text:
    A13A1308.
    WALKER v. THE STATE.
    (747 SE2d 691)
   Miller, Judge.

Following a jury trial, Warren Walker was convicted of three counts of sale of l-(3-Trifluoromethylphenyl) piperazine (“TFMPP”) (OCGA § 16-13-30 (b)). Walker appeals from the denial of his motion for new trial, contending that (1) there was insufficient evidence to support his conviction and (2) there was a fatal variance between the controlled substance as alleged in the indictment and the substance identified at trial. For the following reasons, we affirm.

Following a criminal conviction, the defendant is no longer presumed innocent, and we construe the evidence in the light most favorable to the jury’s verdict. This Court determines whether the evidence is sufficient under the standard oí Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [S]tate’s case, we must uphold the jury’s verdict.

(Citations and punctuation omitted.) Boggs v. State, 304 Ga. App. 698, 698 (1) (697 SE2d 843) (2010).

So viewed, the evidence showed that upon receiving a confidential informant’s tip that Eric Melton was selling Ecstasy, police officers directed the confidential informant to make controlled drug buys from Melton. In February 2009, the confidential informant arranged to purchase approximately 100 Ecstasy pills from Melton. The confidential informant visited Melton at his workplace, and police officers surveilled the building. While the confidential informant was inside the building, officers observed a gray colored Mercury Grand Marquis pull into the parking lot. Melton then exited the building and made contact with the driver, who was later identified as Walker. Melton and Walker had a brief conversation before Walker left. Melton returned inside the building and gave the confidential informant 100 pills that field-tested positive for Ecstasy.

In March 2009, the police officers conducted another controlled buy from Melton at his workplace. While the confidential informant was inside with Melton, officers observed Walker arrive in the same Mercury Grand Marquis that they had seen during the first controlled drug buy. As before, Melton exited the building, approached Walker, and after a brief conversation, went back inside the building where he handed the confidential informant two bags filled with a total of 188 pills that field-tested positive for Ecstasy. The officers then followed Walker back to his residence and began to keep him under surveillance.

That same month, officers arranged to make a third controlled buy from Melton for 1,000 Ecstasy pills. After the confidential informant scheduled the drug buy from Melton, Walker left his residence in his gray vehicle and was followed by police officers. When Walker arrived at Melton’s workplace, Melton exited the building and met with Walker. Walker left after a brief conversation with Melton, and Melton returned to the building where he sold 891 pills to the confidential informant that field-tested positive for Ecstasy.

Shortly after leaving Melton’s workplace, Walker was arrested and read his Miranda rights. Walker indicated he understood these rights and waived them by signing a waiver form. During police questioning, Walker admitted that he supplied Melton with 500 or 600 pills. A sample of pills from each controlled buy was subsequently tested in a laboratory, and the results of the tests revealed that the pills were TFMPP, an Ecstasy-like compound that is referred to on the street as “Ecstasy.”

1. Walker contends that the evidence was insufficient to sustain his convictions because no witness saw him do anything illegal, no drugs were recovered from his person or his vehicle, and he was merely present at the scene of the controlled drug buys. We disagree.

OCGA § 16-13-30 (b) provides that “it is unlawful for any person to . . . deliver, distribute, dispense, administer, sell, or possess with intent to distribute any controlled substance.” TFMPP is a controlled substance. OCGA § 16-13-25 (8).

One who intentionally aids or abets in the commission of a crime is a party to it. OCGA § 16-2-20 (b) (3). A defendant’s presence, companionship, and conduct before and after the offense are circumstances from which his participation in the criminal intent may be inferred. A defendant will not be presumed to act with criminal intention, but the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the defendant is prosecuted. If the totality of circumstantial evidence is sufficient to connect the defendant with the possession of the drugs, the conviction will be sustained, even though there is evidence to authorize a contrary finding.

(Citations and punctuation omitted.) Martinez v. State, 314 Ga. App. 551, 552-553 (1) (724 SE2d 851) (2012). Moreover,

[i]t is axiomatic that a confession alone, uncorroborated by any other evidence, does not justify a conviction. However, a free and voluntary confession of guilt by the accused is direct evidence of the highest character and is sufficient to authorize a conviction when corroborated by proof of the corpus delicti. The evidence corroborating a confession, however, need not definitely connect the defendant to the crime; corroboration in any material particular satisfies the legal requirement.

(Citations and punctuation omitted.) Id. at 553 (1).

Here, Walker freely and voluntarily admitted that during the last controlled drug buy, he supplied Melton with 500-600 pills. These pills tested positive for TFMPP. In addition to Walker’s admission, the evidence showed that during the third controlled buy, Walker left his residence and went to Melton’s workplace soon after the confidential informant called Melton to arrange the drug buy. During all of the controlled purchases, Walker briefly visited Melton at the location of the controlled drug buy and upon his departure, Melton provided the confidential informant with pills that contained the chemical substance TFMPP. Accordingly, this combined evidence established that Walker actively participated in and was a party to the three separate sales of TFMPP. See Martinez, supra, 314 Ga. App. at 554 (1).

2. Walker contends that there was a fatal variance between the controlled substance named in the indictment and the controlled substance identified at trial. We disagree.

The indictment in this case charged Walker with the sale of l-(3-Trifluoromethylphenyl) piperazine (TFMPP). At trial, the State’s crime lab analyst testified that the pills recovered from the controlled drug buy tested positive for “TFMPP, one three trichloromethylphenelpipraline.” Walker argues that the analyst’s description of the drug as “trichloromethylphenelpipraline” demonstrated a fatal variance between the indictment and the evidence and, therefore, the evidence is insufficient to sustain his convictions.

However, [Walker] failed to raise this issue at the time of his motion for directed verdict, and the record fails to demonstrate that he raised the fatal variance issue before the trial court. The issue is therefore waived for purposes of appeal.

(Citation and punctuation omitted.) Palmer v. State, 286 Ga. App. 751, 753-754 (2) (650 SE2d 255) (2007).

Even if not waived, Walker’s claim is without merit. Although the chemical analyst described the drug as “trichloromethylphenelpipraline,” she also clearly identified the pills as TFMPP, which matched the controlled substance listed in the indictment. Moreover, the analyst’s reports admitted into evidence clearly showed that the pills tested positive for TFMPP. As a result, there was no fatal variance between the allegations and the proof.

Decided August 8, 2013.

Ryan S. Raines, for appellant.

Meg E. Heap, District Attorney, Sarah L. Moorhead, Jerome M. Rothschild, Jr., Assistant District Attorneys, for appellee.

Judgment affirmed.

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

       Walker was also charged with possession of a drug related object (OCGA § 16-13-32.2) in the form of digital scales, but the trial court granted Walker’s motion for a directed verdict on this count.

       While Walker relies upon Williamson v. State, 134 Ga. App. 864 (216 SE2d 684) (1975), in support of his fatal variance claim, that case is inapposite. Unlike the situation here, in Williamson, there was no evidence introduced at trial that the drug listed in the indictment was the same as that identified at trial. See id. at 865 (1).


source: Caselaw Access Project

author: Ray, Judge.

license: Public Domain

text:
    A13A1355.
    PRUITT v. THE STATE.
    (747 SE2d 694)
   Ray, Judge.

Landrea Pruitt appeals from the denial of her motion to withdraw a nonnegotiated guilty plea, arguing that because her trial counsel rendered ineffective assistance, the trial court’s denial was an abuse of discretion. We disagree and affirm.

On May 2, 2011, a grand jury indicted Pruitt on five counts of theft by taking pursuant to OCGA § 16-8-2. The charges stemmed from allegations that Pruitt took funds from related businesses for which she served as a bookkeeper and accounting manager. Her case was tried before a jury, and on October 28, 2011, prior to closing arguments, Pruitt entered a guilty plea on all counts, which the trial court accepted following a hearing. The trial court sentenced Pruitt as a recidivist to twenty years, with seven to serve in confinement and the balance to be served on probation. The trial court also ordered Pruitt to pay $31,559.61 in restitution and a $1,000 fine. On November 21, 2011, Pruitt timely moved to withdraw her guilty plea, alleging, inter alia, that she received ineffective assistance of counsel. Following a hearing, the trial court denied that motion. Pruitt appeals.

1. As an initial matter, we note that Pruitt’s brief fails to comply with our rules. Pruitt has propounded a compound enumeration of error and, as to some issues, has failed to provide record citations or cite to relevant legal authority.

Our requirements for appellate briefs “were created not to provide an obstacle, but to aid parties in presenting arguments in a manner most likely to be fully and efficiently comprehended by this Court; a party will not be granted relief should we err in deciphering a brief which fails to adhere to the required form.” (Footnote omitted.) Currid v. DeKalb State Court Probation Dept., 274 Ga. App. 704, 706 (1) (618 SE2d 621) (2005). Pruitt further offers an array of merely conclusory statements in support of the enumeration, which “are not the type of meaningful argument contemplated by [Court of Appeals] Rule 25 (a) (3).” (Citation and punctuation omitted.) Towry v. State, 304 Ga. App. 139, 148 (2) (g), n. 7 (695 SE2d 683) (2010). “[T]his Court will not cull the record in search of error on behalf of a party. Accordingly, if we have missed something in the record or misconstrued an argument, the responsibility rests with counsel.” Burrowes v. State, 296 Ga. App. 629, 631 (1) (675 SE2d 518) (2009).

2. In her compound enumeration of error, Pruitt alleges, inter alia, that her trial counsel was ineffective in failing to investigate and prepare for the case because trial counsel did not pick up discovery materials until several days before trial, did not speak to certain potential witnesses, and did not consult with Pruitt between arraignment and trial.

“After sentence is pronounced, whether to allow the withdrawal of a guilty plea lies within the trial court’s sound discretion, and we review the trial court’s decision for manifest abuse of that discretion.” (Citation and punctuation omitted.) Bailey v. State, 313 Ga. App. 824, 824-825 (723 SE2d 55) (2012). Because Pruitt’s motion was based on an ineffective assistance of counsel claim, the trial court was required to apply the two-pronged test set forth in Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984), to determine whether counsel’s performance was deficient and, if so, whether Pruitt was prejudiced by the deficiency. Bailey, supra at 825. “Although the State generally bears the burden of establishing the validity of a plea on a motion to withdraw, [Pruitt] bears the burden in this case of establishing [her] claim of ineffective assistance of counsel.” (Citation omitted.) Id. Pruitt had to show the trial court that “there is a reasonable probability that, but for defense counsel’s errors, [she] would not have pleaded guilty. [Pruitt] carries an even heavier burden on appeal because the trial court’s [factual] findings on these issues will not be disturbed absent a showing of clear error.” (Citations omitted.) McCloud v. State, 240 Ga. App. 335, 335 (1) (525 SE2d 701) (1999). This Court independently applies the legal principles to the facts. Suggs v. State, 272 Ga. 85, 87 (4) (526 SE2d 347) (2000).

At the hearing on her motion to withdraw, Pruitt relied solely on her own testimony, and she did not present other witnesses or call trial counsel to testify. In considering an ineffectiveness claim, there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, and if trial counsel does not testify, “it is extremely difficult to overcome this presumption.” (Footnote omitted.) Hutto v. State, 320 Ga. App. 235, 240 (3) (739 SE2d 722) (2013).

Pruitt was represented by retained counsel when she pled guilty. When Pruitt pled, she testified that she understood that she was giving up her rights to have a jury determine her guilt or innocence, that she was admitting to the offenses in the indictment, that she understood the maximum penalties for each count against her, and that she understood that she would be sentenced as a recidivist. She further testified that she had received a notice of habeas corpus rights, that she had reviewed it with her attorney and understood her rights, that she was voluntarily pleading guilty, and that she had not been coerced or pressured in any way.

(a) Failure to prepare for trial. Pruitt contends that trial counsel “wholly failed to prepare and investigate” her case such that “the whole proceeding lost its character as a confrontation between adversaries.” She argues on appeal that her lawyer did not pick up discovery materials until a few days before trial and thus was not adequately prepared, and that he did not review discovery with her. However, at the hearing on her motion to withdraw her guilty plea, she testified that she was not sure when her lawyer picked up or reviewed the discovery materials. She testified, both at trial and at the hearing on her motion to withdraw her plea, that she had seen all documentary evidence against her and that she saw the State’s evidence at trial.

Pruitt presented no evidence at the hearing on the motion to withdraw her plea, nor does she make any argument on appeal, regarding the nature of the evidence she refers to or what it would have shown. Thus, it is impossible for us to know whether the evidence at issue even was presented at trial. See Fraser v. State, 283 Ga. App. 477, 484 (4) (d) (642 SE2d 129) (2007). Further, Pruitt has made no showing as to how her counsel’s alleged failure to review the evidence until shortly before trial either prejudiced her trial or influenced her decision to plead guilty. We are not required to address both the deficient performance and prejudice prongs of the ineffective assistance of counsel test if the defendant has made an insufficient showing on either one of them, and “a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Strickland, supra at 697 (IV). There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. at 689 (III) (A).

Further, the record belies Pruitt’s claim that counsel was so unprepared that the trial lost its character as a confrontation between adversaries. Trial counsel objected to the State’s motion in limine and cross-examined the State’s witnesses. On cross-examination, he asked about the operation of the businesses for which Pruitt worked; he elicited testimony showing that the company’s owner was often absent, implying that she had authority to sign checks; he showed that the owner could not definitively state which transactions were unauthorized; and he raised the question of whether some of the records used to show that Pruitt had made unauthorized payments to herself were faulty. He also moved, albeit unsuccessfully, for a directed verdict. Thus, we cannot say that the trial court abused its discretion in finding counsel effective on these grounds.

(b) Failure to speak to potential witnesses. Although Pruitt argues that trial counsel was ineffective in failing to subpoena witnesses she had suggested, the witnesses did not testify at the motion to withdraw the guilty plea. We note that on appeal Pruitt makes no argument as to how the lack of their testimony prejudiced her case.

Although trial counsel did not testify at the motion to withdraw guilty plea hearing, during the trial itself Pruitt informed the court that there were witnesses she had wanted to subpoena. Pruitt’s trial counsel stated that, despite using an investigator and making calls himself, he was unable to contact the witnesses and that Pruitt gave him new contact information at such a late date that he could not reach the witnesses before trial. The trial court asked, “So, it’s not due to lack of trying, it’s just due to the fact that you’re unable to locate them; is that correct?” To which counsel replied, Wes.” Counsel also testified that in his opinion, as a strategic matter, the witnesses Pruitt wished to call would not have provided evidence showing she was not guilty. He further said that it was his duty to “protect” her and to make a strategic decision that it “may not be beneficial to bring people in, because sometimes the tables can turn very ugly in a criminal case.” Rather, he explained that his strategy was to focus on the overall financial disorganization of the company and on Pruitt’s own testimony.

Counsel’s decision not to call the witnesses was based, in part, on strategy. See Jones v. State, 315 Ga. App. 427, 433 (3) (727 SE2d 216) (2012) (decision about which defense witnesses to call is a matter of trial tactics and strategy, and whether that decision is reasonable is a question of law, not fact). Without an affirmative showing that evidence from these witnesses would have supported Pruitt’s defense and that the witnesses were not called because of negligent oversight by counsel rather than as a matter of trial strategy, “it is impossible for the defendant to show there is a reasonable probability [that] the results of the trial would have been different.” (Citation omitted.) Id. We discern no error.

Decided August 8, 2013.

Ann M. Fitz, for appellant.

(c) Failure to consult adequately with Pruitt. Pruitt argues on appeal that she did not consult with her lawyer between arraignment and trial. At the hearing on her motion to withdraw her guilty plea, Pruitt testified that she had no in-person meetings with counsel between the time of her arraignment and the time of trial. However, the record indicates that Pruitt did talk with her counsel the week prior to trial at a calendar call and by telephone. Further, at trial, the trial court asked Pruitt if she had had an opportunity to consult with her attorney about whether or not to testify, and she responded, “Yes.” She also testified that she had spoken with trial counsel about the witnesses she wanted to call. Further, in asking the court for lenience, trial counsel stated that he had prepared his client for a possible prison sentence, and that he had given her “in-depth” explanations about the legalities or illegalities of money-handling in the context of how her case would play out.

Although Pruitt clearly desired more pre-trial contact with and preparation by her counsel, “[t]here is no magic amount of time which a counsel must spend in preparation for trial in order to provide a client with adequate counsel.” (Citations and punctuation omitted.) Daniels v. State, 296 Ga. App. 795, 799 (5) (a) (676 SE2d 13) (2009). Also, Pruitt has failed to point to any evidence or defenses that could have been presented had her counsel spent more time talking with her and preparing for the case, and given the lack of testimony from trial counsel, we cannot conclude that the trial court abused its discretion in denying her motion to withdraw her guilty plea on account of ineffective assistance of counsel. See id. at 800 (5) (a).

3. As part of the same compound enumeration, Pruitt also argues that various individual errors by counsel should be considered as a whole in assessing ineffectiveness. “Georgia does not recognize the cumulative error doctrine.” (Citation omitted.) Fraser, supra at 482 (4). Further, as Pruitt offers no citations to the record or to authority on these particular issues, they are abandoned pursuant to Court of Appeals Rule 25 (c) (2).

Judgment affirmed.

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

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

       Despite the grant of one extension of time in which to file an appellate brief and a request for a second extension, the State failed to file its brief until more than two months after its deadline to do so. Therefore, we do not consider the State’s brief in our analysis.


author: BARNES, Presiding Judge.

text:
    A13A0913.
    GAJAANAN INVESTMENT, LLC v. SHAHIL & SOHAIL CORPORATION, INC.
    (747 SE2d 713)
   BARNES, Presiding Judge.

In this case involving a dispute over the sale of a gasoline and convenience store business, Gajaanan Investment, LLC sued several defendants for breach of contract and fraud. A jury returned a verdict in favor of Gajaanan Investment on its breach of contract and fraud claims. The trial court thereafter granted the defendants’ renewed motion for a directed verdict on the fraud claim and entered judgment on the jury verdict in favor of Gajaanan Investment only on the breach of contract claim. On appeal, Gajaanan Investment contends that the trial court erred by failing to grant its motion to preclude the defendants from contesting the merits of the fraud claim under the doctrines of res judicata and collateral estoppel, and by granting the defendants’ renewed motion for a directed verdict on the fraud claim. For the reasons discussed below, we affirm.

The record reflects that in February 2008, Shahil & Sohail Corporation, Inc. sold the assets of its gasoline and convenience store business to Gajaanan Investment. Shahil & Sohail Corporation’s principals, Vanjaria Masoom and Yusafali Lorgat, participated in the transaction and made certain representations to Gajaanan Investment regarding the sale of the business. Subsequently, in August 2008, Gajaanan Investment commenced this action against Shahil & Sohail Corporation, Masoom, and Lorgat, alleging breach of contract and fraud in connection with the sale.

Defendants Masoom and Lorgat then filed a petition for protection under Chapter 7 of the United States Bankruptcy Code in the United States Bankruptcy Court for the Northern District of Georgia. Gajaanan Investment responded by filing an adversary proceeding in the bankruptcy court in which it argued that its claims asserted against Masoom and Lorgat in the state court action were nondischargeable and that, consequently, the automatic bankruptcy stay should be modified so that the state court action could proceed.

On February 9, 2012, following a trial in the adversary proceeding, the bankruptcy court entered an order finding that because Masoom and Lorgat had “fraudulently misrepresented a critical fact in connection with the sale of [their] business to [Gajaanan Investment], any damages that arise from that misrepresentation are nondischargeable.” (Emphasis in original.) Consequently, the bankruptcy court ruled that the automatic bankruptcy stay would be modified “to permit [Gajaanan Investment] to litigate [its] claims against Defendants [Masoom and Lorgat] in state court, including damages.”

The state court action moved forward after the automatic stay was modified, a pretrial conference was held and a pretrial order entered, and a jury trial ultimately was set to begin on July 16, 2012. On the morning of July 16, Gajaanan Investment for the first time filed a motion to preclude the defendants from contesting the merits of its fraud claim under the doctrines of res judicata and collateral estoppel. Gajaanan Investment argued that the bankruptcy court’s finding in its February 9, 2012 order that Masoom and Lorgat had made a fraudulent misrepresentation in connection with the sale of the business precluded the defendants from challenging the merits of the fraud claim in the state court action. Gajaanan Investment requested that the trial court rule that the only remaining issue for a jury to determine with respect to its fraud claim was the amount of actual and punitive damages that should be awarded.

At the pretrial motions hearing held later that day, Gajaanan Investment called the trial court’s attention to its motion filed that morning and argued that res judicata and collateral estoppel applied with regard to its fraud claim. The defendants responded that res judicata and collateral estoppel did not apply because the bankruptcy court had merely “determine [d] the dischargeability of the action that was already pending” and had not intended to adjudicate the merits of the controversy. The defendants further responded that Gajaanan Investment’s motion, filed on the morning of trial, was inconsistent with and violated the pretrial order that had been entered. The trial court denied Gajaanan Investment’s motion. Gajaanan Investment later asked for reconsideration of its motion, and the defendants argued, among other things, that the motion should be denied because “[t]here is a pretrial order in this case that was entered.” The trial court denied the motion for reconsideration.

A jury trial ensued on Gajaanan Investment’s claims for breach of contract and fraud. After the close of all the evidence, Gajaanan Investment renewed its motion for application of res judicata and collateral estoppel. The defendants responded that the pretrial order controlled, and the trial court denied Gaj aanan Investment’s renewed motion.

The defendants moved for a directed verdict on Gajaanan Investment’s fraud claim, and the trial court deferred ruling on the motion until after the jury’s verdict. The jury returned a verdict in favor of Gajaanan Investment, and the defendants renewed their motion for a directed verdict on the fraud claim. The trial court granted the defendants’ renewed motion. The trial court subsequently entered judgment in favor of Gajaanan Investment on its breach of contract claim but denied Gajaanan Investment recovery on its fraud claim. Gajaanan Investment now appeals from the judgment.

1. Gajaanan Investment contends that the trial court erred in denying its motion to preclude the defendants from contesting the merits of its fraud claim under the doctrines of res judicata and collateral estoppel. We disagree.

The doctrines of res judicata and collateral estoppel both require an adjudication on the merits by a court of competent jurisdiction in a prior action between the same parties or their privies. See Valdez v. R. Constr., Inc., 285 Ga. App. 373, 374 (646 SE2d 329) (2007). Here, however, there was no prior adjudication on the merits by the bankruptcy court. Notably, the bankruptcy court’s discussion of the fraud issue was in the context of its ruling on whether the automatic stay should be modified so that the pending state court litigation could proceed. Where, as in the present case, a debtor files for bankruptcy protection during the pendency of a state court action, jurisdiction of the state court is suspended until the automatic bankruptcy stay is lifted, whereupon the case resumes the status it occupied when the stay initially took effect. See Jinks v. Eastman Enterprises, 317 Ga. App. 489, 491 (731 SE2d 378) (2012); Strauss Fuchs Organization v. LaFitte Investments, 177 Ga. App. 891, 893-894 (1) (341 SE2d 873) (1986). In other words, a bankruptcy court order modifying the automatic stay simply returns the parties in the already pending state court action to the status quo ante; it does not render a final determination as to the nature and extent of the rights of the parties under state law. The bankruptcy court’s February 9, 2012 order thus was not entitled to preclusive effect, and Gajaanan Investment’s reliance on that order to support its argument for the application of res judicata and collateral estoppel was misplaced.

Furthermore, a “bankruptcy court’s order lifting the stay determines the scope of actions it is allowing.” Butler v. Household Mtg. Svcs., 244 Ga. App. 353, 354 (1) (535 SE2d 518) (2000). In the present case, the bankruptcy court, in modifying the automatic bankruptcy stay, expressly authorized the litigation of the fraud claim to proceed in the state court case and thus did not intend to conclusively determine the outcome of that claim. Specifically, as noted supra, the bankruptcy court ruled in its February 9, 2012 order that the automatic bankruptcy stay would be modified “to permit [Gajaanan Investment] to litigate [its] claims against Defendants [Masoom and Lorgat] in state court, including damages.” (Emphasis supplied.) The face of the bankruptcy court’s order, therefore, reflects that the bankruptcy court did not intend to limit the litigation in the state court action to the issue of damages on Gajaanan Investment’s fraud claim. As such, the doctrines of res judicata and collateral estoppel were inapplicable to the fraud claim, as the trial court properly determined. See Akridge v. Silva, 298 Ga. App. 862, 866-867 (3) (681 SE2d 667) (2009) (res judicata did not bar relitigation over proper distribution of funds in bank account, where bankruptcy court order expressly “allow[ed] the state court to determine the proper distribution”).

Nevertheless, even if the bankruptcy court’s February 9, 2012 order constituted a prior adjudication on the merits of the fraud claim, we still would affirm the trial court’s denial of Gajaanan Investment’s motion under the circumstances of this case. As previously indicated, the defendants’ principal argument before the trial court was that Gajaanan Investment’s motion for application of res judicata and collateral estoppel, which was not filed until the morning of trial, was inconsistent with and violated the pretrial order that had been entered and should be denied on that basis.

“The Civil Practice Act provides that once entered, the pretrial order controls the subsequent course of the action unless modified at the trial to prevent manifest injustice.” (Punctuation and footnote omitted.) Dept. of Human Resources v. Phillips, 268 Ga. 316, 318 (1) (486 SE2d 851) (1997). See OCGA § 9-11-16 (b). “[Ujnless the pretrial order is modified at or before trial, a party may not advance theories or offer evidence that violate the terms of the pretrial order.” (Citations and punctuation omitted.) Williams v. Martin, 273 Ga. App. 562, 564 (1) (615 SE2d 774) (2005). The decision whether to disallow a party from raising matters inconsistent with the pretrial order “is within the discretion of the trial court.” Morris v. Nat. Western Life Ins. Co., 208 Ga. App. 443, 445 (2) (430 SE2d 813) (1993). See Echols v. Bridges, 239 Ga. 25, 27 (235 SE2d 535) (1977).

Gajaanan Investment, however, elected not to specify the pretrial order for inclusion in the record, despite the fact that the pretrial order was central to the defendants’ argument before the trial court regarding why the motion for application of res judicata and collateral estoppel should be denied. Instead, Gajaanan Investment instructed the clerk of the state court to omit from the record on appeal everything except for its motion for application of res judicata and collateral estoppel; a certified copy of the bankruptcy court order; and excerpts from the trial transcript in which Gajaanan Investment raised the issues of res judicata and collateral estoppel.

Gajaanan Investment, as appellant, “bore the burden of ensuring an accurate and complete record on appeal” so that this Court could objectively and fully review the trial court’s ruling. (Citation and punctuation omitted.) Griffin Builders v. Synovus Bank, 320 Ga. App. 307, 309 (739 SE2d 760) (2013). See Boles v. Lee, 270 Ga. 454, 455 (1) (511 SE2d 177) (1999) (“A party alleging error carries the burden of showing it affirmatively by the record[.]”). Where, as here, “a portion of the record is not before this court which is necessary for our determination of one or more of the appellate issues raised, an affirmance as to those issues must result.” Atlanta Cas. Ins. Co. v. Crews, 197 Ga. App. 48, 51 (3) (397 SE2d 466) (1990). See Steele v. Atlanta Maternal-Fetal Medicine, 283 Ga. App. 274, 277 (2) (641 SE2d 257) (2007) (“In the absence of a sufficient record, we must assume that the trial court’s ruling was proper.”) (punctuation and footnote omitted). For this additional reason, the trial court’s denial of Gajaanan Investment’s motion for application of res judicata and collateral estoppel must be sustained. See id.

2. Gajaanan Investment also enumerates as error the trial court’s grant of the defendants’ renewed motion for a directed verdict on the fraud claim. But Gajaanan Investment does not present any separate legal argument for why the trial court should have denied the defendants’ renewed motion for a directed verdict. Rather, Gaj aanan Investment appears only to maintain that because the trial court should have granted its motion for application of res judicata and collateral estoppel regarding the fraud claim, the court likewise erred in granting the defendants’ renewed motion for a directed verdict on that claim. Consequently, the trial court’s grant of the defendants’ renewed motion for a directed verdict is affirmed for the same reasons discussed supra in Division 1.

Decided August 9, 2013.

Salu K. Kunnatha, for appellant.

Kevin J. Pratt, for appellee.

Judgment affirmed.

Miller and Ray, JJ., concur.

       Under the United States Bankruptcy Code, there is an exception to discharge for debts that a creditor can establish were incurred through “false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition.” See 11 USC § 523 (a) (2) (A).

       The present case is distinguishable from those where the state court action is brought only after the conclusion of the bankruptcy court proceedings. See Anderson Oil Co. v. Benton

        Oil Co., 246 Ga. 304, 305-306 (1) (271 SE2d 207) (1980); Playnation Play Systems v. Hammer, 277 Ga. App. 675, 676-677 (627 SE2d 415) (2006).

       Defendant Shahil & Sohail Corporation was not a party to the bankruptcy court adversary proceeding, nor is it in privity with Defendants Masoom and Lorgat. See Anderson Oil Co., 246 Ga. at 306 (2), n. 6 (corporation and corporate officer are not in privity for res judicata and collateral estoppel purposes). Compare Speir v. Krieger, 235 Ga. App. 392, 398-400 (3) (509 SE2d 684) (1998) (privity exists between corporation and corporate officer if the corporate veil has been pierced). For this additional reason, res judicata and collateral estoppel could not be applied against Defendant Shahil & Sohail Corporation. See Valdez, 285 Ga. App. at 374 (res judicata and collateral estoppel require prior action involving same parties or their privies).

       Any legal arguments that Gajaanan Investment could have made separately for reversing the trial court’s grant of the defendants’ renewed motion thus have been abandoned. See Court of Appeals Rule 25 (c) (2); Rolleston v. Estate of Sims, 253 Ga. App. 182, 188 (8) (558 SE2d 411) (2001).


text:
    A13A1057.
    STEPHENS v. THE STATE.
    (747 SE2d 711)
   BARNES, Presiding Judge.

Steven Stephens appeals his conviction for child molestation. He contends that the evidence was insufficient to support his conviction, and thus the trial court erred in failing to grant his motion for a new trial. Finding no error, we affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict.” (Citation and punctuation omitted.) Moore v. State, 319 Ga. App. 696 (738 SE2d 140) (2013); see also Jackson v. Virginia, 443 U. S. 307, 318 (99 SCt 2781, 61 LE2d 560) (1979). So viewed, the evidence showed that on September 8, 2007, the 13-year-old victim planned to spend the weekend with her father, Stephens, for the first time. Her mother believed that they would be staying with Stephens’ mother and his other children. Stephens arrived to pick up his daughter around 12:30, about three hours after she expected him. Instead of going to his mother’s apartment, Stephens took the victim to an abandoned house across the street on the pretense that it was his girlfriend’s house. Inside, Stephens sexually assaulted his daughter and cleaned her with a towel afterward.

The victim reported the incident to her mother the next evening, and her mother called the police, who met them at the abandoned house. Officers found a towel in a closet inside. The victim initially stated that Stephens had only touched her with his hands, but after receiving a false positive for an STD from the hospital, she informed the investigator assigned to her case that Stephens had actually raped her.

Stephens was arrested and indicted for rape, child molestation, false imprisonment, and incest. The court directed a verdict on the incest count due to insufficient evidence that Stephens was legally the victim’s father. The jury found him guilty of child molestation and not guilty of rape and false imprisonment. Stephens filed a motion for a new trial, arguing that the evidence does not support the verdict. The trial court denied this motion after a hearing. This appeal followed.

Stephens contends that a variance exists between the State’s proof and the act alleged in the indictment. Accordingly, he maintains that he should be granted a new trial. 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. It is the function of the jury, not this Court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. 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.

(Citations and punctuation omitted.) Moore, 319 Ga. App. at 698.

“A person commits the offense of child molestation when [he] [d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a) (1). “If the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance____[A] verments must be proved as laid, or the failure to prove the same as laid will amount to a variance.” (Citations and punctuation omitted.) Ross v. State, 195 Ga. App. 624, 625 (1) (b) (394 SE2d 418) (1990).

Here, the indictment alleges that Stephens committed child molestation by placing his hand on the victim’s “female sex organ.” Stephens claims that the State did not prove this offense because the victim did not specifically testify that this act occurred; rather, she testified that he touched her breasts and thighs. While this is true, the victim also testified that Stephens cleaned her vaginal area with a towel after the assault. This court has “decline [d] to hold that evidence of skin-to-skin contact [is] required to prove that [the defendant] touched the victim’s vagina or made physical contact with the victim’s genital area, as alleged in the indictment.” Gunn v. State, 300 Ga. App. 229, 230 (1) (684 SE2d 380) (2009).

Decided August 9, 2013.

Lee W. Fitzpatrick, for appellant.

Paul L. Howard, Jr., District Attorney, David K. GetachewSmith, Assistant District Attorney, for appellee.

Moreover, a number of other witnesses, including the victim’s mother, the investigator assigned to her case, the physician’s assistant who examined her after the assault, and a forensic interviewer testified that the victim’s initial allegation was that Stephens touched her vaginal area. These prior statements were admissible as substantive evidence under the Child Hearsay Statute, former OCGA § 24-3-16. See Chamblee v. State, 319 Ga. App. 484, 485 (735 SE2d 810) (2012). “The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-14-8. Therefore, the evidence was sufficient for a rational trier of fact to have found Stephens guilty beyond a reasonable doubt of child molestation in the manner alleged in the indictment. Accordingly, the trial court did not err in denying Stephens’ motion for a new trial.

Judgment affirmed.

Miller and Ray, JJ., concur.


author: Barnes, Presiding Judge.

text:
    A13A1096.
    BROUGHAM CASKET & VAULT COMPANY, LLC v. DeLOACH.
    (747 SE2d 707)
   Barnes, Presiding Judge.

In this suit on an open commercial account, the registered agent of defendant Brougham Casket & Vault Company, LLC (“Brougham”), who was not an attorney, signed and served Brougham’s responses to the plaintiff’s requests for admission. Concluding that Brougham could only be represented in the litigation by an attorney, the trial court ruled that the responses were defective and struck them. The trial court further ruled that the plaintiff’s requests for admission were deemed admitted by Brougham by operation of law; that Brougham had failed to properly seek to withdraw or amend the admissions; and that, as a result of the admissions, the plaintiff was entitled to judgment as a matter of law on his open account claim. On appeal, Brougham challenges the trial court’s grant of judgment as a matter of law to the plaintiff, and for the reasons discussed below, we affirm.

The record reflects that William W. DeLoach filed this suit on an open commercial account against Brougham, alleging that Brougham was indebted to him in the principal amount of $50,834.72 based on a series of loans that it had failed to repay. DeLoach thereafter served several requests for admission on Brougham that covered the substantive allegations of his complaint. Brougham’s responses to the requests for admission were signed and served on DeLoach by its registered agent, who was not an attorney.

Brougham’s president, who was incarcerated, ultimately retained counsel for the company. Brougham then filed a “Motion to Modify Response to Request for Admission” (the “Motion to Modify”). In its Motion to Modify, Brougham sought “to modify and/or vacate” its prior responses to the requests for admission, which it conceded had been served on DeLoach “without the representation of counsel as required by law.” Brougham sought to serve amended responses upon DeLoach through its new counsel.

DeLoach filed a brief opposing Brougham’s Motion to Modify. Additionally, when the parties later appeared for trial, DeLoach moved for judgment as a matter of law on his open account claim, contending that Brougham’s original responses to his requests for admission were defective because they had been served on him by a nonlawyer and thus should be stricken, that the requests for admission should be deemed admitted by Brougham by operation of law in light of the defective responses, and that Brougham’s Motion to Modify was not a proper motion to withdraw or amend the admissions under OCGA § 9-11-36 (b).

The trial court agreed with DeLoach. Accordingly, the trial court struck Brougham’s original responses to the requests for admission; held that DeLoach’s requests for admission were deemed admitted by operation of law; refused to allow Brougham to withdraw or amend the admissions; and determined that, as a result of the admissions, there were no genuine issues of material fact in dispute and DeLoach was entitled to judgment as a matter of law. Based on these rulings, the trial court entered final judgment in favor of DeLoach on his open account claim in the principal amount of $50,834.72, plus interest, attorney fees, and costs. Brougham then filed a motion for new trial, which the trial court denied, resulting in this appeal.

1. As an initial matter, Brougham does not contest that its original responses to the requests for admission were defective because they were served on DeLoach by a nonlawyer. See Eckles v. Atlanta Technology Group, 267 Ga. 801, 803-806 (2) (485 SE2d 22) (1997) (corporations can be represented in litigation only by attorneys); Winzer v. EHCA Dunwoody, 277 Ga. App. 710, 713-714 (3) (627 SE2d 426) (2006) (limited liability companies, like corporations, must be represented by attorneys in courts of record). See also Howell v. Styles, 221 Ga. App. 781, 784 (3) (472 SE2d 548) (1996) (requests for admission served on behalf of corporation by individual not authorized to practice law are defective, and opposing party need not respond to them). Consequently, Brougham failed to properly “serve[ ] upon the party requesting the admission a written answer or objection addressed to the matter” as required by OCGA § 9-11-36 (a) (2), and the trial court was authorized to strike the defective responses and give them no legal effect. See Howell, 221 Ga. App. at 784 (3). Cf. US-1 Van Lines of Ga. v. Ho, 240 Ga. App. 417, 417-418 (1) (523 SE2d 643) (1999) (physical precedent only) (trial court properly refused to consider motion for continuance filed on behalf of corporation by nonlawyer).

Brougham contends, however, that it was entitled to cure the defect in its original responses to the requests for admission by having its newly retained counsel serve amended responses on DeLoach. As such, Brougham argues that the trial court erred by denying its Motion to Modify, by concluding that DeLoach’s requests for admission were deemed admitted by operation of law, and by granting judgment as a matter of law to DeLoach. We are unpersuaded.

Unless a response to requests for admission is timely and properly served upon the party requesting the admission, the requests are deemed admitted as a matter of law. See OCGA § 9-11-36 (a) (2), (b); Fox Run Properties v. Murray, 288 Ga. App. 568, 569 (1) (654 SE2d 676) (2007); Hammett v. Bailey, 147 Ga. App. 105, 106 (248 SE2d 180) (1978). Once the requests are deemed admitted, each of the matters addressed in the requests “are conclusive as a matter of law on the matters stated and cannot be contradicted by other evidence unless the admissions are withdrawn or amended on formal motion.” (Citations and punctuation omitted.) Fox Run Properties, 288 Ga. App. at 569 (1). The burden is on the party who failed to timely and properly respond to the requests for admission “to take the initiative and file a motion under OCGA § 9-11-36 (b) to withdraw or amend the admissions.” Karat Enterprises v. Marriott Corp., 196 Ga. App. 769, 770 (397 SE2d 44) (1990).

Under OCGA § 9-11-36 (b), a trial court may permit a party to withdraw or amend the admissions if “(1) the presentation of the merits will be subserved by the withdrawal, and (2) the party obtaining the admission fails to satisfy the court that withdrawal will prejudice him in maintaining his action or defense on the merits.” (Citations omitted.) Fox Run Properties, 288 Ga. App. at 570 (1).

The first prong of the test is not perfunctorily satisfied and the desire to have a trial, standing alone, is not sufficient to satisfy the test. If the burden of proof on the subject matter of the request for admission is on the requestor, the movant is required to show the admitted request either can be refuted by admissible evidence having a modicum of credibility or is incredible on its face, and the denial is not offered solely for purposes of delay. If the movant fails to make the required showing to satisfy the first prong of the test, then the trial court is authorized to deny the motion to withdraw the admissions.

(Citations and punctuation omitted.) Turner v. Mize, 280 Ga. App. 256, 257 (1) (633 SE2d 641) (2006). “We will not disturb the trial court’s ruling on a motion to withdraw admissions absent a showing of abuse of discretion.” Fox Run Properties, 288 Ga. App. at 570 (1).

Here, as previously explained, Brougham’s original responses to the requests for admission were defective and were properly stricken by the trial court, and, therefore, the requests for admission were deemed admitted by operation of law unless successfully withdrawn or amended upon proper motion by Brougham. But Brougham never filed a proper motion to withdraw or amend the admissions and never sought to establish that the merits would be subserved by permitting withdrawal or amendment of the admissions.

Instead of filing a motion to withdraw or amend the admissions in accordance with OCGA § 9-11-36 (b), Brougham filed its Motion to Modify in which it simply notified the trial court that it now had retained counsel and asked that new counsel be permitted to serve amended responses on DeLoach. Consequently, Brougham failed to satisfy its burden of showing that the presentation of the merits would be subserved by allowing withdrawal or amendment of the admissions, and the trial court did not abuse its discretion in denying Brougham’s Motion to Modify and deeming DeLoach’s requests for admission admitted by operation of law. See Brooks v. RES-GA ALBC, LLC, 317 Ga. App. 264, 267 (1) (730 SE2d 509) (2012); Worth v. Alma Exchange Bank & Trust, 171 Ga. App. 748, 752-753 (2) (320 SE2d 816) (1984).

However, relying on Peachtree Plastics v. Verhine, 242 Ga. App. 21, 22 (528 SE2d 837) (2000), Brougham contends that it was entitled as a matter of right under OCGA § 9-11-15 (a) to cure its prior defective responses to the requests for admission simply by having its newly retained attorney serve amended responses on DeLoach prior to entry of the pretrial order. As such, Brougham contends that OCGA § 9-11-36 (b) does not control in this case and that it was not required to show that the presentation of the merits would be subserved by allowing withdrawal or amendment of the admissions.

Brougham’s reliance on Peachtree Plastics and OCGA § 9-11-15 is misplaced. Peachtree Plastics involved a situation where the defendant corporation’s answer was originally filed by a nonlawyer, and amendment of an answer is controlled by OCGA § 9-11-15 (a), which addresses the amendment of “pleadings.” But a response to requests for admission is not a “pleading.” See OCGA § 9-11-7 (a); Chandler v. Opensided MRI of Atlanta, 299 Ga. App. 145, 148 (2), n. 5 (682 SE2d 165) (2009) (noting that “pleadings are defined as seven specific filings, including a ‘complaint’ and an ‘answer’ ”). Thus, the present case is controlled by the withdrawal and amendment provisions of OCGA § 9-11-36 (b), not OCGA § 9-11-15 (a). See Schafer v. Wachovia Bank of Ga., 248 Ga. App. 466, 469 (2) (546 SE2d 846) (2001) (distinguishing amendment of complaint from withdrawal or amendment of admissions, which are “governed by different specific statutory procedure[s] and scheme[s]”).

For these combined reasons, the trial court committed no error in determining that Brougham’s original responses to the requests for admission were defective and should be stricken, that the requests for admission were deemed admitted by operation of law, and that Brougham had not met the requirements for withdrawing or amending the admissions. Furthermore, because Brougham’s admissions left no genuine issue of material fact in dispute, DeLoach was entitled to judgment as a matter of law on his open account claim, as the trial court properly ruled. See Powerhouse Custom Homes v. 84 Lumber Co., 307 Ga. App. 605, 608 (705 SE2d 704) (2011).

2. In a separate enumeration of error, Brougham contends that DeLoach should have been estopped from arguing, on the day of trial, that he was entitled to judgment as a matter of law based on the defective responses to his requests for admission. In this regard, Brougham maintains that DeLoach’s motion violated the consolidated pretrial order entered in the case and that the trial court should have denied the motion on that ground. The pretrial order, however, is not included in the appellate record. Brougham carries the burden of providing this court with a sufficient record to review the enumeration of error raised, and because Brougham has failed to meet this burden, we must assume that the record supported the trial court’s ruling. See Knight v. City of Hogansville, 314 Ga. App. 233 (723 SE2d 442) (2012); Mapp v. We Care Transp. Svcs., 311 Ga. App. 879, 879-880 (717 SE2d 263) (2011).

Decided August 9, 2013.

Allan E. Alberga, for appellant.

Albert, Bailey & Wallace, Albert B. Wallace, for appellee.

Judgment affirmed.

Miller and Ray, JJ., concur.

       Brougham suggests several times in its brief that the trial court entered “default judgment” in favor of DeLoach. But the trial court clearly did not enter judgment to DeLoach under the default judgment statute, OCGA § 9-11-55. Rather, the trial court granted judgment as a matter of law to DeLoach based on the admissions made by Brougham that effectively removed any genuine issues of material fact from the case.

       At one point during the litigation, DeLoach filed a motion for default judgment on the ground that Brougham’s answer was defective because it too had been filed by a nonlawyer. DeLoach withdrew that motion after Brougham’s newly retained counsel filed an amended answer. In addition to its argument regarding the pretrial order, Brougham argues that by withdrawing his motion for default judgment, DeLoach abandoned any challenge to the responses to his requests for admission and “ambushed” Brougham by then raising the admission issue at trial. Brougham’s argument is without merit. DeLoach’s motion for default judgment clearly addressed Brougham’s answer, not its responses to the requests for admission. As such, the withdrawal of that motion in no way indicated that DeLoach was abandoning any challenge he might choose to bring regarding Brougham’s responses to the requests for admission.


text:
    A13A1253.
    CLARK v. THE STATE.
    (747 SE2d 705)
   BARNES, Presiding Judge.

Charles Clark appeals the denial of his motion for new trial following his conviction for enticing a child for indecent purposes. He contends that the evidence was insufficient to support his conviction. For the reasons discussed below, we affirm.

Clark argues that the State failed to prove the elements of enticement under OCGA § 16-6-5, and thus the evidence does not sustain his conviction. We disagree.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Citations and punctuation omitted.) Brown v. State, 318 Ga. App. 334 (733 SE2d 863) (2012). See also Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

So viewed, the evidence shows that Clark taught swimming at Martin Luther Kang, Jr. Middle School in January 2010, where the 15-year-old victim was an eighth grade student. The victim did not enjoy school, and she often went to her mentor’s office instead of attending her classes. She spent the morning of January 22, 2010, with her mentor and the guidance counselor. After their meeting, the counselor gave the victim a pass to class and asked Clark, who left the office shortly afterward, to make sure that she turned in the direction of her classroom. Instead, Clark overtook the victim in the hall, told her that she had to clean the pool as punishment for skipping class, and accompanied her to the pool area. When she finished, he asked if she wanted to “get out of here,” to which she replied “hell, yeah.” Clark asked her to meet him behind the library so that they would not be seen leaving together.

The victim accompanied Clark to an ATM where he withdrew $160. Clark then paid for a cab, a MARTA train, and a bus to take them to the Fulton Inn. The victim was under the impression that they were going somewhere to drink alcohol and smoke marijuana, which Clark knew she enjoyed. En route, Clark told the victim that when he had seen nude photographs of her that had circulated among teachers at the school he was “like, wow.” When they arrived at the motel, Clark instructed the victim to “sit down and act like a little girl” while he checked in to a room. Once inside, he asked her what she liked to drink, and she requested strawberry Smirnoff and gin. Clark returned from the liquor store with both, and the victim proceeded to drink almost all of the liquor herself. Clark also produced two marijuana cigarettes, which they smoked together. The victim testified that Clark performed oral sex on her and raped her after she was too intoxicated to resist. In an interview with police, Clark admitted to inviting the victim to his motel room, but he denied any sexual contact.

A jury found Clark guilty of enticing a child for indecent purposes and contributing to the delinquency of a minor. It acquitted him of the charges of rape, aggravated child molestation, statutory rape, child molestation, and sexual assault against a person in school.

Clark contends that “the State failed to prove that he committed an act of soliciting, enticing, or taking within the meaning of OCGA § 16-6-5” because he merely released the victim from school, a place that she had voluntarily left because she did not want to be there in the first place. He further asserts that he did not lure her to the Fulton Inn for the purpose of engaging in sexual intercourse, as alleged in the indictment. We are not persuaded.

“A person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.” (Emphasis supplied.) OCGA § 16-6-5 (a). As there is ample evidence that Clark took the victim in a taxi, a train, and a bus to a place for the purpose of indecent acts, it is immaterial whether there is also evidence of enticing, inviting, or persuading the victim to go with him. See Dennis v. State, 158 Ga. App. 142, 142 (2) (279 SE2d 275) (1981).

The crime of enticing a child for indecent purposes in violation of OCGA § 16-6-5 requires the showing of a joint operation of the act of enticing a child and the intention to commit acts of indecency or child molestation. Accordingly, neither the act of enticing a child without the requisite intent nor the intent to commit acts of indecency or child molestation without the requisite act would constitute a crime under OCGA § 16-6-5.

(Citationomitted.) Carolina v. State, 276 Ga. App. 298, 301 (1) (a) (623 SE2d 151) (2005).

“The evidence clearly authorizes a finding that appellant . . . entice [d] the child away from school for the purpose of engaging in sexual intercourse with her. . . . That the child herself may [have] willingly allowed herself to be enticed is of no consequence.” Coker v. State, 164 Ga. App. 493, 494 (1) (297 SE2d 68) (1982). The victim testified that Clark asked her if she wanted to leave school and arranged to meet her by the library, ostensibly so that they could leave school grounds together. He financed their trip across town in a taxi, a train, and a bus. The victim also testified that Clark had been asking about her weekend plans after seeing nude pictures of her. This combined evidence would support a finding that Clark took the victim to the Fulton Inn for the purpose of having sexual intercourse with her.

When construed most strongly in favor of the verdict, the evidence is sufficient for a rational trier of fact to find proof beyond a reasonable doubt of Clark’s guilt.

Decided August 9, 2013.

James C. Bonner, Jr., Tyler R. Conklin, for appellant.

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

Judgment affirmed.

Miller and Ray, JJ., concur.


author: Dillard, Judge.

text:
    A13A1263.
    LEWIS v. THE STATE.
    (747 SE2d 867)
   Dillard, Judge.

In this interlocutory appeal, John Lewis contends that the trial court erred in denying his motion to suppress, arguing that a sheriff’s deputy lacked reasonable, articulable suspicion to justify the traffic stop at issue. For the reasons set forth infra, we agree and reverse the trial court’s denial of Lewis’s motion to suppress.

Construing the evidence in the light most favorable to uphold the trial court’s findings and judgment, the record shows that around 1:00 a.m. on January 2,2011, a deputy of the Twiggs County Sheriff’s Office was dispatched to the area of West Clyde Moore Road in response to a call from an anonymous tipster about a suspicious vehicle driving very slowly in the area. The caller described the vehicle as a red Chevrolet Blazer and provided the license-plate number. Upon identifying a vehicle matching the caller’s description, the deputy observed that the vehicle was traveling at approximately 10 miles per hour, which the deputy described as being suspiciously slow, particularly because the deputy knew that (1) numerous metal thefts had occurred in the area late at night and (2) there was normally no traffic in that area between midnight and 2:00 a.m. And based on this knowledge and the vehicle’s extremely slow speed, the deputy suspected that the driver was “casing” a property. Accordingly, the deputy initiated a traffic stop.

After making contact with the vehicle, the deputy noticed that the driver, Lewis, was disoriented and the two passengers appeared to be very nervous. As a result of this observation, the deputy asked Lewis to exit the vehicle. And after witnessing Lewis struggle to exit the vehicle and become unsteady on his feet, the deputy suspected that he was driving impaired and might possess illegal drugs. The deputy then administered field-sobriety tests and determined that Lewis was a less-safe driver. Eventually, Lewis admitted to the deputy that he had used marijuana, methamphetamine, and MDMA (ecstasy) earlier that day.

The deputy then arrested Lewis for driving under the influence and subsequently searched the vehicle. And as a result of the search, the deputy seized marijuana, needles, and spoons with suspected methamphetamine residue. Additionally, a backup officer called to the scene testified that he detected a strong odor of marijuana coming from the two passengers and the car.

Lewis was thereafter charged with possessing drug-related objects, driving under the influence (drugs), driving under the influence less-safe (drugs), possessing an open container, and possessing less than an ounce of marijuana. Subsequently, he filed a motion to suppress the evidence seized during the traffic stop, arguing that the deputy lacked reasonable, articulable suspicion to conduct the stop. And following a hearing on the matter, the trial court denied the motion but granted a certificate of immediate review. We granted Lewis’s interlocutory application, and this appeal follows.

At the outset, we note that in reviewing a trial court’s decision on a motion to suppress, “we construe the evidence most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility of the witnesses are adopted unless they are clearly erroneous.” Further, because the trial court is the trier of fact, its findings “will not be disturbed if any evidence supports them”; but the court’s application of the law to undisputed facts is reviewed de novo. With these guiding principles in mind, we turn now to Lewis’s sole enumeration of error.

Specifically, Lewis contends that the trial court erred in denying his motion to suppress the evidence seized from his vehicle during the traffic stop because the deputy did not have reasonable, articulable suspicion to authorize the stop. We agree.

To begin with, a brief investigative stop of a vehicle is justified “when an officer has a reasonable and articulable suspicion that the driver or vehicle is subject to seizure for violation of the law.” In this regard, we have held that reasonable and articulable suspicion must be “an objective manifestation that the person stopped is, or is about to be, engaged in criminal activity, and that this determination can only be made after considering the totality of the circumstances.” And in viewing the totality of the circumstances, the officer must be able to point to “specific and articulable facts which, taken together with rational inferences from those facts, provide a particularized and objective basis for suspecting the particular person stopped of criminal activity.”

In the case sub judice, the State maintains that the deputy had reasonable and articulable suspicion to justify the stop based on a concerned citizen’s tip, the slow speed at which Lewis’s vehicle was traveling, and the vehicle’s presence late at night in an area known for recent metal thefts. But these reasons alone do not establish that the deputy had “a particularized and objective basis for suspecting [Lewis] of criminal activity sufficient to justify an investigatory stop.”

First, despite the trial court and State’s characterization of the tip at issue, the fact remains that the tip came from an anonymous individual, not a “concerned citizen,” and tips from informants of unknown reliability ordinarily will not create a sufficient basis to provide reasonable suspicion of criminal activity. Nevertheless, a tip from an anonymous informant or one of unknown reliability may exhibit sufficient indicia of reliability, and thus provide reasonable suspicion of criminal activity, if the tip is detailed enough to provide some basis for “predicting a subject’s ‘not easily predicted’ future behavior, or if it provides other details which police corroborate as showing similar inside information about the subject’s affairs.” And here, the call from the anonymous tipster failed to provide any detail whatsoever to predict Lewis’s future behavior or other details which could be corroborated by the deputy as showing inside information.

Second, the stop was not justified by the deputy’s personal observation of the vehicle driving very slowly late at night in an area known for recent metal theft because even when viewed in the totality of the surrounding circumstances, such conduct does not, in and of itself, constitute reasonable and articulable suspicion of criminal activity. Indeed, Lewis was merely driving slowly through an area recently subject to several thefts, rather than repeatedly passing by a particular property that had been the target of recent crimes. And although the deputy observed conduct which he subjectively believed was consistent with a general pattern of criminal activity, Lewis’s mere presence in an area of recent criminal activity did not give rise to reasonable and articulable suspicion of criminal activity to justify the stop. As we have previously emphasized, “an officer’s feeling that a person is acting in a suspicious way does not amount to a particularized and objective basis for suspecting him of criminal activity.”

Decided August 13, 2013.

Natalie K. Glaser, for appellant.

L. Craig Fraser, District Attorney, LaShonda C. Harris, Assistant District Attorney, for appellee.

Consequently, the “taint” of the illegal stop in this case requires the suppression of the evidence seized from Lewis’s car “as there were no intervening circumstances or events to purge the taint of the illegal stop.” Accordingly, for all of the foregoing reasons, we reverse the trial court’s denial of Lewis’s motion to suppress.

Judgment reversed.

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

        See, e.g., Henson v. State, 314 Ga. App. 152, 153 (723 SE2d 456) (2012).

       Neither the trial court’s order nor the parties’ briefs indicates the speed limit on the road in question or describes the area in which the car was traveling.

        See OCGA § 16-13-32.2 (a).

        See OCGA § 40-6-391 (a) (6).

        See OCGA § 40-6-391 (a) (2).

        See OCGA § 40-6-253 (b) (1) (B).

        See OCGA § 16-13-30 (j) (1).

        Rocha v. State, 317 Ga. App. 863, 866 (733 SE2d 38) (2012) (punctuation omitted).

        Henson, 314 Ga. App. at 154 (punctuation omitted).

        Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

        Hernandez-Lopez v. State, 319 Ga. App. 662, 663 (1) (738 SE2d 116) (2013) (punctuation omitted).

        Id. at 663-64 (1) (punctuation omitted; emphasis supplied).

        Slocum v. State, 267 Ga. App. 337, 337 (599 SE2d 299) (2004) (punctuation omitted).

        Hughes v. State, 269 Ga. 258, 260 (1) (497 SE2d 790) (1998) (punctuation omitted).

        See Register v. State, 315 Ga. App. 776, 778, n. 1 (728 SE2d 292) (2012) (“It is true that ‘when hearsay information is supplied by an identified interested citizen, the citizen’s credibility is not as suspect and the analysis is not as stringent as when information is given by an anonymous tipster; a law-abiding concerned citizen has a built-in credibility and is deemed to be reliable.’ But in this case, the caller was not identified and is therefore considered an anonymous tipster.” (citations omitted)); see also Yearwood v. State, 239 Ga. App. 682, 683 (521 SE2d 689) (1999).

        See Baker v. State, 277 Ga. App. 520, 522 (1) (a) (627 SE2d 145) (2006).

        Id..; see also Register, 315 Ga. App. at 778.

        See Register, 315 Ga. App. at 778 (holding that tip did not justify the stop because it provided no prediction of future behavior or other inside information that could be corroborated by police when an unknown caller provided the tag number, color, and make of the vehicle). But cf. Patton v. State, 287 Ga. App. 18, 20 (650 SE2d 733) (2007) (holding an informant’s tip was sufficient to justify a stop when it predicted some future behavior, in that the defendant arrived at a specified location at a certain time, with a passenger as described, and driving a vehicle matching the description given by the tipster).

        See Hughes, 269 Ga. at 261 (1) (“[Tjhere is no objective manifestation that a person is, or is about to be, engaged in criminal activity merely because the person is a white man in a black neighborhood late at night, who picks up a black man at a location police consider a high-crime area, and who then drives slowly in a circular fashion through the neighborhood.”); Adkinson v. State, 322 Ga. App. 1 (743 SE2d 563) (2013) (holding that officer did not have facts sufficient to give rise to a reasonable suspicion of criminal activity based on the defendant’s presence in a high-crime area and his behavior which was consistent with a general pattern of illegal activity); Baker, 277 Ga. App. at 522-23 (1) (a), (b) (holding that stop was not justified when a police officer received a tip of unknown reliability and observed the vehicle slowly circling around a gas station before making two brief stops at other locations); Thomas v. State, 300 Ga. App. 120, 123 (684 SE2d 290) (2009) (holding that officer did not have reasonable suspicion to justify a stop based on the defendant’s presence at the scene of an abandoned vehicle alleged to be stolen and his slow driving with intermittent stops).

        Cf. Brisbane v. State, 233 Ga. 339, 342-43 (211 SE2d 294) (1974) (holding that officer had reasonable suspicion to justify the stop when a gas station nearby was robbed at gunpoint hours before the officer observed the defendant slowly drive by a different station twice at 3:45 a.m., and station had also been the scene of recent armed robberies).

        See Hughes, 269 Ga. at 261 (1); Adkinson, 322 Ga. App. at 3.

        Ewumi v. State, 315 Ga. App. 656, 661 (1) (727 SE2d 257) (2012) (punctuation omitted).

        Register, 315 Ga. App. at 779.


author: McMillian, Judge.

text:
    A13A1407.
    CHANDLER v. ROHNER.
    (747 SE2d 870)
   McMillian, Judge.

This appeal arises from an attempt by appellant Matthew Steven Chandler to legitimize two minor children that he had with appellee Maxine Marie Gibson Rohner. At the close of an evidentiary hearing, the superior court orally denied the petition for legitimation, but in the written order memorializing that ruling, the superior court took the additional step of terminating Chandler’s parental rights. After the superior court denied Chandler’s motion for new trial, he filed this appeal.

Because this is a legitimation action, the superior court lacked jurisdiction to terminate Chandler’s parental rights. See OCGA § 15-11-28 (a) (2) (C); Alexander v. Guthrie, 216 Ga. App. 460, 462 (2) (454 SE2d 805) (1995) (superior court has jurisdiction to consider termination of the rights of a putative father only in connection with adoption proceedings). See Brine v. Shipp, 291 Ga. 376 (729 SE2d 393) (2012) (in divorce action, superior court lacked jurisdiction to terminate the parental rights of the legal father in connection with allowing the biological father to legitimate the child). “When a trial court enters a judgment where it does not have jurisdiction, such judgment is a mere nullity; but an appeal from such an illegal judgment will not be dismissed but instead, the void judgment will be reversed.” (Citations and punctuation omitted.) In the Interest of A. D. B., 232 Ga. App. 697, 698 (503 SE2d 596) (1998). Therefore, insofar as the superior court purports to terminate Chandler’s parental rights, the judgment and subsequent denial of the motion for new trial are hereby reversed.

Chandler also contends that the superior court erred when it denied his motion for new trial without having held an oral hearing.

[Our Supreme Court] has held that Uniform Superior Court Rule 6.3 requires, unless otherwise ordered by the court, that a motion for new trial in a civil action shall be decided by the trial court only after an oral hearing, even if the moving party does not request such a hearing. Moreover, if the trial court denies a motion for new trial in a civil case without issuing an order excepting the motion from this procedural requirement and without holding the mandatory hearing, the error will not be deemed harmless on appeal; instead, the order denying the motion must be reversed and the case remanded with direction that the trial court comply with Rule 6.3 before disposing of the motion.

(Citations, punctuation and footnote omitted.) Triola v. Triola, 292 Ga. 808, 808 (741 SE2d 650) (2013). See Kuriatnyk v. Kuriatnyk, 286 Ga. 589, 592 (690 SE2d 397) (2010).

In this case, the superior court did not hold an oral hearing before ruling on Chandler’s motion for new trial, nor did the court enter any order excepting the motion from the Rule 6.3 requirements. Accordingly, we must reverse the superior court’s order denying the motion for new trial. Thus, the case is remanded and the superior court is directed to comply with Rule 6.3 before ruling on the remaining issues in Chandler’s motion for new trial. We do not reach Chandler’s remaining enumerations as the issues raised must be asserted in the superior court on remand. Trióla, 292 Ga. at 808.

Decided August 14, 2013.

Hill/MacDonald, Vic B. Hill, Brad E. MacDonald, for appellant.

Diane M. Sternlieb, for appellee.

Judgment reversed and case remanded with direction.

Andrews, P. J., and Dillard, J., concur.

       It does not appear that Rohner sought the termination of Chandler’s parental rights in this proceeding. Rather, Rohner’s current husband had initiated a separate petition for stepparent adoption, which was also pending before the superior court. That petition has been stayed pending the conclusion of this appeal.

       OCGA § 15-11-28 (a) (2) (C) provides:
      (a)... Except as provided in subsection (b) of this Code section, the [juvenile] court shall have exclusive original jurisdiction over juvenile matters and shall be the sole court for initiating action:... (2) Involving any proceedings:... (C) For the termination of the legal parent-child relationship and the rights of the biological father who is not the legal father of the child, other than that in connection with adoption proceedings under Article 1 of Chapter 8 of Title 19, in which the superior courts shall have concurrent jurisdiction to terminate the legal parent-child relationship and the rights of the biological father who is not the legal father of the child.

       Because issues other than those pertaining to the termination of parental rights were raised in this motion, we must address this issue.

       Uniform Superior Court Rule 6.3 provides:
      Unless otherwise ordered by the court, all motions in civil actions, including those for summary judgment, shall be decided by the court without oral hearing, except motions for new trial and motions for judgment notwithstanding the verdict.

       None of the superior court’s orders referenced Rule 6.3 or Chandler’s right to an oral hearing on his motion for new trial.


text:
    A13A1391.
    THAMMASACK v. THE STATE.
    (747 SE2d 877)
   BARNES, Presiding Judge.

Following a stipulated bench trial, the trial court found Jimmy Thammasack guilty of possession of methamphetamine. On appeal, Thammasack contends that the trial court erred in denying his motion to suppress the methamphetamine found in his vehicle. For the reasons set forth below, we affirm.

In reviewing a trial court’s decision on a motion to suppress, we construe the evidence most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility of the witnesses are adopted unless they are clearly erroneous. Further, because the trial court is the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if any evidence supports them. However, when evidence is uncontroverted and no question of witness credibility is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

(Citation and punctuation omitted.) Campbell v. State, 313 Ga. App. 436 (721 SE2d 649) (2011).

Viewed in the light most favorable to the trial court’s ruling, the record shows that on the night of January 23,2012, an officer with the Henry County Police Department was on patrol when he observed Thammasack driving a white Honda Civic in the opposite direction with red headlights engaged. Based on his training, the officer believed that headlights were legally required to emit a white-colored beam, and he considered a vehicle with red headlights to be a safety hazard because other drivers might be confused about the direction the vehicle was traveling. After making a U-turn in the road, the officer began to follow Thammasack’s vehicle and ran a check on the license tag plate number. He learned from the license tag check that the plate number was registered to a black Honda Civic. According to the officer, he becomes concerned whenever a license tag check reveals a discrepancy in the color of the vehicle because “[p]eople will steal tags all the time off similar vehicles and place them on vehicles that are [a] similar make and model.”

The officer activated his blue lights and initiated a traffic stop. Upon approaching the stopped vehicle, the officer explained to Thammasack the basis for the traffic stop, asked him to produce his driver’s license, and inquired why the vehicle had a different color than what was reflected in the license tag check. Thammasack produced a Florida driver’s license and told the officer that he had painted the vehicle. The officer checked Thammasack’s license and discovered that it had been suspended. He arrested Thammasack for driving with a suspended license, and during a subsequent inventory search of the vehicle, discovered half a gram of methamphetamine.

After he was indicted for possession of methamphetamine, Thammasack filed a motion to suppress in which his sole contention was that there was no reasonable basis for the officer to have initiated the traffic stop. He argued that OCGA § 40-8-34, the traffic code section governing the color of headlights, was void for vagueness because it did not give motorists fair warning that headlights cannot be red. According to Thammasack, because OCGA § 40-8-34 was unconstitutionally vague, a traffic stop predicated on a perceived violation of that statute was likewise unconstitutional and required suppression of the evidence seized during the stop. Thammasack further argued that the discrepancy in the color of his vehicle discovered by the officer when he ran a check on the license tag plate number “was not really grounds for the stop” in this case and thus could not provide an alternative basis for the stop of his vehicle.

The State conceded that OCGA § 40-8-34 was void for vagueness for purposes of Thammasack’s motion to suppress but argued that the stop nevertheless was proper under the Fourth Amendment because the officer had an honest belief that a traffic violation had been committed in his presence. The State further argued that the discrepancy in the color of the vehicle discovered by the officer was sufficient by itself to justify the traffic stop.

After conducting an evidentiary hearing in which the officer and Thammasack testified, the trial court found that even if OCGA § 40-8-34 was void for vagueness, the officer had an honest belief that a traffic violation had been committed in his presence when he observed Thammasack driving a vehicle with red headlights. The trial court determined that, in light of the testimony at the hearing, the officer’s stop of the vehicle had been reasonable and not arbitrary or harassing. Accordingly, the trial court denied Thammasack’s motion to suppress.

The case proceeded to a bench trial on stipulated facts, and the trial court found Thammasack guilty of possession of methamphetamine. This appeal followed in which Thammasack’s sole enumeration of error is that the trial court improperly denied his motion to suppress.

We conclude that the trial court committed no error in denying Thammasack’s motion to suppress the methamphetamine. “It is well settled law that before stopping a car, an officer must have specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct.” (Punctuation and footnote omitted.) Christy v. State, 315 Ga. App. 647, 650 (1) (727 SE2d 269) (2012). “[T]he stop of a vehicle is authorized if an officer observes the commission of a traffic offense.” Taylor v. State, 230 Ga. App. 749, 750 (1) (a) (498 SE2d 113) (1998). The State carries the burden of establishing the lawfulness of atraffic stop. Morgan v. State, 309 Ga. App. 740, 741 (710 SE2d 922) (2011).

The State can meet its burden of proving the lawfulness of the traffic stop even if the statute upon which the stop was based is later declared unconstitutional. As our Supreme Court has explained, the fact that the statute creating the traffic offense is subsequently declared unconstitutional “does not, of itself, require suppression of the evidence seized during the traffic stop.” Ciak v. State, 278 Ga. 27, 30 (2) (597 SE2d 392) (2004). See Christy, 315 Ga. App. at 651 (1). This is because

[pjolice are charged to enforce laws until and unless they are declared unconstitutional. The enactment of a law forecloses speculation by enforcement officers concerning its constitutionality — with the possible exception of a law so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws. Society would be ill-served if its police officers took it upon themselves to determine which laws are and which laws are not constitutionally entitled to enforcement.

Ciak, 278 Ga. at 29 (2), quoting Michigan v. DeFillippo, 443 U. S. 31, 38 (99 SCt 2627, 61 LE2d 343) (1979).

Furthermore, we have repeatedly held that

[ajlthough an officer’s honest belief that a traffic violation has actually been committed in his presence may ultimately prove to be incorrect, such a mistaken-but-honest belief may nevertheless demonstrate the existence of at least an articulable suspicion and reasonable grounds for the stop.

(Citation and punctuation omitted.) State v. Webb, 193 Ga. App. 2, 4 (1) (386 SE2d 891) (1989). See Stinson v. State, 318 Ga. App. 351, 354 (1) (733 SE2d 390) (2012). In judging an officer’s honest belief that a traffic violation occurred in his presence, courts must determine “whether the officer’s motives and actions at the time and under all the circumstances, including the nature of the officer’s mistake, if any, were reasonable and not arbitrary or harassing.” (Citation and punctuation omitted.) Stinson, 318 Ga. App. at 354 (1).

Applying these principles to the case-at-hand, we conclude that the trial court was authorized to find that the officer had reasonable articulable suspicion for stopping Thammasack’s vehicle. Even if OCGA § 40-8-34 were deemed void for vagueness and thus unconstitutional, the officer was confronted with red headlights that, based on his training and experience, he believed constituted a traffic violation and which he thought were confusing and dangerous to other drivers. Under these circumstances, there was evidence from which the trial court could find that the officer’s stop was reasonable and not arbitrary and harassing. Accordingly, the trial court was entitled to uphold the traffic stop. Indeed, “[n]o purpose of deterrence would be served by suppressing the evidence found in this case, which was the product of a stop prompted by the officer’s legitimate concern for public safety.” (Citation and punctuation omitted.) State v. Hammang, 249 Ga. App. 811 (549 SE2d 440) (2001) (officer’s honest but mistaken belief that defendant had violated traffic law by driving without headlights on through poorly lit intersection when it was “almost dark outside” provided reasonable articulable suspicion for traffic stop).

Decided August 16, 2013.

Gerald P. Privin, for appellant.

James L. Wright III, District Attorney, for appellee.

In any event, the record also reflects that, separate and apart from the issue of the red headlights, the officer stopped Thammasack’s vehicle after discovering a discrepancy in the color of the vehicle when he ran a check on the license tag plate number. In Andrews v. State, 289 Ga. App. 679, 680-681 (658 SE2d 126) (2008), we held that an officer has reasonable articulable suspicion to stop a vehicle when a routine computer license tag check reveals that the vehicle is a different color than listed on the registration, because it would be reasonable for the officer to infer that the license plate may have been illegally switched from another vehicle. We further held that the fact that the officer ultimately learns through his investigation after pulling over the vehicle that the license plate had not been improperly switched “does not change the result.” Id. at 681. Accordingly, in light of Andrews, we conclude that the officer was authorized to stop Thammasack’s vehicle because of the color discrepancy revealed from running the license tag check, and we affirm the trial court’s denial of the motion to suppress on that alternative ground as well. See Worsham v. State, 251 Ga. App. 774, 775-776 (554 SE2d 805) (2001) (even if officer’s mistaken belief that driver had violated motor vehicle registration law was unreasonable, officer nonetheless was authorized to conduct traffic stop after observing driver violate another traffic law by failing to maintain his lane).

Judgment affirmed.

Miller and Ray, JJ., concur.

       OCGA § 40-8-34 provides: “The color in all lighting equipment covered in this title shall be in accordance with Society of Automotive Engineers (SAE) Standard J578, April, 1965, as thereafter revised or amended.”

       The Supreme Court of Georgia has exclusive jurisdiction over “all cases in which the constitutionality of a law... has been drawn in question.” Ga. Const. of 1983, Art. VI, Sec. VT, Par. II (1). See Lewis v. State, 292 Ga. App. 257, 268 (3) (b), n. 11 (663 SE2d 721) (2008) (Court of Appeals lacks jurisdiction to address constitutional challenge to statute). However, the constitutional question of whether OCGA § 40-8-34 is void for vagueness need not be resolved in this case because, as we explain above, the traffic stop was valid irrespective of whether OCGA § 40-8-34 is declared unconstitutional.