233 Ga. App. 560, 561-62 (2) (504 SE2d 732) (1998) (“A defendant has standing to suppress evidence obtained through an illegal search or seizure only when his or her own rights are violated, because these rights are personal and cannot he asserted vicariously.” (citation omitted)).

        See, e.g., State v. Fisher, 293 Ga. App. 228, 230 (666 SE2d 594) (2008); Lucas v. State, 284 Ga. App. 450, 451 (644 SE2d 302) (2007).

        Fisher, 293 Ga. App. at 228-29; see also Fleming v. State, 282 Ga. App. 373, 374 (638 SE2d 769) (2006).

        Fisher, 293 Ga. App. at 229 (citation and punctuation omitted); see also Fleming, 282 Ga. App. at 374.

        Fleming, 282 Ga. App. at 374; see also Fisher, 293 Ga. App. at 230.

       The officer also testified that, in his experience, sometimes suspects who flee will call a friend or family member to come pick them up, and law enforcement was at that point searching for an African-American male suspect.

       Jupiter’s brothers followed behind in the family vehicle.

        Black, 281 Ga. App. at 42 (1); see also Smith v. State, 264 Ga. 87, 87 (1) (441 SE2d 241) (1994) (“A warrantless search of a residence may be authorized by the consent of any person who possesses common authority over or other sufficient relationship to the premises to be searched.”).

        Smith, 264 Ga. at 87 (2) (further holding that the mother’s “joint access and unhindered control over the [crawlspace] authorized the trial court to conclude that she had common authority”); see also Montgomery v. State, 155 Ga. App. 423, 424 (1) (270 SE2d 825) (1980) (noting that the voluntary consent of the head of a household “to the search of premises owned or controlled by such head of the household is sufficient to authorize a search of the premises”).

        E.g., State v. Baker, 261 Ga. App. 258, 259 (582 SE2d 133) (2003); Hunter v. State, 190 Ga. App. 52, 53 (1) (378 SE2d 338) (1989).

        E.g., Baker, 261 Ga. App. at 259; Sledge v. State, 239 Ga. App. 301, 303 (1) (a) (521 SE2d 212) (1999).

       Georgia “recognizes three tiers of police-citizen encounters: consensual encounters; brief investigatory stops that require reasonable suspicion; and arrests that require probable cause.” Fisher, 293 Ga. App. at 230 (citation and punctuation omitted); see also Lucas, 284 Ga. App. at 452 (“There are at least three types of police-citizen encounters: verbal communications that involve no coercion or detention; brief stops or seizures that must be accompanied by a reasonable suspicion; and arrests, which can be supported only by probable cause.” (citation and punctuation omitted)). In a second-tier encounter, even in the absence of probable cause, an officer “may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity.” Black, 281 Ga. App. at 43 (1).

       In a first-tier encounter, an officer “may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officer! ] [does] not detain the citizen or create the impression that the citizen may not leave[.]” Lucas, 284 Ga. App. at 452. To this end, “the officer must possess more than a subjective, unparticularized suspicion or hunch[ J” and the resulting action “must be justified by specific and articulable facts” that warrant the intrusion. Black, 281 Ga. App. at 43 (1).

        See Walker v. State, 299 Ga. App. 788, 791 (2) (683 SE2d 867) (2009) (holding consent to search invalid when it was the product of an illegal detention); Black, 281 Ga. App. at 42 (1) (“Whether [the] consent was obtained validly ... is contingent upon whether [the] initial detention and arrest were lawful.”).

        See State v. Felton, 297 Ga. App. 35, 37 (676 SE2d 434) (2009) (noting that the following factors have been given particular scrutiny in determining whether an encounter is consensual: “(a) whether the driver’s documents have been returned . . . ; (b) whether the officer informed the driver that he was free to leave; and (c) whether the driver appreciated that the traffic stop had reached an endpoint”).

        Cf. Felton, 297 Ga. App. at 37 (holding that consent was product of an illegal detention because the “consent was not within the scope of the original traffic stop,” which had ended before consent was given).

        See Robinson u. State, 295 Ga. App. 136, 138 (2) (670 SE2d 837) (2008) (first-tier encounter elevated to second-tier when officers asked individual to step out of vehicle, conducted pat down, ran driver’s license, and put in patrol car during commission of a search); Postell v. State, 279 Ga. App. 275, 276-77 (630 SE2d 867) (2006) (first-tier encounter with valid consent to search when no indication that officer “engaged his siren and emergency equipment, drew his firearm, . . . made any other show of force!,] . . . threatened, coerced, or physically restrained |individual] . . . during the officer’s approach and ensuing conversation”); O’Neal v. State, 273 Ga. App. 688, 689 (616 SE2d 479) (2005) (second-tier encounter when police pulled up behind parked car with lights and siren engaged); Baker, 261 Ga. App. at 259 (encounter transformed into second-tier when officers began a pat down of individuals); Davidson v. State, 257 Ga. App. 260, 263 (1) (b) (570 SE2d 698) (2002) (first-tier encounter escalated to second-tier when officer removed keys from ignition and indicated that individual was not free to leave).

         Compare Groves v. State, 306 Ga. App. 779, 781-82 (703 SE2d 371) (2010) (holding that there were no specific and articulable facts supporting second-tier encounter because, without more, “mere presence in an empty truck plaza parking lot was not sufficient to warrant a traffic stop”); Pritchard v. State, 300 Ga. App. 14, 16 (684 SE2d 88) (2009) (noting that, without more, “an officer does not have reasonable, articulable suspicion to stop an individual who is driving near or parking near a location where crimes have been committed” (citations omitted)).

        See Pruitt v. State, 263 Ga. App. 814, 817 (1) (589 SE2d 591) (2003) (“Whether an incident qualifies as a first-tier encounter is a mixed question of fact and law, and we will sustain the trial court’s findings ... if there is any evidence to support them.” (citation omitted)); see also State v. Hopper, 293 Ga. App. 220, 222 (666 SE2d 735) (2008) (second-tier encounters are permissible when, in the totality of the circumstances, officers have “specific and articulable facts which, taken together with rational inferences from those facts, gave them a particularized and objective basis for suspecting . . . criminal activity”); O’Neal, 273 Ga. App. at 691 (“In determining whether the officers had articulable suspicion to stop a citizen, we look to the totality of the circumstances.” (citation omitted)).

        Bollinger v. State, 259 Ga. App. 102, 102 (1) (576 SE2d 80) (2003); see also White v. State, 250 Ga. App. 783, 783 (552 SE2d 927) (2001) (same).

       OCGA § 24-4-8.

        See, e.g., Myers u. State, 260 Ga. 412, 413 (3) (395 SE2d 811) (1990); Cox v. Stale, 243 Ga. App. 790, 791 (534 SE2d 464) (2000).

        See, e.g., In the Interest of P. A. W., 224 Ga. App. 329, 330 (1) (480 SE2d 347) (1997); Cain v. State, 212 Ga. App. 531, 538 (8) (442 SE2d 279) (1994); Adams v. State, 140 Ga. App. 621, 621 (231 SE2d 547) (1976).

        See Cox, 243 Ga. App. at 791 (finding, inter alia, footprints leading from crime scene to suspect’s mother’s apartment sufficient corroborating evidence); see also Day v. State, 197 Ga. App. 875, 876 (1) (399 SE2d 741) (1990) (“If the verdict is founded on slight evidence of corroboration connecting the defendant with the crime, it can not be said, as a matter of law, that the verdict is contrary to the evidence.” (citation and punctuation omitted)).

        See, e.g., Singleton v. State, 231 Ga. App. 694, 694 (3) (500 SE2d 411) (1998) (“The trial court has broad discretion in controlling the argument of counsel and, unless it clearly appears that the court has abused this discretion and that such abuse has resulted in harm or prejudice to the opposing party, this Court will not undertake to control the exercise of such discretion.”).

        See, e.g., Lewis v. State, 271 Ga. 500, 501 (2) (521 SE2d 193) (1999) (“[Appellant] did not join [co-defendant’s] objections or make any arguments regarding the statement. Therefore, [appellant] cannot raise the issue for the first time on appeal.”); Maxwell v. State, 267 Ga. App. 227, 231 (3) (599 SE2d 228) (2004) (“[I]t is well established that an issue raised by a co-defendant at trial does not preserve the issue for another co-defendant who does not join in the objection.”); see also Cox v. State, 242 Ga. App. 334, 339 (11) (528 SE2d 871) (2000) (“[C]losing argument was not transcribed, and [appellant] did not supplement the record with a stipulation . . .; therefore, the enumeration dealing with improper closing argument... is deemed abandoned.”); Daker v. State, 243 Ga. App. 848, 854 (18) (533 SE2d 393) (2000) (“[Appellant’s] complaints concerning improper comments made by the prosecuting attorney during closing arguments have been waived by his failure to object at trial.”).

        Luker v. State, 291 Ga. App. 434, 435 (2) (662 SE2d 240) (2008); see also Medina v. State, 234 Ga. App. 13, 15 (2) (505 SE2d 558) (1998) (same).


text:
    A10A2346.
    AUSTELL HEALTHCARE, INC. et al. v. SCOTT.
    (707 SE2d 599)
   Andrews, Judge.

Austell Healthcare, Inc. and Travelers Indemnity Company of America (collectively “intervenors”) appeal from the trial court’s grant of Dan Scott’s motion to extinguish their subrogation lien. The trial court held that the intervenors could not prove that Scott had been fully compensated after he settled his lawsuit against third-party tortfeasors for a lump sum. Because the intervenors have come forward with no evidence that the trial court erred in determining that Scott had not been fully compensated, the trial court did not err in extinguishing the lien.

The record shows that Scott was employed by Austell HealthCare when he was injured in an automobile accident during the course and scope of his employment. Travelers Indemnity is Austell HealthCare’s workers’ compensation insurer.

Scott subsequently sued several parties that he claimed were responsible for the accident. At the time of Scott’s suit, Austell and Travelers had a subrogation lien in the amount of $59,030.02 for disability benefits and medical expenses paid to Scott up to that point.

Austell and Travelers filed a motion to intervene in the suit and also requested that they be allowed to conduct discovery. The trial court granted the motion to intervene but denied their request to participate in discovery. The trial court did, however, order that intervenors be provided copies of all discovery materials.

After Scott settled his claim against the tortfeasors for a lump sum of $76,000, he filed a motion to quash the intervenors’s lien, contending that because he had not been fully compensated, the lien should be dismissed. Scott pointed out that he had undergone two shoulder surgeries and it was determined that he was permanently partially disabled. He also stated that the disability benefits paid while he was totally disabled were significantly less than his pre-injury salary. As a result, he argued, the $76,000 paid to settle the tort suit did not equal “past and future indemnity losses coupled with past and future medical expenses.”

The intervenors opposed the motion, and the trial court held a hearing on February 1, 2010 and issued its order three days later. The court ordered that the intervenors’s lien be extinguished and ordered intervenors to pay Scott $1,915 in attorney fees. This appeal followed.

1. First, intervenors argue that the trial court erred in granting the motion to quash their lien. The lien was filed under the provisions of OCGA § 34-9-11.1 (b), which provides:

(b) In the event an employee has a right of action against such other person as contemplated in subsection (a) of this Code section and the employer’s liability under this chapter has been fully or partially paid, then the employer or such employer’s insurer shall have a subrogation lien, not to exceed the actual amount of compensation paid pursuant to this chapter, against such recovery. The employer or insurer may intervene in any action to protect and enforce such lien. However, the employer’s or insurer’s recovery under this Code section shall be limited to the recovery of the amount of disability benefits, death benefits, and medical expenses paid under this chapter and shall only be recoverable if the injured employee has been fully and completely compensated, taking into consideration both the benefits received under this chapter and the amount of the recovery in the third-party claim, for all economic and noneconomic losses incurred as a result of the injury.

The intervenors claim that the trial court erred in concluding that because there was a lump sum settlement, they could not prove that Scott had been fully compensated.

The employer carries the burden of proof of showing that the employee has been fully compensated, whether the employee has received compensation from the tortfeasor through a jury award or by settling his claim against the tortfeasor. City of Warner Robins v. Baker, 255 Ga. App. 601, 604 (565 SE2d 919) (2002). In their response to Scott’s motion to quash the lien, the intervenors came forward with no evidence at all from which the trial court could conclude that Scott had been fully compensated. Moreover, the intervenors chose not to participate in the takedown of the hearing and have provided us with no transcript of that proceeding. We must presume that the intervenors were given the chance to be heard on the issue. “An appellant has the burden of providing us with a sufficient record to enable us to review the enumerations of error raised. When the error is shown only in the appellant’s brief and not by the record, we must assume that the trial court’s rulings were correct.” City of Warner Robins, supra at 602.

Instead, intervenors focus on the language in the trial court’s order stating that “the Intervenor cannot prove that Mr. Scott has been fully compensated.” (Emphasis supplied.) The order tracks the following language in City of Warner Robins v. Baker, supra:

When the employee has received a jury award, an appellate court cannot determine from a general verdict form what portion of an award was meant to compensate the employee for economic losses and what portion was meant to cover noneconomic losses. The same is true when the employee negotiates a settlement of his claim against the tortfeasor and the settlement is a lump sum. A reviewing court cannot determine from the settlement documents what portion of the settlement was allocated to economic losses and what portion was meant to compensate for noneconomic losses. The result is that the lien cannot be enforced, because full and complete compensation cannot be shown.

Id. at 604-605. Accord Paschall Truck Lines v. Kirkland, 287 Ga. App. 497, 499 (651 SE2d 804) (2007); North Bros. Co. v. Thomas, 236 Ga. App. 839, 841 (513 SE2d 251) (1999).

Their argument that the trial court erroneously held that they “cannot” show that Scott was fully compensated is unavailing. “In order to constitute reversible error, both error and harm must be shown.” Kersey v. Williamson, 284 Ga. 660, 663 (3) (670 SE2d 405) (2008). Although it appears that the trial court mistakenly believed that only after a liability award could the court hear evidence on whether the employee had been fully compensated, there is no evidence that this was reversible error. In order to prevail on their argument to this Court that the trial court erred in extinguishing their lien, intervenors must come forward with a proffer of sufficient evidence to show that Scott was fully compensated and that the trial court refused to consider this evidence. They have done neither. Accordingly, there is nothing before us to show that the trial court’s order extinguishing the lien was not proper. This enumeration of error is without merit.

2. Next, intervenors claim that the trial court was required to hold an evidentiary hearing. They cite to no authority in support of this claim and we find none. In any event, as previously stated, the record shows that the trial court did hold a hearing on Scott’s motion to quash the lien and intervenors have not shown that they were prevented from introducing evidence at that hearing or even that they had any evidence to present.

3. The intervenors argue that the trial court erred in not allowing them to participate in discovery. The trial court allowed the intervenors to receive copies of discovery but not to conduct it themselves. We have previously held that an intervenor may file “whatever briefs, evidence, or other papers it chooses,” and also “may choose discovery tactics different from those of a plaintiff. . . .” Intl. Maintenance Corp. v. Inland Paper Board & Packaging, 256 Ga. App. 752, 754 (1) (569 SE2d 865) (2002).

Nevertheless, in order to prove reversible error, the intervenors must come forward and point to pertinent evidence that was not produced during discovery between the parties. They did not do so below and have not done so on appeal. Accordingly, this enumeration presents nothing for our review.

4. The intervenors claim that the trial court erred in granting attorney fees to Scott. The intervenors’s argument on appeal is that this award was an abuse of discretion because the trial court based the award on the “same erroneous legal theory ... as its substantive ruling.” The standard of review for an award of attorney fees under OCGA § 9-15-14 (b) is abuse of discretion. See Bircoll v. Rosenthal, 267 Ga. App. 431, 439 (600 SE2d 388) (2004).

The trial court stated in its order:

Additionally, the Intervenor action in forcing the plaintiff to file a Motion [to extinguish the lien,] in the face of known precedents] contrary to [its] position[,] coupled with my previous ruling of June 18, 2008, I hereby Order that the Intervenor pay the plaintiffs attorney fees of $1915.00.

In a footnote, the trial court reiterated:

The June 18, 2009 Order clearly stated, in part, “only after a liability award, for the Plaintiff, if any, shall this court hear evidence on those issues relevant to indemnity and make its ruling from the bench.” There has been no “award” in this case. Therefore, the Intervenor’s insistence on failing to withdraw their lien after the issuance of the June 18, 2009, Order and a compromise settlement between defenda[n]ts and the plaintiff, while forcing the plaintiff to file a Motion to Extinguish is frivolous of the Intervenor under OCGA § 9-15-14 at el [sic].

Decided March 11, 2011.

Mary K. Rogers, Christopher R. Reeves, for appellants.

Turkheimer & Hadden, John D. Hadden, Timothy J. Santelli, for appellee.

If an employer has intervened in an employee’s lawsuit against a third-party tortfeasor, after the employee has obtained a verdict in his favor or settled the case, it is the trial court’s duty to consider evidence and determine whether the employee has been fully and completely compensated. See Gen. Elec. Membership Corp. v. Garnto, 266 Ga. App. 452, 453-454 (597 SE2d 527) (2004). In doing so, the trial court is required to weigh the evidence and make a factual determination as to whether the employer has carried its burden. Id. Thus, initially allowing a lien viability hearing “only after a liability award” and subsequently sanctioning the intervenors for refusing to withdraw their lien on this basis was an abuse of discretion. Accordingly, that portion of the trial court’s order awarding attorney fees to Scott is reversed.

Judgment affirmed in part and reversed in part.

Ellington, C. J., and Doyle, J., concur.

       The intervenors did not participate in the takedown of that hearing and have not filed a transcript of the hearing on appeal.

       (Footnote omitted.)