author: Phipps, Presiding Judge.

text:
    A13A0035.
    MITCHELL v. THE STATE.
    (742 SE2d 479)
   Phipps, Presiding Judge.

Mark Mitchell filed this interlocutory appeal from the trial court’s denial of his motion to suppress evidence obtained as a result of a police roadblock, asserting that the roadblock was unlawful because it was not implemented for a legitimate primary purpose. For the reasons that follow, we affirm the trial court’s ruling.

“On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous.” “Rulings involving solely legal issues are reviewed de novo.”

In examining the propriety of roadblock stops, the issue for resolution is not whether there was probable cause to stop the vehicle, but whether the roadblock stop was otherwise implemented and conducted in a manner as to demonstrate that the stop of the vehicle was reasonable under the Fourth Amendment. To justify a roadblock that serves legitimate law enforcement objectives, 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.

Construing the evidence most favorably to uphold the court’s findings and judgment, the record shows that a captain with the Laurens County Sheriff’s Department authorized a roadblock to occur on March 17, 2006 at a particular time and location in Laurens County. The captain executed a form which reflected his authorization for the roadblock. The form, which was admitted into evidence at the May 2012 hearing on the motion to suppress, pertinently provided:

TRAFFIC ENFORCEMENT UNIT
ROAD BLOCKS/LICENSE CHECKS
CRIMINAL LAW:
Check points shall abide with Georgia Constitution and U. S. Constitution.
[case citations]
OBJECTIVE:
Traffic Enforcement Unit (TEU) shall conduct License Checks/ Road Blocks in an effort to assist with public safety, enforce the law, and to promote order, peace, and dignity in Laurens County, Georgia. During the course of the License Checks/ Road Blocks officers from the Traffic Enforcement Unit shall be on alert for illegal activity.
TRAINING:
Officers are trained and experienced in D.U.I. detection and standardized field sobriety testing. Officers have also completed POST certified courses in D.U.I. detection and standardized field sobriety testing.
CHECK POINT STIPULATION:
The Traffic Enforcement Unit shall conduct a Road Block/ License Check on [date, time, location].
Implementing Traffic Supervisor for Road Block/License Check: [name, rank, date, time].

When asked at the hearing the purpose of the roadblock, the captain responded, “[w]e do roadblocks when we have a lot of traffic inflow for safety reasons and for sobriety purposes.”

A law enforcement officer with the sheriff’s department, whose role at the roadblock was to check licenses, vehicle registrations and driver sobriety, approached Mitchell’s vehicle on March 17 when it arrived at the roadblock. After asking Mitchell for his license, the officer detected an odor of marijuana emanating from the vehicle. The officer obtained Mitchell’s consent to search the vehicle, and found suspected marijuana in the trunk.

Mitchell moved to suppress the evidence obtained during the stop, contending that the roadblock had not been implemented for a legitimate primary purpose. After a hearing, the court denied Mitchell’s motion to suppress, finding that the primary purpose of the roadblock was to check driver’s licenses, that such was a proper purpose, and that other purposes stated in the authorization form were secondary to that purpose.

“[W]hen a motion to suppress is heard by the trial judge, that judge sits as the trier of facts” and, as set out above, the appellate court “has an obligation to construe the evidence most favorably to support [the trial court’s] finding and judgment.” As to the issue raised in this appeal (whether the roadblock was implemented for a legitimate primary purpose), “the law only requires that some admissible evidence, whether testimonial or written, show that supervisory officers . . . had a legitimate primary purpose for” conducting the roadblock. “ ‘[W]e consider all the available evidence in order to determine the relevant primary purpose’ ” of the roadblock.

In this case, some admissible evidence supports the trial court’s finding that the primary purpose of the roadblock was to check driver’s licenses. Á driver’s license check has been held to be a legitimate primary purpose for a roadblock. Further, even if the roadblock was implemented “for safety reasons and for sobriety purposes,” as indicated by the captain’s testimony, those were also lawful primary purposes. Thus, there was evidence to support the trial court’s finding that the roadblock was conducted for a legitimate purpose, and the court did not err in denying the motion to suppress.

Decided April 30, 2013.

Catherine S. Bernard, for appellant.

L. Craig Fraser, District Attorney, Leslie L. Ray, Assistant District Attorney, for appellee.

Mitchell’s reliance on State v. Morgan as requiring suppression is misplaced. In that case, this court affirmed the grant of a motion to suppress because the trial court’s pertinent findings — that the roadblock was not authorized for the date on which the defendant was stopped, and the primary purpose of the roadblock was general law enforcement — were not clearly erroneous. In Morgan (in addition to the date discrepancy), the authorizing officer had “unambiguously testified that the decision to implement the roadblock was a result of an influx of drug cases, and he added, ‘any criminal actiuity[,] that’s what we’re out there for.’ ” And in Morgan, “[t]he written authorization clearly indicate [d] that the purpose of the checkpoint [conducted by the “Interstate Criminal Enforcement Unit”] was general law enforcement, and the sign posted on the interstate [indicated] that it was a DUI/drug checkpoint.” In that case, “all of the evidence indicate [d] that the primary purpose of the roadblock was general law enforcement,” which was not a proper primary purpose. Here, however, the traffic enforcement unit’s roadblock, “set up primarily as a means to perform routine traffic checks [,] was valid,” and the trial court did not err in denying Mitchell’s motion to suppress.

Judgment affirmed.

Ellington, C. J., and Branch, J., concur.

        Miller v. State, 288 Ga. 286, 287 (1), n. 1, 290 (2) (702 SE2d 888) (2010) (citation and punctuation omitted).

        State v. Dymond, 248 Ga. App. 582, 584 (1) (546 SE2d 69) (2001) (citation omitted); State v. Brown, 315 Ga. App. 154 (726 SE2d 654) (2012).

        Brown, supra at 156 (citations and punctuation omitted); Owens v. State, 308 Ga. App. 374, 375 (1) (707 SE2d 584) (2011).

        Miller, supra.

       Id. at 286 (1) (footnote omitted).

       Id. at 288 (1).

        Kellogg v. State, 288 Ga. App. 265, 268-269 (1) (b) (653 SE2d 841) (2007) (citations and punctuation omitted); see Clark v. State, 318 Ga. App. 873, 875-876 (1) (a) (734 SE2d 839) (2012).

        State v. Morgan, 267 Ga. App. 728, 731-732 (600 SE2d 767) (2004), citing Ferguson v. City of Charleston, 532 U. S. 67, 81 (III) (121 SCt 1281, 149 LE2d 205) (2001).

       See Miller, supra.

       See Kellogg, supra at 267 (1) (a); Buell v. State, 254 Ga. App. 456, 457 (562 SE2d 526) (2002) (purpose of roadblock was not overly broad where it was conducted to check for driver’s licenses, proof of insurance, driver impairment, seat belt and child restraint use, defective equipment, and expired tags).

       See Clark, supra at 875-876 (1) (a) (there was some evidence to support trial court’s factual conclusion that purpose of roadblock was legitimate, where sergeant testified that a primary purpose was DUI detection); Kellogg, supra at 269 (l) (b) (affirming trial court’s ruling that roadblock was authorized for a legitimate primary purpose; officer’s testimony that the primary purpose of the roadblock was to check for driver’s licenses and insurance cards, coupled with presence of DUI countermeasures team, supported the conclusion that the roadblock was constitutional); Bennett v. State, 283 Ga. App. 581, 583 (642 SE2d 212) (2007) (where authorizing officer testified that the purpose of the roadblock was to check for seatbelt infractions and DUI offenders, trial court did not err in denying motion to suppress based on claim that there was no evidence of a legitimate primary purpose).

       See Sutton v. State, 297 Ga. App. 865, 868-869 (678 SE2d 564) (2009) (where sergeant testified that roadblock was established for traffic control and traffic enforcement, such as to check for driver’s licenses, insurance, tags, and seatbelt violations, proper primary purpose was established, even though the sergeant had agreed on cross-examination that the purpose was crime suppression; nothing in the sergeant’s testimony indicated that the roadblock was a pretext to discover crimes unrelated to traffic safety); Yingst v. State, 287 Ga. App. 43, 44 (650 SE2d 746) (2007) (affirming trial court’s denial of motion to suppress based on purpose of roadblock, where authorizing document indicated purpose of roadblock was “OZT,” and officer testified that “OZT” referred to a “Zero Tolerance” campaign, during which license and safety checks would be conducted at roadblocks).

       Supra.

         Id. at 731-732.

       Id. at 732.

       (Emphasis supplied.)

       Id.

       Id.

        LaFontaine v. State, 269 Ga. 251, 253 (3) (497 SE2d 367) (1998) (citations omitted).


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A13A0081.
    ROLLAND v. THE STATE.
    (742 SE2d 482)
   BARNES, Presiding Judge.

A jury found Keno Rolland guilty of driving under the influence to the extent it was less safe for him to drive (“DUI less safe”), driving under the influence of alcohol with an unlawful blood-alcohol concentration (“DUI per se”), and failure to maintain a lane. Rolland filed a motion for new trial, which the trial court denied. On appeal, Rolland contends that (1) the trial court impermissibly commented on the evidence in violation of OCGA § 17-8-57; (2) the trial court abused its discretion in denying his motion for funds to hire an expert to testify at the new trial hearing; and (3) his trial counsel rendered ineffective assistance. For the reasons that follow, we affirm.

Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to the jury’s verdict. Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). So viewed, the evidence showed that at approximately 1:00 a.m., a patrol officer with the Athens-Clarke County Police Department observed a vehicle driven by Rolland traveling westbound on Lexington Road. The officer determined by radar that the vehicle was traveling 62 mph in a posted 45 mph zone and observed that the vehicle failed to maintain its lane twice. The officer activated his emergency lights, but Rolland traveled an additional half a mile before stopping his vehicle. Once Rolland brought his vehicle to a complete stop, half of his vehicle was still on the road and half was on the shoulder of the road. Concerned that the vehicle was only partially off the road, the officer approached Rolland and requested that he move his vehicle to a safer location, and Rolland complied.

When the officer again approached the vehicle, Rolland presented his driver’s license, apologized for failing to maintain his lane, and told the officer that he had drifted out of his lane because he had been looking at the cover of a video he had just purchased. As Rolland spoke, the officer smelled alcohol on his breath and observed that his eyes were bloodshot. The officer asked Rolland if he had been drinking alcohol. Rolland initially denied drinking, but ultimately admitted that he had consumed two beers and a shot of vodka.

The officer asked Rolland to exit his vehicle and submit to a series of field sobriety tests. After obtaining Rolland’s consent, the officer administered three field sobriety tests — the horizontal gaze nystagmus (“HGN”), the walk and turn, and the one-leg stand. Rolland exhibited six out of six clues of impairment on the HGN test, four out of eight clues on the walk and turn test, and four out of four clues on the one-leg stand test. He also tested positive for the presence of alcohol on the officer’s handheld alco-sensor breath testing device.

Based on his observations, the officer formed the opinion that Rolland was under the influence of alcohol to the extent that he was less safe to drive. He arrested Rolland and read to him the implied consent warning for drivers over the age of 21. Rolland agreed to a State-administered breath test. The officer transported Rolland to jail and administered two breath tests on the Intoxilyzer 5000. The first breath sample taken at 1:47 a.m. showed a blood-alcohol concentration of 0.087 grams, and the second sample taken three minutes later showed a concentration of 0.086 grams.

Rolland was charged by accusation with DUI less safe, DUI per se, and failure to maintain a lane. At trial, the sole witness was the patrol officer who had conducted the traffic stop and administered the breath test, and he testified to the events as set out above. The officer further testified that he had a valid permit to operate the Intoxilyzer 5000, that the machine appeared to be in good working order with no components or parts missing on the day of Rolland’s arrest, and that the machine successfully passed all self-diagnostic tests that were performed when Rolland’s breath samples were taken. Additionally, through the officer’s testimony, the State introduced two certificates of inspection for the Intoxilyzer 5000, reflecting that the machine had been thoroughly inspected and tested by the Georgia Bureau of Investigation, Division of Forensic Sciences, approximately two months before Rolland’s arrest and three months after his arrest.

The jury found Rolland guilty of the three charged offenses. Rolland moved for a new trial, contending, among other things, that his trial counsel had been ineffective. To support his ineffective assistance of counsel claim, Rolland also moved for funds to hire an expert to testify at the new trial hearing about the accuracy of the Intoxilyzer 5000 results. The trial court denied Rolland’s motion for funds to hire an expert, and, after conducting an evidentiary hearing, denied his motion for new trial. This appeal followed.

1. Rolland contends that the trial court impermissibly commented on the evidence on two separate occasions by making statements in the presence of the jury “about the history and accuracy of Georgia’s Intoxilyzer machines.” “It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” OCGA § 17-8-57. Regardless of whether defense counsel objected, if the trial court violates this statutory provision, we are “required to order a new trial, and there can be no finding of harmless error.” (Footnotes omitted.) Sauerwein v. State, 280 Ga. 438, 439 (2) (629 SE2d 235) (2006). See State v. Gardner, 286 Ga. 633, 634 (690 SE2d 164) (2010). Mindful of these principles, we turn to the two occasions in which Rolland contends that the trial court made impermissible comments.

(a) During defense counsel’s cross-examination of the patrol officer, counsel asked a series of questions regarding the history of the Intoxilyzer 5000 model. The following exchange occurred:

DEFENSE COUNSEL: And you transported [Rolland] to the jail where there is an Intox 5000.
OFFICER: I did.
DEFENSE COUNSEL: Now that is the model that is used here in Georgia as you stated earlier, and that is the model that Georgia actually adopted in 1994. Is that correct?
OFFICER: I can’t speak to when it was adopted. I do know that’s the only unit used in Georgia.
DEFENSE COUNSEL: How long have you been on the force you said?
OFFICER: Since 2003.
DEFENSE COUNSEL: And that’s been the machine you used the entire time.
OFFICER: That’s correct.
DEFENSE COUNSEL: And the Intox model was being used well before that.
OFFICER: It’s my assumption, yes.
DEFENSE COUNSEL: Would it surprise you to know that it’s been used for over 25 years in Georgia?
OFFICER: No.
PROSECUTOR: Your Honor, I don’t believe that that’s correct information that she’s giving the witness. There [have] been other models of the Intoxilyzer that have been used, but this officer can’t testify as to what was used prior to his becoming a police officer. I think this is an improper line of questioning.
TRIAL COURT: I don’t think that this officer has any ability to testify, but I think that your question is inaccurate to begin with because there have been various models since the fifties that have been breath testing instruments.
DEFENSE COUNSEL: Yes, sir, since the fifties, absolutely.
TRIAL COURT: Right. But ... I think your question was inappropriate and inaccurate because I don’t think that the instrument that’s being used and has been used most recently has been in use for 25 years.
DEFENSE COUNSEL: No, sir, not the individual model.
TRIAL COURT: . . . [W]ell, that’s what you said, as I understood you said for 25 years, and I don’t think that’s an accurate statement but you may proceed.
DEFENSE COUNSEL: And just to clarify, you said since you joined the force in 2003 the Intox 5000 was being used by Georgia.
OFFICER: Well, I became certified to operate the Intox in 2005, and I know for a fact since then, that has been what has been used in Georgia.

Contrary to Rolland’s argument, the colloquy between the trial court and defense counsel did not violate OCGA § 17-8-57. Read in context, the trial court’s remarks were aimed at redirecting defense counsel away from a series of questions about the history of the Intoxilyzer 5000 that required the testifying officer to speculate and that assumed facts not in evidence about how long that model had been used in Georgia. OCGA § 17-8-57 does not prohibit a trial court from inquiring into the direction defense counsel is going with a particular line of questioning and encouraging counsel to move forward. See Butler v. State, 290 Ga. 412, 416 (4) (721 SE2d 876) (2012); Creed v. State, 255 Ga. App. 425, 427 (1) (565 SE2d 480) (2002). See also Adams v. State, 282 Ga. App. 819, 824 (4) (640 SE2d 329) (2006) (trial courts are authorized “to control the conduct of the trial and to guide the defense attorney to ensure a fair trial and the orderly administration of justice”) (punctuation omitted).

Rolland, however, argues that the trial court’s comments went beyond redirecting defense counsel’s line of questioning about the history of the Intoxilyzer 5000 because the court assumed certain things as facts that had not been proven during the trial of the case. Specifically, the trial court stated that “there have been various models since the fifties,” and “I don’t think that the instrument that’s being used and has been used most recently has been in use for 25 years.” As Rolland points out, there was no testimony at trial reflecting that various models of the Intoxilyzer had been used since the 1950s or that the current model, the Intoxilyzer 5000, had been in use for less than 25 years.

It is true that OCGA § 17-8-57 is violated when “the court’s comment assumes certain things as facts and intimates to the jury what the judge believes the evidence to be.” (Citation and punctuation omitted.) Johnson v. State, 222 Ga. App. 722, 727 (6) (475 SE2d 918) (1996). “Courts of this State have always recognized, however, that a statement by a trial court concerning a fact that is uncontested or is not in dispute does not constitute a violation of this statute.” Sauerwein, 280 Ga. at 439 (2). See Thomas v. State, 27 Ga. App. 38, 40 (107 SE 418) (1921) (statute prohibiting expressions of opinion by trial court regarding what has or has not been proven “refers to the expression or intimation of an opinion touching some fact at issue in the case, and not to something that is conceded by both parties”) (citations and punctuation omitted). Here, the record reflects that when the trial court made its comments regarding the history of the Intoxilyzer, defense counsel expressly agreed with them and then went on to clarify her question about the history of the Intoxilyzer to the patrol officer. There is no violation of OCGA § 17-8-57 “when the complaining party agrees with the remarks when they are made” by the trial court. Barnes v. State, 269 Ga. 345, 355 (16) (496 SE2d 674) (1998). Moreover, at the close of the trial, the trial court charged the jury:

The court, that is I, intimate and express no opinion as to what facts have or have not been proven by the evidence in this case or as to what inferences are or are not to be logically deduced by you from the facts and circumstances and proof, or as to what your verdict should be, but I submit the whole question of fact and every question of fact to you for your determination without judicial interference.

In these circumstances, we cannot say that the trial court violated OCGA § 17-8-57. See Ellis v. State, 292 Ga. 276, 282 (3) (736 SE2d 412) (2013); Creed, 255 Ga. App. at 428 (1).

(b) Also during the cross-examination of the patrol officer, defense counsel attempted to question him about a newer model of the Intoxilyzer. The following exchange occurred:

DEFENSE COUNSEL: And are you aware that there is an Intoxilyzer 8000 that exists on the market?
PROSECUTOR: Your Honor, I’m going to object. That’s not an instrument that’s used in the state of Georgia. It’s not relevant to this case.
TRIAL COURT: I totally sustain that objection, counsel, and there’s no basis for which to even ask that question. The instrument that’s in use today and has been approved by the Department of Forensic Services in the state of Georgia is the instrument that this officer, I think, has admitted his permit in connection therewith, so I think you already know the answer to the question as to which instrument is being currently used. I mean, I think that’s in evidence.
DEFENSE COUNSEL: Yes, sir, that is in evidence.
TRIAL COURT: And the one he’s been trained and certified to operate. You can ask him questions about that, but some other instrument that has not been accepted or approved by the state of Georgia is actually irrelevant. So I sustain the objection.
DEFENSE COUNSEL: I’ll move on, Your Honor.

Again, we conclude that the colloquy between the trial court and defense counsel fails to disclose a violation of OCGA § 17-8-57. The trial court’s statements were clearly intended to explain its reason for sustaining the State’s relevancy objection to questions about the Intoxilyzer 8000. “A trial judge’s explanation for a ruling on an objection neither constitutes an expression of opinion nor amounts to a comment on the evidence.” (Citations and punctuation omitted.) Williams v. State, 303 Ga. App. 222, 232 (8) (692 SE2d 820) (2010). See Boyd v. State, 286 Ga. 166, 168 (3) (686 SE2d 109) (2009) (“Pertinent remarks made by a trial court in discussing the admissibility of evidence or explaining its rulings do not constitute prohibited expressions of opinion.”) (citations and punctuation omitted). Furthermore, as previously noted, the trial court later charged the jury that the court did not intimate or express any opinion about what facts had or had not been proven in the case. Accordingly, we discern no violation of OCGA § 17-8-57. See Ellis, 292 Ga. at 282 (3); Creed, 255 Ga. App. at 428 (1).

2. Rolland also contends that the trial court abused its discretion in denying his motion for funds to hire an expert to testify at the new trial hearing in support of his ineffective assistance of counsel claim. He maintains that an expert was critical to his argument that his trial counsel was ineffective for failing to seek funds for or subpoena an expert to challenge the accuracy of the Intoxilyzer results at trial.

“The authority to grant or deny a criminal defendant’s motion for the appointment of an expert witness rests with the sound discretion of the trial court, and, absent abuse of that discretion, the trial court’s ruling will be upheld.” Crawford v. State, 267 Ga. 881, 883 (2) (485 SE2d 461) (1997). Among other things, the motion should “identify by name and qualifications a specific expert” sought by the defendant. Id. at 884 (2). See Hall v. State, 255 Ga. App. 631, 633 (3) (566 SE2d 374) (2002) (motion for funds to hire an expert should include, among other things, “the identity of the expert”). Compare Dingier v. State, 281 Ga. App. 721, 722 (1) (637 SE2d 120) (2006) (motion for funds not defective for failing to identify expert by name, where “the identity of [the defendant’s] proposed expert was known to the trial court since the court previously had provided [the defendant] with funds to enter into preliminary discussions with his proposed expert”). Furthermore, when a defendant makes a post-trial motion for funds to hire an expert, the defendant must show that the trial court’s denial of the motion prejudiced him in some manner. See Towry v. State, 304 Ga. App. 139, 147 (2) (f), n. 6 (695 SE2d 683) (2010).

Rolland cannot show that the trial court abused its discretion in denying his post-trial motion for funds because his written motion failed to identify by name and qualifications a specific expert sought by him, and, unlike in Dingier, the trial court had not otherwise been made aware of the identity of a proposed expert through prior proceedings in the case. Moreover, Rolland cannot show that he suffered any prejudice as a result of the trial court’s denial of his motion. Rolland sought an expert to testify at the new trial hearing to support his claim that his trial counsel had been ineffective for failing to secure an expert to challenge the accuracy of the Intoxilyzer 5000 results at trial. But, as explained infra in Division 3 (a), Rolland cannot succeed on the prejudice prong of his ineffective assistance claim because any expert testimony introduced at trial would have been cumulative of evidence that was elicited from the patrol officer on cross-examination. Consequently, Rolland cannot show that he was prejudiced by the denial of his post-trial motion for funds to hire an expert, given that expert testimony at the new trial hearing would not have changed the fact that Rolland could not succeed on his ineffective assistance claim. See Towry, 304 Ga. App. at 147 (2) (f), n. 6.

3. Rolland argues that his trial counsel was ineffective in two separate respects.

In order to succeed on his claim of ineffective assistance, [Rolland] must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). If [Rolland] fails to meet his burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(Citations and punctuation omitted.) Lynch v. State, 291 Ga. 555, 556 (2) (731 SE2d 672) (2012).

(a) Rolland first contends that his trial counsel was ineffective for failing to seek funds for or subpoena an expert who could challenge the accuracy of the Intoxilyzer 5000 results. At the new trial hearing, Rolland proffered that such an expert would have testified about the “built-in error in the breath sampling” and the “lack of perfection in the result that’s ticked out [from the Intoxilyzer].” More specifically, Rolland contends that expert testimony would have shown that the measurement of blood-alcohol concentration by the Intoxilyzer 5000 has a “sampling variability” or “margin of error” of plus or minus 0.01 grams. Because Rolland’s first breath sample showed a blood-alcohol concentration of 0.087 grams and his second sample showed a concentration of 0.086 grams, Rolland maintains that expert testimony about the “sampling variability” or “margin of error” would have supplied the jury with a reasonable basis for finding that his blood-alcohol concentration was actually below the legal limit of 0.080 grams. See OCGA § 40-6-391 (a) (5). As such, Rolland argues that expert testimony was critical in this case and that his trial counsel was ineffective for failing to secure such testimony at the trial.

Pretermitting whether Rolland’s trial counsel was deficient for failing to seek funds for or subpoena an expert at trial, we conclude that Rolland’s ineffective assistance claim fails because he cannot show prejudice resulting from the alleged deficiency. The failure to call an expert at trial does not prejudice the defendant if the expert’s testimony would have been cumulative of testimony elicited from other witnesses by defense counsel during trial. See Gibbs v. State, 316 Ga. App. 431, 432 (729 SE2d 563) (2012); Tyler v. State, 279 Ga. App. 809, 814 (3) (b) (632 SE2d 716) (2006), disapproved in part on other grounds by Schofield v. Holsey, 281 Ga. 809, 812 (II), n. 1 (642 SE2d 56) (2007). See also Wesley v. State, 286 Ga. 355, 358 (3) (h) (689 SE2d 280) (2010) (pointing out that “trial counsel’s failure to present cumulative evidence through additional testimony does not amount to ineffective assistance”). Here, the expert’s testimony would have been cumulative of testimony elicited from the patrol officer on cross-examination.

The record reflects that during the cross-examination of the patrol officer, Rolland’s trial counsel asked a series of questions about the accuracy of the results generated by the Intoxilyzer 5000 based on the officer’s training and certification to operate the machine. The patrol officer admitted that “there’s a sampling variability of .010 grams” and that this variability reflects “a margin of error for the breath sample.” When asked if that “essentially means that the breath sample number that comes out on the ticket [from the Intoxilyzer] . .. could be a .010 grams plus or minus what the actual blood content is,” the officer responded, “That’s correct.” During closing argument, trial counsel highlighted the patrol officer’s testimony about the accuracy of the Intoxilyzer 5000 results and argued that the officer’s testimony

means with sample variability that [Rolland] could have blown a .076 and a .077 if that machine was operating perfectly on the night he was arrested. Now, ladies and gentleman, honestly if that’s not a reasonable doubt, I’m not sure what is. We’ve heard it clearly from the officer that there is that sample variability within the machine. ... It doesn’t sound like a completely accurate test when we’re talking about blood alcohol concentrations that are this low.

In light of the patrol officer’s testimony about the accuracy of the Intoxilyzer results and the emphasis placed upon it by trial counsel during closing argument, there is no reasonable probability that the outcome of the trial would have been different if Rolland’s trial counsel had requested funds and called an expert. Accordingly, the trial court did not err in denying Rolland’s motion for a new trial predicated on this ineffective assistance claim. See Humphrey v. Morrow, 289 Ga. 864, 874 (II) (B) (2) (717 SE2d 168) (2011); Wesley, 286 Ga. at 358 (3) (h); Tyler, 279 Ga. App. at 814 (3) (b).

(b) Rolland further contends that his trial counsel was ineffective for failing to object to testimony from the patrol officer on direct examination that a defendant who exhibits four out of six clues on the HGN field sobriety test has “a 77 percent probability that he is impaired.” As with the previous allegation of ineffective assistance, we need not determine whether Rolland’s trial counsel was deficient for failing to object to this testimony because Rolland cannot prove that he was prejudiced by the failure.

Decided April 30, 2013.

Jo C. Nesset-Sale, for appellant.

Carroll R. Chisholm, Jr., Solicitor-General, Barbara P. Quilliams, Assistant Solicitor-General, for appellee.

During his rebuttal to the State’s case in closing argument, Rolland’s trial counsel confronted the patrol officer’s testimony and argued:

[The officer] also said that if the [HGN] test is done completely accurately and someone fails that test that it’s 77 percent accurate. Well, what that means is that it’s 23 percent wrong. It’s wrong 23 percent of the time, even if it’s done exactly right.. . . [I]f you’re wondering what a reasonable doubt is, it might be 23 percent of the time.

In light of this rebuttal, and given the significant evidence supporting Rolland’s DUI less safe conviction, “we cannot find a reasonable probability that the outcome of the case would have been different if trial counsel had objected to the allegedly improper statement.” (Citation and punctuation omitted.) Brown v. State, 293 Ga. App. 633, 637 (1) (d) (i) (667 SE2d 899) (2008).

Judgment affirmed.

Miller and Ray, JJ., concur.

       We initially remanded Rolland’s appeal to the court below on the ground that it was not ripe for review because the trial court had entered a written sentence on only one of the counts and had made no notation of any merger of counts. See Bass v. State, 284 Ga. App. 331, 332 (643 SE2d 851) (2007). On remand, the trial court entered a revised written sentence in which the court noted that Rolland’s DUI less safe conviction merged into his DUI per se conviction and sentenced Rolland on his convictions for DUI per se and failure to maintain a lane. The case was then transmitted back to this Court for re-docketing because the notice of appeal, at that point, had ripened. See id.

       Although a new trial is not required in this case as a result of the trial court’s comments, “we take this opportunity to warn trial courts to avoid making the type of remarks made by the trial court in this case in order to diligently avoid any appearance of partiality.” Sauerwein, 280 Ga. at 440 (2).

       Rolland asserts in a separate enumeration of error that at the new trial hearing, the trial court improperly refused to allow him to make a proffer of what an expert on the accuracy of Intoxilyzer test results would have testified. However, the transcript of the new trial hearing reflects that while the trial court initially denied Rolland’s request to make a proffer of the expert’s testimony, the court allowed Rolland to go forward with a proffer at the end of the hearing.


author: Ray, Judge.

text:
    A13A0143.
    COSPER v. THE STATE.
    (742 SE2d 504)
   Ray, Judge.

On March 28, 2011, Christopher Lee Cosper entered a plea of guilty to child molestation and was sentenced to 30 years in custody to run concurrently with the sentence he was currently serving. In July 2012, he filed a pro se motion for leave to file an out-of-time appeal, which the trial court denied. Proceeding pro se, Cosper appeals, arguing issues involving the indictment, jurisdiction, venue and that he was subjected to double jeopardy. For the reasons that follow, we affirm the trial court.

A trial court’s denial of a criminal defendant’s motion for an out-of-time appeal is directly appealable when the conviction at issue has not been the subject of a previous appeal, and we review that decision for abuse of discretion. McMullen v. State, 292 Ga. 355, 355 (1) (737 SE2d 102) (2013); Jackson v. State, 313 Ga. App. 483 (722 SE2d 80) (2011).

Decided April 30, 2013.

Christopher L. Cosper, pro se.

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

Out-of-time appeals are designed to address the constitutional concerns that arise when a criminal defendant is denied his first appeal of right because the counsel to which he was constitutionally entitled to assist him in that appeal was professionally deficient in not advising him to file a timely appeal and that deficiency caused prejudice.

(Citations omitted.) Stephens v. State, 291 Ga. 837, 837-838 (1) (733 SE2d 266) (2012). In this case, Cosper “did not allege that his failure to file a timely appeal of his conviction was due to any ineffective assistance of counsel, and that motion was therefore correctly denied.” McMullen, supra at 355 (2).

Judgment affirmed.

Barnes, P. J., and Miller, J., concur.


author: Miller, Judge.

text:
    A13A0252.
    THE STATE v. MULLINS et al.
    (742 SE2d 490)
   Miller, Judge.

Jacqueline Mullins and her husband Terrell Mullins filed a plea in bar asserting that their indictment for theft was barred by the applicable four-year statute of limitation under OCGA § 17-3-1 (c). The trial court granted the plea in bar and the State appeals. The State contends that the trial court erred in applying OCGA § 17-3-1 (c) instead of OCGA § 17-3-2.2, which the State argues creates a 15-year statute of limitation when the victim is over the age of 65. For the following reasons, we affirm.

On appeal from the grant or denial of a plea in bar, “[wjhere the evidence is uncontroverted and no question regarding the credibility of witnesses is presented [as here], we review de novo the trial court’s application of the law to undisputed facts.” (Punctuation and footnote omitted.) Barlowe v. State, 286 Ga. App. 133 (648 SE2d 471) (2007). “The State has the burden of proving that the case is not barred by the statute of limitation.” (Citations and punctuation omitted.) State v. Bair, 303 Ga. App. 183 (692 SE2d 806) (2010).

The following facts are not disputed. On May 17,2010, the Grand Jury of Peach County returned Indictment No. 10-CR-054 against the Mullinses, alleging one count of theft by taking in that they, “on or about the 19th day of January, 2005 through the 25th day of October, in the year 2006,..., did then and there take a certain check and draft in the amount of $98,480.68, . . . , the property of Gladys Griggs, with the intent to deprive the owner of that property.”

On May 14,2012, Indictment No. 12-CR-418 wasreturnedby the grand jury, alleging three counts each of theft by taking and theft by deception from Griggs against the Mullinses, which were alleged to have occurred on January 18, 2005, January 27, 2005, and June 7, 2005. Two of the counts of this indictment alleged that the victim, Terrell Mullins’s mother, was more than 65 years old. Prior to the return of the 2012 indictment, a nolle prosequi of the 2010 indictment was approved by the trial court.

The Mullinses then filed their plea in bar, contending that the 2012 indictment was barred by the four-year statute of limitation set forth in OCGA § 17-3-1 (c), and that the running of that statute had not been tolled pursuant to OCGA § 17-3-2 or OCGA § 17-3-2.2.

In a thorough and well-reasoned order, the trial court granted the plea in bar, and this appeal ensued.

1. In its first enumeration, the State argues that the trial court erredinconcludingthatOCGA§ 17-3-1 appliedandthatOCGA § 17-3-2.2 was a statute of repose and did not create a 15-year statute of limitation for crimes against victims over the age of 65. We disagree.

OCGA § 17-3-1 (c) provides, in pertinent part: “Except as otherwise provided in Code Section 17-3-2.1 [crimes against victims under the age of 16 years], prosecution for felonies ... shall be commenced within four years after the commission of the crime.”

OCGA § 17-3-2, as relevant here, excludes from computation of statutes of limitation periods when the accused is not a resident of this state or the perpetrator or crime is unknown.

OCGA § 17-3-2.2 states:

In addition to any periods excluded pursuant to Code Section 17-3-2, if the victim is a person who is 65 years of age or older, the applicable period within which a prosecution must be commenced under Code Section 17-3-1 or other applicable statute shall not begin to run until the violation is reported to or discovered by a law enforcement agency, prosecuting attorney, or other governmental agency, whichever occurs earlier. Such law enforcement agency or other governmental agency shall promptly report such allegation to the appropriate prosecuting attorney. Except for prosecutions for crimes for which the law provides a statute of limitations longer than 15 years, prosecution shall not commence more than 15years after the commission of the crime.

Decided April 30, 2013.

Gregory W. Winters, District Attorney, John W. Geiger, Assistant District Attorney, for appellant.

Hogue & Hogue, Franklin J. Hogue, for appellees.

(Emphasis supplied.)

The State’s argument that the statutory history supports its theory that it was meant to be a statute of limitation is belied by the discussion of this history in Harper v. State of Ga., 292 Ga. 557 (738 SE2d 584) (2013). There, charges were brought against three men alleging violations of the Georgia Racketeer Influenced and Corrupt Organizations Act and ten counts of theft from Glock, Inc., Gaston Glock, who was over 65 years old, and other Glock entities. Id. at 557. Regarding the denial of the appellants’ demurrers, pleas in bar, and motions to dismiss, the Supreme Court stated:

Crucial to analyzing the issues in this case is an understanding of the various statutes of limitation in question. Generally, ... prosecution for charges specified in Counts 2 through 11 of the indictment [theft, OCGA §§ 16-8-2; 16-8-3] must be commenced within four years of the commission of those crimes. OCGA § 17-3-1 (c) . . . . [Limitation periods for prosecutions are tolled under OCGA § 17-3-2.2 “if the victim is a person who is 65 years of age or older,... until the violation is reported to or discovered by a law enforcement agency, prosecuting attorney, or other governmental agency . . . .”

(Footnotes omitted; emphasis supplied.) Harper, supra, 292 Ga. at 558-559.

Therefore, the trial court correctly concluded that the four-year statute of limitation contained in OCGA § 17-3-1 (c) was applicable and that the State had failed to plead and prove that the tolling provisions of OCGA § 17-3-2.2 had been triggered. Consequently, the trial court did not err in granting the Mullinses’ plea in bar.

2. Based on our holding in Division 1, we need not further address the State’s second or third enumerations of error.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.


text:
    A13A0303.
    POOLE v. IN HOME HEALTH, LLC.
    (742 SE2d 492)
   Miller, Judge.

After In Home Health, LLC (“IHH”) rescinded its offer of employment to Sharon Poole, Poole filed suit against IHH, alleging fraud and promissory estoppel. IHH filed a motion for judgment on the pleadings, which the trial court granted. Poole appeals that ruling, contending that the trial court erred in granting a judgment on the pleadings without determining the viability of her equitable claim seeking an exception to Georgia’s at-will employment doctrine. Finding no error, we affirm.

On appeal, we review de novo the trial court’s decision on a motion for judgment on the pleadings, and we construe the pleadings in a light most favorable to the appellant, drawing all reasonable inferences in her favor. All well-pleaded material allegations of the opposing party’s pleading are to be taken as true, and all allegations of the moving party which have been denied are taken as false.

(Citations, punctuation and footnotes omitted.) Alexander v. Wachovia Bank, Nat. Assn., 305 Ga. App. 641 (700 SE2d 640) (2010).

So viewed, the pleadings show that IHH operated Athens Heartland Hospice (the “Athens hospice”). In July 2009, IHH represented to Poole that it intended to hire her to fill a vacancy for a full-time case manager at the Athens hospice. Unbeknownst to Poole, IHH had already decided to close the Athens hospice. On July 24, 2009, IHH sent a letter to Poole that confirmed her acceptance of the case manager position and provided that her employment would commence on August 6, 2009. The letter advised Poole that IHH’s commitment to employ her did not “constitute a contract for a specific length of employment.”

On July 24, 2009, Poole provided notice to her employer that she was resigning effective July 31, 2009. At the time, Poole was an employee of Athens Regional Medical Center and had been working there for almost 30 years. On August 5, 2009, IHH requested that Poole postpone her start date at the Athens hospice until August 13, 2009. Before Poole began her employment, however, IHH notified Poole that it planned to close Athens Heartland Hospice and rescinded its promise of employment. Thereafter, Poole filed suit against IHH.

IHH moved for judgment on the pleadings, arguing that the offer for employment was unenforceable because it contained no definite term of employment and therefore was terminable at the will of either party. Following a hearing, the trial court granted IHH’s motion. This appeal ensued.

On appeal, Poole concedes that the trial court correctly determined that the at-will employment doctrine as set forth in OCGA § 34-7-1 precluded her claims for legal relief. Nevertheless, Poole argues that the trial court erred in concluding that her cause of action for fraud must fail without considering whether she had an equitable claim for relief as an exception to the at-will employment doctrine. There is no merit to Poole’s claim.

IHH’s employment offer to Poole did not specify a length of employment. Consequently, the employment contract was terminable at the will of either party. See Wheeling v. Ring Radio Co., 213 Ga. App. 210, 211 (444 SE2d 144) (1994); see also Atlanta Dairies Co-op v. Grindle, 182 Ga. App. 409, 410 (1) (356 SE2d 42) (1987) (contract for indefinite hiring was terminable at-will by either party).

Pursuant to OCGA § 34-7-1, an at-will employee generally may be terminated for any reason, and the employee may not recover from the employer in tort for wrongful discharge. Although there can be public policy exceptions to the doctrine, judicially created exceptions are not favored, and Georgia courts thus generally defer to the legislature to create them.

(Citation omitted.) Reilly v. Alcan Aluminum Corp., 272 Ga. 279, 279-280 (1) (528 SE2d 238) (2000).

Poole relies upon language in the General Assembly’s declaration of public policy in enacting employment security law as evidence that the legislature created an exception to the at-will employment doctrine. See OCGA § 34-8-2. Contrary to Poole’s assertion, however, the General Assembly’s stated purpose in enacting OCGA § 34-8-2 was to provide for the compulsory setting aside of unemployment reserves for the purposes of unemployment compensation. Id. Nothing in that statute shows that the General Assembly created OCGA § 34-8-2 as a specific exception to the at-will employment statute, OCGA § 34-7-1. Moreover, while Poole argues that other jurisdictions have created exceptions to their at-will employment doctrines, this is

Decided April 30, 2013

Shelley W. Cox, for appellant.

Littler & Mendelson, Richard C. McWilliams, Jr., for appellee.

of no consequence because in Georgia this rule is statutory. Georgia courts have refused to acknowledge any exceptions not encompassed by OCGA § 34-7-1, and in the absence of any express statutory provision for such a civil remedy, we decline to create judicially such a remedy. Courts may interpret laws, but may not change them. These inadequacies in our existing law, however, if they be such, cannot be supplied by the courts, and may only be corrected by the General Assembly.

(Citations and punctuation omitted.) Balmer v. Elan Corp., 278 Ga. 227, 230 (2) (599 SE2d 158) (2004). Since the General Assembly has not enacted an exception under OCGA § 34-7-1, Poole has no claim for equitable relief, and the trial court did not err in granting a judgment on the pleadings to IHH.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

       On a motion for judgment on the pleadings, a trial court may consider exhibits attached to and incorporated into the pleadings. See Lewis v. Turner Broadcasting System, 232 Ga. App. 831, 832 (2) (503 SE2d 81) (1998).

       Poole does not challenge on appeal the trial court’s ruling on her promissory estoppel claim. Therefore, any allegation of error with respect to that claim has been abandoned. See Court of Appeals Rule 25 (a) (3) and (c) (2); Steed v. Fed. Nat. Mtg. Corp., 301 Ga. App. 801, 804, n. 2 (689 SE2d 843) (2009).


text:
    A13A0544.
    MYERS v. THE STATE.
    (742 SE2d 494)
   Ray, Judge.

Following a jury trial, Milton Myers was found guilty beyond a reasonable doubt of burglary. OCGA § 16-7-1. He appeals from his conviction and the denial of his motion for new trial, contending that the trial court erred in denying his motion to suppress evidence. For the following reasons, we affirm.

In reviewing the grant or denial of a motion to suppress, we construe the evidence in a light most favorable to upholding the trial court’s findings and judgment. When the trial court’s findings are based upon conflicting evidence, we will not disturb the lower court’s ruling if there is any evidence to support its findings, and we accept the court’s credibility assessments unless clearly erroneous. The trial court’s application of law to undisputed facts, however, is subject to de novo review.

(Citation omitted.) Horne v. State, 318 Ga. App. 484, 488 (3) (733 SE2d 487) (2012). “Further, in reviewing the denial of a motion to suppress, we consider all the evidence of record, including evidence introduced at trial.” (Citation and punctuation omitted.) Souder v. State, 301 Ga. App. 348, 349 (1) (687 SE2d 594) (2009).

So viewed, the evidence shows that, on March 3, 2010, Sergeant Kenneth Carson of the Calhoun Police Department was on patrol in the area of Highway 53 and Outlet Center Drive when he observed a gold vehicle with tinted windows exiting the rear parking area of the Days Inn motel. As Carson was passing by in his patrol car, the gold vehicle came halfway out of the motel exit and stopped in the middle of the roadway. Carson thought that the vehicle’s actions were strange and suspicious, as if the driver was reacting to the sight of his patrol car. As Carson was on his way to assist another officer at the time, he could not stop and investigate.

Approximately six hours after his encounter with the suspicious vehicle, Carson received a dispatch to respond to a burglar alarm at the Coach store at the outlet center, which was in close proximity to the Days Inn motel. While en route, Carson used his radio to advise other officers to be on the lookout for the gold vehicle that he had observed earlier. Upon his arrival at the Coach store, Carson noticed that the glass on the front door of the store had been shattered and broken out, and that many Coach purses had been taken from the shelves inside the store.

In response to Carson’s radio advisement, Officers Carrie Smith and Josh Justice located a vehicle in the Days Inn parking lot matching the description given by Carson. The officers’ suspicions were further aroused by the fact that the vehicle was parked crooked in a parking space and backed in against an embankment. The officers also noticed that the vehicle’s interior dome light was on and that the door was slightly ajar. Upon approaching the vehicle, the officers were able to look through the windows into the illuminated interior, where they observed several Coach purses in plain view sticking out from underneath a blanket in the back seat. After running the vehicle’s tag number and checking with the motel clerk, the officers were able to determine that the address on the vehicle’s registration matched the address furnished by Myers when he registered as a guest at the Days Inn motel. After confirming that the purses in the vehicle matched the description of the purses stolen from the Coach store, the officers obtained a search warrant for the vehicle and Myers’ motel room. Upon executing the search warrant, the officers found Myers and another individual inside the motel room, along with the key to the vehicle and pieces of broken glass. Using the key obtained from Myers, the officers searched the vehicle and recovered the stolen Coach purses.

In his sole enumeration of error, Myers contends that the trial court erred in denying his motion to suppress, arguing that the “plain view” doctrine cannot be used to support the subsequent search warrant in this case because the officers were not lawfully in the Days Inn parking lot at the time they observed the purses inside the vehicle. We disagree.

Under the “plain view” doctrine, a law enforcement officer has a right to visually search the entirety of a car from his vantage point on a street or roadside. The viewing need not be motivated by any articulable suspicion. On the contrary, law enforcement officers simply have the right to look into automobiles, so long as they have a legitimate reason and are looking from a place in which they have a right to be (e.g., a street or roadside).

(Citations and punctuation omitted.) Galloway v. State, 178 Ga. App. 31, 34 (342 SE2d 473) (1986).

Here, when the officers looked into the vehicle, they were not on a street or a roadway. However, the officers were in the Days Inn parking lot, which was readily accessible and openly used by the public. Furthermore, the evidence shows that the parking lot had multiple entrances and exits, and that motorists frequently used the parking lot as a “cut-through” when driving toward the outlet mall where the Coach store is located. Based on these facts, it is clear that the officers were not required to obtain a search warrant or permission before entering the Days Inn parking lot to look for the vehicle. See, e.g., Harding v. State, 283 Ga. App. 287, 288 (641 SE2d 285) (2007); State v. Echols, 204 Ga. App. 630, 630-631 (420 SE2d 64) (1992).

Myers’ reliance on State v. O’Bryant, 219 Ga. App. 862 (467 SE2d 342) (1996), is misplaced. In O’Bryant, the police went to a private residence without a warrant to investigate possible drug activity. After the police knocked on the doors of the residence without any response, one of the police officers went around the side of the house, in an area not commonly traversed by visitors, and looked into the defendant’s truck without any legitimate reason for doing so. Although the officer observed marijuana inside the truck, it would not have been plainly visible to others because of the vehicle’s location and the fact that the officer had to peer through tinted windows in order to see the marijuana. The officers then left the residence to obtain a search warrant before seizing the marijuana. Under those circumstances, we held that the suppression of the incriminating evidence was proper because the officer’s actions constituted an impermissible search that did not fall within the scope of the “plain view” exception and that the subsequent warrant based on information obtained from the impermissible search was, therefore, defective. Id. at 863-864.

Decided April 30, 2013.

David L. Lumpkin, for appellant.

T. Joseph Campbell, District Attorney, Jana W. Allen, Rosemary M. Greene, Assistant District Attorneys, for appellee.

In the instant case, the officers were in a parking lot used by the public when they observed the vehicle. Furthermore, the officers had a legitimate reason for approaching the vehicle because it matched the description given by Carson, and the vehicle was parked in a suspicious manner with its interior dome light on. See Harding, supra at 288. Although the vehicle had tinted windows, the interior of the vehicle was illuminated, making the incriminating evidence in the vehicle plainly visible to anyone walking by in the parking lot. As the officers were in a place they were lawfully entitled to be when they observed the stolen purses in plain view inside Myers’ vehicle, their observations could be used as a basis for the search warrant in this case. See Benton v. State, 240 Ga. App. 243, 244 (1) (522 SE2d 726) (1999).

For the above reasons, the trial court did not err in denying the motion to suppress.

Judgment affirmed.

Barnes, P. J., and Miller, J., concur.


text:
    A13A0610.
    THE STATE v. HILL.
    (742 SE2d 497)
   Ray, Judge.

The State of Georgia appeals from a trial court order granting Victor Keith Hill’s general demurrer and dismissing five counts of a 37-count indictment against him. The State asserts two enumerations of error: (1) that the trial court erred in finding that because Hill, the sheriff of Clayton County, had a superior ownership interest in his campaign re-election account, he could not be charged with theft by taking as to his own property; and (2) that the trial court erred in finding that the State was pre-empted from prosecuting Hill for violations of the Racketeer Influenced and Corrupt Organizations Act because the indictment failed to charge the proper predicate offenses pursuant to OCGA § 16-14-3 (9) (A) and (B). Because we lack jurisdiction, we are unable to reach the merits of this case.

Well-settled law dictates that “[i]t is incumbent upon this Court to inquire into its own jurisdiction.” (Citation and punctuation omitted.) Mays v. Rancine-Kinchen, 291 Ga. 283, 283 (729 SE2d 321) (2012).

Here, the State filed a notice of direct appeal from the trial court’s order. Hill argues that the trial court should have dismissed the State’s notice of appeal because the dismissal of only a portion of an indictment is an interlocutory order from which no direct appeal lies. In support of his argument, Hill cites State v. Outen, 289 Ga. 579 (714 SE2d 581) (2011), which provides that a trial court’s order dismissing fewer than all counts of an indictment is not a final order; thus, a certificate of immediate review was required for an appeal pursuant to the version of OCGA § 5-7-2 (a) then in effect. Id. at 581. The State counters that Outen effectively has been overruled by a 2012 amendment to OCGA § 5-7-2 (b) (2). That amendment provides that the State need not obtain a certificate of immediate review to appeal an order described in OCGA § 5-7-1 (a) (1), which includes orders “setting aside or dismissing any indictment ... or any count thereof.” (Emphasis supplied.) The trial court agreed with the State and refused to dismiss the State’s notice of appeal.

Hill allegedly committed the crimes at issue between January 1, 2007, and June 30, 2011; he was indicted on January 18, 2012. The amendment to OCGA § 5-7-2 became effective July 1, 2012. Therefore, the determinative jurisdictional question is whether the amendment applies retroactively.

It is well settled that (Punctuation and footnotes omitted.) Williams v. State, 297 Ga. App. 626, 627 (677 SE2d 773) (2009).

[a] statutory amendment may be applied retroactively if the changes do not affect constitutional or substantive rights and if the legislature did not express a contrary intention. Substantive law is that law which creates rights, duties, and obligations.... Procedural law is that law which prescribes the methods of enforcement of rights, duties, and obligations.

Decided April 30, 2013.

Layla H. Zon, for appellant.

Ghanayem & Rayasam, Musa M. Ghanayem, Steven M. Frey, Drew Findling, Marissa Goldberg, for appellee.

Here, the amended OCGA § 5-7-2 does not, on its face, address whether its procedural aspects are to apply retroactively. “[I]nattempting to ascertain legislative intent of a doubtful statute, a court may look to the caption of the act and its legislative history.” (Citation omitted.) Fulton County v. Colon, 316 Ga. App. 883, 887 (2) (730 SE2d 599) (2012). Further, it is well settled that the cardinal rule of statutory construction is to discern the intent of the legislature, and if the legislative intent is clear and expressed unambiguously, no interpretation is needed prior to a court executing its duty to enforce the statute. Daugherty v. Norville Indus., Inc., 174 Ga. App. 89, 90 (329 SE2d 202) (1985).

Here, the legislature plainly and unambiguously expressed its intent in the relevant legislative history, which provides in pertinent part, “this Act shall become effective on July 1, 2012, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2012, shall be governed by the statute in effect at the time of such offense.” (Emphasis supplied.) Ga. L. 2012, p. 899, § 9-1 (a). See also id. at §§ 1-1, 1-2.

“Where a statute governs only court procedure... it is to be given retroactive effect absent an expressed contrary intention.” (Footnote omitted; emphasis supplied.) Williams, supra. Here, the legislature expressed such a contrary intention as to the effective date of the statute as a whole. Thus, the version of OCGA § 5-7-2 in effect at the time the offenses were committed applies. “The State having failed to obtain a certificate of immediate review pursuant to OCGA § 5-7-2, the attempted appeal is nugatory and does not activate the appellate jurisdiction of this Court.” (Citation and punctuation omitted.) State v. Ware, 282 Ga. 676, 678 (653 SE2d 21) (2007).

Appeal dismissed.

Barnes, P. J., and Miller, J., concur.

       Hill filed an application for interlocutory appeal from the denial of his motion to dismiss the State’s notice of appeal in the trial court. We denied that application.


text:
    A13A0673.
    VEGA v. THE STATE.
    (742 SE2d 499)
   Ray, Judge.

A jury convicted Jose Vega of trafficking in cocaine in violation of OCGA § 16-13-31 (a) (l). Vega appeals the denial of his amended motion for new trial, contending that the evidence was insufficient to support his conviction. For the reasons that follow, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant is no longer entitled to a presumption of innocence. We neither weigh the evidence nor judge the credibility of the witnesses, but determine only the sufficiency of the evidence in accordance with the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(Citation omitted.) Clark v. State, 319 Ga. App. 880 (738 SE2d 704) (2013).

Viewed in the light most favorable to the verdict, the evidence shows that on November 9, 2009, a Georgia State Patrol officer working with a federal program called High Intensity Drug Trafficking Area was patrolling Interstate 20 when he received a Be On the Lookout (“BOLO”) for a gray Volkswagen Passat station wagon traveling eastbound toward Atlanta. After spotting the vehicle, independent of what he had learned from the BOLO, he saw that the vehicle appeared to have a window tint violation. He stopped the vehicle and told Vega, the driver and sole occupant, that he had stopped him for a window tint violation. Vega indicated that he understood, but the officer testified that Vega “was nervous. You could see the artery in his neck pulsing, carotid artery, which is a sign of intense nervousness.” The officer asked Vega to step out of his car so they could talk. The officer told Vega he was just going to issue a warning, but Vega’s nervousness did not subside. Vega, who had a Texas driver’s license, told the officer he was coming to visit his girlfriend in Atlanta for the first time, that he was spending a week there, and that he was driving her car. The officer noticed that the vehicle contained at least four air fresheners; that despite Vega’s statement that he was on a week-long visit, he had no luggage; and that there was only a single key in the ignition, rather than a key ring also holding house or apartment keys. When asked about how he got his girlfriend’s car and about his lack of luggage, Vega then changed his story and told the officer he already had been at his girlfriend’s house for a week, had left his luggage there, and was returning from a trip to Alabama to visit a friend. The officer testified that based on his interdiction training, these factors could be indicators of drug activity. The officer then asked to search Vega’s car, and Vega gave his consent orally and also signed a consent to search form. The officer saw that the covers to the seat brackets were scratched and broken, and that the screws fastening the seats to the vehicle frame had abnormal wear, indicating that the seats had been removed multiple times. He also noted that the carpet had been glued to the floorboards in a manner not followed by automobile manufacturers. The search revealed a hidden panel underneath the carpet where the officer found duct-taped packages containing a white powdery substance. After testing, the substance was determined to be 975.76 grams of cocaine with a purity greater than 10 percent.

Vega argues that the evidence was insufficient to sustain his conviction because there was no direct evidence showing he knew that the cocaine was secreted in the hidden compartment. He contends that a finding of constructive possession may not rest only upon a defendant’s spatial proximity to contraband, but that there must be some slight evidence of access, power, and intention to exercise control or dominion over the contraband. See Feliciano v. State, 302 Ga. App. 328, 330-331 (690 SE2d 680) (2010). This slight evidence, he argues, was lacking in the instant case. We disagree.

The evidence that Vega was the driver of the car gave rise to a rebuttable presumption that he had possession and control of the cocaine found in the car. Sabb v. State, 317 Ga. App. 537, 539 (731 SE2d 399) (2012). In order to rebut this presumption, Vega needed to present evidence that other people had equal access to the vehicle and the contraband. Id.

[I]f the only evidence of possession of contraband found in an automobile is that the defendant is the driver of the vehicle, and there is evidence of prior use of the vehicle by other parties in the recent past, or equal access to the accessible portions of the vehicle by other parties, then the prior possession or equal access rule would demand an acquittal. However, if there is additional evidence of possession of contraband by the accused — either circumstantial or direct, other than mere use of the vehicle, then an issue is made for the jury.

(Citation, punctuation and footnote omitted.) Pincherli v. State, 295 Ga. App. 408, 410 (1) (671 SE2d 891) (2008).

Vega presented no evidence at trial. Also, there was additional evidence of Vega’s guilt. “A defendant’s power to exercise control over the drugs may be inferred from access to the drugs, while the matter of intent may be derived from the surrounding circumstances.” (Citation omitted.) Sabb, supra at 540. Here, the evidence showed that Vega was the driver of the vehicle. No evidence of recent access by any other person was presented. Further, Vega’s demeanor in showing extreme nervousness, “along with [his] inconsistent responses to the officer’s inquiries concerning [his] destination . . . reflected [Vega’s] consciousness of guilt.” (Citation and footnote omitted.) Id. See also Delavega v. State, 312 Ga. App. 79, 80 (717 SE2d 681) (2011) (conflicting stories about travel plans, when combined with other evidence, sufficient to create jury issue); Pincherli, supra at 411 (1) (evidence of extreme nervousness after being informed of the routine purpose of a traffic stop was a factor sufficient to create a jury issue as to defendant’s knowing possession of cocaine); Allen v. State, 191 Ga. App. 623, 625 (2) (382 SE2d 690) (1989) (a “[defendant's intent to exercise control over the contraband can be inferred by the suspicious and inconsistent explanations defendant gave to the trooper before he conducted the search”). Also, this Court has considered the fact that a car reeked of air fresheners as evidence sufficient for a jury to infer that such strong odors were intended to hide the smell of cocaine or confuse a drug dog. Fernandez v. State, 275 Ga. App. 151, 155 (2) (619 SE2d 821) (2005). Finally, this Court has considered a lack of luggage as a factor in determining whether the evidence was sufficient to support a jury’s verdict in a similar case. See Delavega, supra at 80.

Based on the presumption that the driver of a vehicle is in constructive possession of the vehicle, the conflicting stories Vega provided about his travel plans, his lack of luggage for a long trip, the presence of multiple air fresheners, and his extreme nervousness, we find sufficient circumstantial evidence to support the jury’s verdict beyond a reasonable doubt. Delavega, supra at 80. A jury could infer that Vega was lying and that his lies evidenced guilty knowledge. Id. While the evidence here is circumstantial, it need not exclude every conceivable inference or hypothesis, but merely those that are reasonable. Blevins v. State, 291 Ga. 814, 816 (733 SE2d 744) (2012).

A reasonable hypothesis is one raised by the evidence. Whether an alternative hypothesis is reasonable is a question committed principally to the jury that heard the evidence, and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb that finding, unless the verdict of guilty is unsupportable as a matter of law.

Decided April 30, 2013.

Lawrence W. Daniel, for appellant.

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

(Citation and punctuation omitted.) Id. Accordingly, we conclude that the evidence was sufficient to exclude every reasonable hypothesis other than Vega’s guilt and to authorize a rational trier of fact to find him guilty beyond a reasonable doubt.

Judgment affirmed.

Barnes, P. J., and Miller, J., concur.

       Vega was convicted under a prior version of the statute, which was amended at Ga. L. 2012, p. 899, § 3-8, effective July 1,2012. However, the pertinent language of the version under which he was convicted is identical to that in the amended statute.


author: RAY, Judge.

text:
    A13A0705.
    TEHRANI v. THE STATE.
    (742 SE2d 502)
   RAY, Judge.

Following a jury trial, Hamid Nikomid Tehrani was found guilty beyond a reasonable doubt of criminal attempt to commit trafficking in cocaine. OCGA §§ 16-4-1; 16-13-31 (a) (1). He appeals from his conviction and the denial of his motion for new trial, contending that the evidence was insufficient to support the verdict. For the following reasons, we affirm.

“On appeal from a criminal conviction, we no longer presume the defendant is innocent, and we view the evidence in the light most favorable to the jury’s verdict.” (Citation omitted.) Green v. State, 298 Ga. App. 17, 18 (679 SE2d 348) (2009).

Viewed in this manner, the trial evidence shows that in May 2009, an investigator assigned to the narcotics unit of the Gwinnett County Police Department received information from an informant about an individual who was interested in purchasing cocaine. Using the information supplied by the informant, another investigator, posing as a drug dealer, contacted Tehrani and made arrangements to meet with him at the Gwinnett Place Mall to discuss the details for a possible drug transaction.

After arriving at the designated location, Tehrani negotiated to purchase one kilogram of cocaine from the undercover investigator. Tehrani told the undercover investigator that he did not have any cash, but that he owned a car dealership and would sign over a car to him in exchange for the cocaine. Tehrani and the undercover investigator eventually agreed to meet at the car dealership on May 14, 2009, to complete the drug transaction.

On May 14, 2009, the undercover investigator, with the assistance of other officers from the Gwinnett Police narcotics unit, executed a reverse sting operation at the car dealership. Another officer drove the undercover investigator to the car dealership and dropped him off to meet with Tehrani. The gate to the dealership was locked at the time. Tehrani arrived approximately ten minutes later driving a Mercedes ML500, the car that he intended to trade for the kilogram of cocaine. The undercover investigator accompanied Tehrani into the dealership office, and the two men completed a bill of sale for the Mercedes. Once the bill of sale was executed, the other officer returned in his vehicle with the kilogram of cocaine. Tehrani got in the front passenger seat, the undercover investigator got in the back seat, and the undercover investigator reached into a book bag and retrieved a tightly wrapped package containing the kilogram of cocaine, showing it to Tehrani. Tehrani grabbed the package, placed it in his lap, and asked for a knife to cut open the package. When Tehrani cut into the package to examine the cocaine, the undercover investigator gave the “take-down” signal to the surveillance team, who then surrounded the vehicle. Tehrani was taken into custody.

After Tehrani was advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966), he agreed to speak with an investigator about the incident without counsel. Tehrani stated that he went to the dealership to purchase a kilogram of cocaine and that he intended to trade a car from his dealership in exchange for the cocaine. At trial, Tehrani testified in his own defense, admitting to his participation in the drug transaction, but denying that he ever took possession of the package containing the cocaine.

In his sole enumeration of error, Tehrani contends that the evidence was insufficient to convict him. We disagree.

When a criminal defendant challenges the sufficiency of the evidence supporting his or her 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. The jury, not this Court, resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from basic facts to ultimate facts. 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.

Decided April 30, 2013.

Sharon L. Hopkins, for appellant.

(Citations and punctuation omitted; emphasis in original.) Nangreave v. State, 318 Ga. App. 437, 438 (1) (734 SE2d 203) (2012).

“A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” OCGA § 16-4-1. Here, Tehrani was convicted of criminal attempt to commit trafficking in cocaine, which required proof that he attempted to knowingly possess 28 grams or more of cocaine or any mixture with a purity of 10 percent or more of cocaine. See OCGA § 16-13-31 (a) (1) (defining trafficking in cocaine).

The trial evidence established that Tehrani negotiated for and attempted to purchase one kilogram of cocaine from the undercover investigator. The trial evidence further showed that Tehrani took substantial steps and actively participated in the attempted drug offense by meeting with the undercover investigator at the designated location and at the arranged time for the purpose of conducting the transaction, and by executing the bill of sale for the Mercedes in exchange for the drug purchase. During the attempted drug transaction, Tehrani took possession of the package of cocaine and cut it open to examine its contents. Subsequent testing confirmed that the drug substance in the package was cocaine with a purity of 72.4 percent weighing approximately 0.975 kilograms, which exceeds 28 grams.

Based upon the combined evidence, the jury was authorized to find Tehrani guilty beyond a reasonable doubt of criminal attempt to commit trafficking in cocaine. See Rainey v. State, 319 Ga. App. 858, 859 (1) (a) (738 SE2d 685) (2013); Toney v. State, 304 Ga. App. 25, 29 (3) (695 SE2d 355) (2010).

Judgment affirmed.

Barnes, R J., and Miller, J., concur.

Daniel J. Porter, District Attorney, Ayanna K. Sterling-Jones, Assistant District Attorney, for appellee.

       OCGA § 16-13-31 has been amended, effective July 1, 2012. However, subsection (a) (1) of the statute was not changed.


text:
    A11A1021.
    McRAE v. ARBY’S RESTAURANT GROUP, INC. et al.
    (742 SE2d 510)
    Decided May 1, 2013.

      Clements & Sweet, Lawrence T. Clements, Bruce P. Johnson, for appellant.

      Hamilton, Westby, Antonowich & Anderson, Andrew J. Hamilton, James H. Chandler, for appellee.

      Thomas A. Eaton, Todd K. Maziar, Robert D. Ingram, Ryan G. Prescott, amici curiae.
   BARNES, Presiding Judge.

In Arby’s Restaurant Group v. McRae, 292 Ga. 243 (734 SE2d 55) (2012), the Supreme Court of Georgia reversed the judgment of this court in McRae v. Arby’s Restaurant Group, 313 Ga. App. 313 (721 SE2d 602) (2011). Therefore, we vacate our earlier opinion and adopt the opinion of the Supreme Court as our own.

Judgment affirmed.

Ellington, C. J., Phipps, P. J., Doyle, P. J., Miller, Ray, and McMillian, JJ., concur.


author: Dillard, Judge.

text:
    A13A0193.
    THE STATE v. SIMMONS et al.
    (742 SE2d 505)
   Dillard, Judge.

Following a jury trial, Corey Simmons and Samuel Johnson (collectively “defendants”) were convicted on two counts of armed robbery. Shortly thereafter, both filed motions for new trial based on newly discovered evidence, which the trial court granted. The State now appeals, arguing that the trial court erred in granting defendants a new trial because the newly discovered evidence was not material and was cumulative of other evidence. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that some time between 12:00 a.m. and 1:00 a.m. on September 27, 2009, Derrick Arnold and Jason Barnes set out to meet some friends at a nightclub in the Midtown area of Atlanta. After parking their car near the intersection of Juniper Street and 7th Street, Arnold and Barnes began walking up 7th Street toward Peachtree Street (where the nightclub was located), when they were approached by three young men, who asked them about nightclubs in the area. Barnes answered their question while he and Arnold continued walking toward the club, and the three men continued walking in the opposite direction. However, a moment later, the three men came up behind Barnes, and one pushed him to the ground while another pulled out a handgun. The gunman then struck Barnes in the head with his gun and demanded that Arnold and Barnes give up any valuables. Arnold and Barnes complied, giving the perpetrators their wallets, watches, mobile phones, some jewelry, and Barnes’s Nike Air Jordan sneakers. At that point, the three perpetrators fled, and Arnold and Barnes rushed toward the nightclub to seek assistance.

Upon reaching the nightclub, Arnold and Barnes informed their friends about the robbery and used one friend’s mobile phone to call the police. The police arrived within five or ten minutes, and Arnold and Barnes provided information about the robbery, including a description of the three perpetrators. Specifically, they stated that the gunman was approximately six feet tall, 200 pounds, and dark-skinned; the man that pushed Barnes down was slightly taller, slimmer, brown-skinned, and wore his hair in either dreadlocks or braids but was also wearing a baseball cap; and the third man was shorter than the other two men and appeared significantly younger.

After the police concluded taking Arnold and Barnes’s statements and left the nightclub, Barnes recalled that his stolen mobile phone contained an application that allowed the owner to log on to the mobile-phone company’s website and track the phone via its global-positioning system. Consequently, Barnes and his friends contacted another friend, who was at home, and asked him to go online and attempt to track Barnes’s phone. Within a few minutes that friend successfully located Barnes’s phone and determined that the perpetrators had recently been to a gas station just a few blocks away from the Midtown nightclub but were now headed southbound on Interstate 85.

At that point, two of Arnold and Barnes’s friends, who were with them at the nightclub, got in their car and began an attempt to follow the perpetrators based on directions provided by the third friend who continued to track the phone online. Eventually, they tracked the phone to a gas station in Riverdale, where they observed two men matching the perpetrators’ description enter a gold Toyota Corolla with a Florida license plate. When the Corolla left the gas station, Arnold and Barnes’s friends continued their pursuit but lost sight of the vehicle after getting caught at a red light. However, their friend tracking the phone by computer determined that the perpetrators’ vehicle, after briefly heading west on Interstate 285, stopped again at a motel on Old National Highway in College Park. The pursuing friends arrived at the motel not long thereafter, saw the Corolla parked in the lot, but did not observe anyone in the vehicle at that time. A few minutes later, which by now was some time after 3:00 a.m., they found a College Park police officer and informed him of the robbery and their tracking of the perpetrators’ vehicle.

The College Park police officer called for backup, and after the other officers arrived, they arrested William Phillips, who by that time was sitting in the Corolla, and Samuel Johnson, who was standing near the vehicle while talking on a mobile phone. Following these arrests, the police determined that both Phillips and Johnson had Florida driver’s licenses, and in searching the Corolla, the police found Barnes’s debit card, a mobile phone, and a pair of Nike Air Jordan sneakers. The police then directed one of the pursuing friends to call Arnold and Barnes’s stolen mobile phones. And upon calling those respective numbers, a mobile phone found in the Corolla and another phone that was in Johnson’s possession rang.

Not long after the arrests, Arnold and Barnes arrived on the scene and identified Phillips as the younger perpetrator and Johnson as the perpetrator with dreadlocks or braids, despite the fact that Johnson did not wear his hair in either dreadlocks or braids. And a few minutes later, as the police officers continued their investigation of the suspects and their vehicle, Arnold and Barnes observed another man casually approaching the police cars and recognized him as the dark-skinned man who brandished the handgun during the robbery. Consequently, officers arrested this third man, who was identified by his Florida driver’s license as Corey Simmons, despite Simmons’s protests that he had only come to the motel to retrieve a friend’s car.

Simmons, Johnson, and Phillips were each charged, via the same indictment, with two counts of armed robbery. Thereafter, Simmons and Johnson were jointly tried, during which Arnold, Barnes, and their friends testified regarding the robbery and subsequent pursuit of the perpetrators by tracking Barnes’s mobile phone. And although the Atlanta police officers involved in the investigation testified, none of the College Park officers involved in the arrests of Simmons and Johnson were called as witnesses.

As for the defense, Johnson called no witnesses on his behalf, but one of Simmons’s friends testified that she, her brother, and Simmons went to a nightclub in East Point at approximately 11:30 on the night of the robbery in Midtown and that they stayed there until shortly before the club closed at 3:00 a.m. In addition, one of the East Point nightclub’s security guards recalled Simmons arriving some time between 11:30 p.m. and 12:00 a.m. but conceded that he did not know what time Simmons left.

After the evidence was closed, the trial court charged the jury and directed the jury members to begin their deliberations. However, less than two hours later, at around 5:00 p.m., the trial court adjourned for the day and instructed the jury that it could continue deliberations the next morning. That morning, after the jury reconvened for its deliberations, Simmons’s counsel informed the court that Simmons’s mobile-phone company contacted his office late the previous day to inform him that records for Simmons’s phone reflecting its usage on the night of the robbery — which the company previously claimed did not exist-— had in fact been located. Simmons’s counsel further explained that these records further corroborated Simmons’s alibi that he was at the nightclub in East Point at the time the robbery occurred in Midtown. Accordingly, counsel requested a mistrial so that the newly discovered evidence could be introduced at retrial. However, the trial court was unwilling to halt the jury’s deliberations and denied Simmons’s request. And shortly thereafter, the jury found Simmons and Johnson guilty on both counts of armed robbery.

One month later, Simmons and Johnson filed separate motions for new trial, in which they both argued that the newly discovered mobile-phone records warranted a new trial. And during the ensuing hearing, Simmons’s primary witness was a representative of his mobile-phone company. The representative first explained how the company’s cell towers can determine the location from which a phone on the company’s network is used and that this information, as well as the number called and time of the call, was retained by the company and kept in its records. The representative then provided detailed testimony about the records for Simmons’s mobile phone on the night of the robbery, stating that at 6:33 p.m., the phone was used from a location in Douglasville, and at 9:09 p.m., it was used from a location in Riverdale. The representative further testified that at 12:09 a.m., 12:40 a.m., 12:58 a.m., 1:00 a.m., 1:59 a.m., and 2:52 a.m. Simmons’s phone was used from a location in East Point. And at 3:06 a.m. and 3:10 a.m., it was used from a location in College Park off of Old National Highway. The representative also confirmed that his company initially erred when it informed Simmons’s counsel that it did not keep records for the type of pre-paid mobile phone that Simmons owned.

In addition to the mobile-phone-company representative, Simmons’s sister and his girlfriend testified that the mobile phone number in the admitted phone records was in fact what they knew to be Simmons’s number and that on the night of the robbery, Simmons had been at their respective homes in Douglasville and Riverdale, as the records indicated. Simmons’s sister also testified that Simmons called her after his arrest and asked her to retrieve his mobile phone from the College Park jail. Finally, Simmons introduced evidence indicating that the location of the nightclub that he claimed to have patronized around the time of the robbery corresponded to the East Point location from which his mobile phone was used between 12:09 a.m. and 1:00 a.m. and again at 1:59 a.m. And based on this newly discovered evidence, the trial court granted both Simmons and Johnson’s motions for new trial. This appeal from the State follows.

At the outset, we note that “[t]he grant or denial of a motion for new trial based on newly discovered evidence is largely discretionary with the trial judge.” And the discretion exercised “will not be disturbed in absence of abuse.” Furthermore, a trial court’s exercise of such discretion is “entitled to great consideration.” With these guiding principles in mind, we turn now to the State’s claim of error.

On appeal, the State contends that the trial court abused its discretion in granting Simmons and Johnson’s motions for new trial based on newly discovered evidence, arguing that the newly discovered mobile-phone records were not so material that they would probably produce a different verdict and that they were cumulative. We disagree.

In Timberlake v. State, the Supreme Court of Georgia held that a defendant seeking a new trial based on newly discovered evidence must satisfy the court

(1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.

Furthermore, “[a]ll six requirements must be complied with to secure a new trial.”

The State first argues that the newly discovered mobile-phone records, which indicate that Simmons’s mobile phone was used at the East Point nightclub between 12:09 a.m. and 1:00 a.m., and then again at 1:59 a.m., were not so material that they would probably produce a different verdict. Specifically, the State argues that the records do not prove that it was actually Simmons who used the phone at those times and that even if he did have possession of his phone the entire night, the records do not negate the possibility that he left the nightclub after the 1:00 a.m. call, drove to Midtown, committed the robbery, and then returned to the club by 1:59 a.m. However, while the State is correct that the mobile-phone records do not render Simmons’s participation in the Midtown robbery impossible, we disagree with the State’s contention that the records were not material. Indeed, whether evidence meets the materiality requirement cannot be reduced to a mathematical probability because jurors are the ultimate judges of the import of evidence admitted during trial, and it is difficult to accurately predict their reaction to such evidence.

And here, the mobile-phone records corroborated the testimony of Simmons’s witness, who claimed that Simmons was at the East Point nightclub with her and her brother during the time the robbery occurred. Additionally, even setting aside that witness’s testimony, the records on their own cast doubt on Simmons’s participation in the robbery. Indeed, if the crime occurred some time after 1:00 a.m., as the State asserts, finding Simmons guilty would necessarily require concluding that Simmons either left his mobile phone with someone else at the nightclub, or that he committed the crime within a very compressed time frame that entailed leaving East Point after 1:00 a.m., driving the approximately 15 or 20 minutes the State concedes it would take to travel to Midtown, finding parking nearby, approaching the victims on foot before robbing them, and then driving back to East Point before 1:59 a.m. Given these circumstances, we simply cannot say that the trial court abused its discretion in finding that Simmons’s newly discovered mobile-phone records were so material that they would probably produce a different verdict.

The State also contends that the newly discovered mobile-phone records did not warrant the grant of a new trial because such evidence was merely cumulative of the testimony of those witnesses who stated that Simmons was at the East Point nightclub on the night of the robbery. Again, we disagree.

As our Supreme Court has explained, “[t]he true test as to whether evidence is cumulative depends not only on whether it tends to establish the .same fact, but it may depend on whether the new evidence is of the same or different grade.” And it is only when newly discovered evidence “either relates to a particular material issue concerning which no witness has previously testified, or is of a higher and different grade from that previously had on the same material point, that it will ordinarily be taken outside the definition of cumulative evidence.”

Decided May 1, 2013.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellant.

Kenneth W. Muhammad, Kenneth D. Kondritzer, for appellees.

And here, Simmons’s mobile-phone records are not merely cumulative of the testimony provided by the witnesses who stated that he was at the nightclub in East Point on the night that Arnold and Barnes were robbed in Midtown. Indeed, the records constitute a higher grade of evidence that corroborates that testimony and provides independent and objective support for Simmons’s claim that he was at the nightclub in East Point at the time the robbery was committed in another part of town. Accordingly, the trial court did not abuse its discretion in finding that Simmons’s mobile-phone records were not cumulative of other evidence.

For all of the foregoing reasons, we affirm the trial court’s grant of Simmons and Johnson’s motions for new trial.

Judgment affirmed.

Andrews, P. J., and McMillian, J., concur.

        See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).

         See OCGA § 16-8-41 (a).

       For reasons not entirely clear from the record, Phillips was apparently in custody in the State of Florida at the time of the trial and, thus, was not tried with Simmons and Johnson.

        See OCGA §§ 5-7-1 (a) (7); 5-7-2 (b) (2). Although the mobile-phone records pertained more directly to Simmons’s defense, given that the State’s theory of the case inextricably linked Simmons and Johnson as committing the armed robbery together, the trial court found that the newly discovered records possibly cast doubt on the victims’ identification of all the perpetrators and thus warranted a new trial for Johnson as well. On appeal, the State does not take issue with this aspect of the trial court’s ruling and only contends that the newly discovered evidence does not require a new trial for either defendant. Accordingly, that is the only issue we now address.

        James v. State, 115 Ga. App. 822, 824 (156 SE2d 183) (1967).

        Id.

         Taylor v. State, 307 Ga. App. 487, 487 (705 SE2d 295) (2010) (punctuation omitted).

       246 Ga. 488 (271 SE2d 792) (1980).

        Id. at 491 (1) (punctuation omitted).

        Id.; see Taylor, 307 Ga. App. at 488 (2) (“Failure to show one requirement is sufficient to deny a motion for a new trial.” (punctuation omitted)).

        See Bell v. State, 227 Ga. 800, 807 (3) (183 SE2d 357) (1971) (noting that the materiality of the evidence “cannot be reduced to a mathematical probability, since jurors are the ultimate judges of the credibility of witnesses and no prognostication of their reaction to such evidence can be completely accurately made”).

       We note that even this assumption is not beyond doubt. Although Barnes testified that the robbery occurred some time after 1:00 a.m., Arnold testified that he believed it occurred some time around 11:30 p.m. or 12:00 a.m.

        See Bell, 227 Ga. at 807-08 (3) (reversing denial of defendant’s motion for new trial based on newly discovered material evidence when person convicted for another crime provided an affidavit stating that he committed the crime for which defendant was convicted and that defendant had not participated in it); Humphrey v. State, 207 Ga. App. 472, 475 (1) (428 SE2d 362) (1993) (reversing denial of defendant’s motion for new trial based on new material evidence that alleged victim had made statements to witness indicating that victim had consented to sexual intercourse with defendant); Lee v. State, 146 Ga. App. 189, 192 (III) (245 SE2d 878) (1978) (holding that defendant was entitled to new trial because newly discovered eyewitness testimony that victim raised a gun toward defendant constituted material evidence supporting defendant’s self-defense theory); Walters v. State, 128 Ga. App. 232, 234-35 (2) (196 SE2d 326) (1973) (reversing denial of defendant’s motion for new trial because new evidence consisting of affidavit by sole and independent eyewitness to the crime that supported defendant’s account of the shooting was material). Compare Brinson v. State, 288 Ga. 435, 436-37 (3) (704 SE2d 756) (2011) (holding, in the context of affirming the denial of a motion for new trial, that a receipt showing that defendant picked up food from a restaurant at around 8:30 p.m. was not material because the shootingfor which defendant was convicted did not occur until 10:30 p.m. and, thus, the receipt did not impact whether defendant had time to commit the shooting).

        Brown v. State, 264 Ga. 803, 806 (3) (450 SE2d 821) (1994) (punctuation, omitted).

        Id. (emphasis supplied; punctuation omitted); see Bell, 227 Ga. at 806-07 (3); Humphrey, 207 Ga. App. at 475 (1).

        See Bell, 227 Ga. at 807 (3) (holding that newly discovered evidence that strengthened defendant’s alibi was not cumulative because it was of a different grade); Humphrey, 207 Ga. App. at 475 (1) (holding that testimony of new witness corroborating defendant’s claim that victim consented to sex was not cumulative).