text:
    A16A0463.
    TAYLOR v. THE STATE.
    (788 SE2d 97)
   Peterson, Judge.

Following a jury trial, Joshua Taylor was convicted of homicide by vehicle in the first degree, driving without a valid license, and operating a vehicle without a current registration. Taylor appeals from the denial of his motion for new trial and argues that (1) the trial court erred in denying his motion to suppress the results of a chemical test, (2) the evidence was insufficient to sustain his convictions, (3) the trial court erred in qualifying a witness as an expert, and (4) he received ineffective assistance of counsel. We reverse Taylor’s convictions for driving without a valid license and operation of a vehicle without a current registration because trial counsel was ineffective in failing to object to hearsay evidence that was the only evidence supporting these charges. We affirm Taylor’s conviction for vehicular homicide because the trial court did not err in denying his motion to suppress or in qualifying the witness as an expert, the evidence was sufficient to support his convictions, and trial counsel’s performance on other issues did not constitute ineffective assistance.

“On appeal, the evidence must be viewed in the light most favorable to support the verdict, and the appellant no longer enjoys a presumption of innocence.” Culver v. State, 230 Ga. App. 224, 224 (496 SE2d 292) (1998) (citation omitted). So viewed, the evidence shows that around 2:00 a.m. on July 17, 2012, Laquilla Oglesby was driving her uncle, Keith Thompson, south on 1-85 in Atlanta. Oglesby and Thompson saw a black Jeep driven by Ronnie Bascom, the victim, swerve and crash into a guardrail near exit 84, and the vehicle came to a rest on the exit ramp. Oglesby stopped her car to render assistance to Bascom, who had staggered out of his vehicle. A passerby asked if Oglesby and Bascom were okay, and Oglesby asked the passerby to call the police. While they waited for police to arrive, Oglesby stood by Bascom near the driver’s side door of his car. Meanwhile, because the area was not illuminated, Thompson began waving a light in order to alert oncoming traffic. Most of the cars exiting the off-ramp slowed down and were able to move around Bascom’s crashed vehicle.

One car, driven by Joshua Taylor, did not slow down. Taylor was driving far faster than the rest of the traffic. While Oglesby was talking to Bascom, she saw the headlights of Taylor’s car quickly approaching and she ran out of the way. Oglesby did not see what happened to Bascom, but she saw that Taylor’s car had hit a concrete barrier and had caught on fire.

Shortly thereafter, police officers arrived at the scene and observed that Taylor’s car was on fire and that he was sitting in the driver’s seat. After police officers pulled Taylor out of his car, they observed that his speech was slurred, he smelled of alcohol, and appeared to be extremely intoxicated. Taylor told police officers that his friend was driving and gave multiple names for his friend, but the officers did not find anyone in the vicinity that matched Taylor’s description of his friend. The officers did find Bascom lying in the grass median, and Bascom was not conscious or breathing. Bascom died as the result of blunt force trauma to the head and neck, and the medical examiner explained that the force of the impact was so great that the ligaments connecting Bascom’s head to his neck were ruptured.

As a result of the fatality, Officer Christopher Hewitt, head of the Traffic Fatality Investigations Unit with the Atlanta Police Department, was dispatched. Officer Hewitt sent investigators to the scene while he went to Grady Hospital, where Taylor had been sent. When Officer Hewitt arrived at Grady, Taylor was conscious and lying on a gurney in the trauma bay. Officer Hewitt questioned Taylor about the accident. Officer Hewitt did not tell Taylor that he was under arrest, and Taylor appeared to understand everything that was happening. During his conversation with Officer Hewitt, Taylor admitted that he had three beers and several shots. Officer Hewitt observed that Taylor had slurred speech, his eyes were glassy and bloodshot, he smelled of alcohol, and he had ligature marks from his left shoulder down across his chest, which was consistent with a seat-belt burn.

Based on Officer Hewitt’s observations and Taylor’s admissions, Taylor was placed under arrest. A police officer read the implied consent notice to Taylor, and he refused to submit to chemical testing. Almost three hours after the accident, Officer Hewitt applied for and obtained a search warrant to collect a blood sample. The results of the chemical test of Taylor’s blood revealed that he had a blood-alcohol concentration of 0.196 and tested positive for the presence of marijuana, cocaine, and Xanax. Officer Hewitt testified that, in completing the search warrant application, he conducted a computer check of Taylor’s driver’s license and discovered that his license had been suspended. Officer Hewitt also testified that the vehicle registration on Taylor’s car had expired.

1. Taylor argues that the trial court erred under Franks v. Delaware, 438 U.S. 154 (98 S. Ct. 2674, 57 LE2d 667) (1978), in denying his motion to suppress the results of the chemical test of his blood because the search warrant contained numerous false statements and the truthful portions of the warrant affidavit did not establish probable cause. We disagree.

Under Franks, if a defendant shows by a preponderance of the evidence that the search warrant affiant knowingly and intentionally, or with reckless disregard for the truth, makes a false statement in the affidavit, then the affidavit’s false material must be set aside. State v. Hall, 276 Ga. App. 769, 772 (624 SE2d 298) (2005). The affidavit’s remaining content must be re-examined and if that content is insufficient to establish probable cause, “the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.” Id. (citation and punctuation omitted).

In this case, the record shows that Officer Hewitt made several false statements in his warrant affidavit. He stated that Taylor was in the county jail at the time the application was made, but Taylor was actually at Grady Hospital. He said Taylor refused to submit to field sobriety tests and refused to provide a sample of his breath, but no such test or breath samples were requested. Officer Hewitt also stated that he initiated a traffic stop of Taylor’s vehicle, but no officer made a traffic stop.

Officer Hewitt testified that the misstatements were unintentional and were attributable to his inability to change certain fields in the computer program he used to prepare the warrant application. The trial court believed Officer Hewitt that the false statements were unintentional, but it did not consider whether the statements were made with a reckless disregard for the truth.

We need not — and thus do not — decide whether any of these false statements were made knowingly and intentionally or with reckless disregard for the truth, because the rest of the information contained in the affidavit — which Taylor does not challenge — establishes probable cause to believe Taylor was driving while impaired. Specifically, Officer Hewitt swore that there was evidence showing that Taylor was the driver of a 2008 Saturn that had been involved in an automobile accident in which an unidentified black male (Bascom) had been killed. Officer Hewitt also swore that while being interviewed at Grady Hospital, Taylor had admitted to drinking earlier that night. These circumstances alone were sufficient for a reasonable officer to conclude that Taylor had been driving under the influence and, thus, the magistrate had probable cause to issue the search warrant. See Hughes v. State, 296 Ga. 744, 750 (2) (770 SE2d 636) (2015) (officers had probable cause to believe that defendant was under the influence of some intoxicant when they had reason to believe he caused a fatal accident and he had a number of unknown pills on his person).

Although we are able to conclude that the warrant affidavit established probable cause without the false statements, we must pause to observe the problematic nature of the warrant application process involved in this case. The magistrate judge issued a warrant based on an application containing numerous demonstrably false statements. The State places blame for the false statements on the software program used. If this is true, then the continuing use of a software program that automatically inserts false statements into the warrant applications of one of the largest law enforcement agencies in this state is, to say the least, deeply troubling. And regardless of what caused false statements to be present in the affidavit, an officer still swore that the contents of the affidavit were true and presented the application as such to a magistrate judge. It should not have to be said that individuals presenting testimony to a court have a duty of candor, or that individuals making statements under oath should take great care to make sure those statements are truthful. Unfortunately, we are compelled to say what should be obvious because not enough care was taken in this case, and because the flaws displayed in this warrant application process seriously undermines the integrity of the judicial process. Despite these flaws, the warrant application still had sufficient information to establish probable cause, and therefore we are required to conclude that the trial court did not err in denying Taylor’s motion to suppress.

2. Taylor argues that the evidence was insufficient to support his convictions. We disagree.

When we review challenges to the sufficiency of the evidence, 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.” Otuwa v. State, 319 Ga. App. 339, 339-40 (734 SE2d 273) (2012) (citing Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 LE2d 560) (1979)).

(a) Vehicular homicide

Taylor was convicted of vehicular homicide in the first degree for causing Bascom’s death by violating the DUI statute. See OCGA § 40-6-393(a) (defining first degree vehicular homicide as causing “the death of another person” by violating statutes including OCGA § 40-6-391, the DUI statute). Taylor argues that his conviction must be reversed because no witness actually saw him crash into Bascom or Bascom’s car. We disagree.

Although there is no testimony from any eyewitness that he or she saw Taylor strike Bascom or his car, the circumstantial evidence was more than sufficient to authorize the conclusion that Taylor hit Bascom. A conviction based upon circumstantial evidence is authorized only when the proven facts are not only consistent with the hypothesis of guilt, but also exclude every other reasonable hypothesis save that of the guilt of the accused. See OCGA § 24-14-6. Whether a hypothesis is reasonable and whether every other hypothesis except the guilt of the accused has been excluded are generally questions for the jury to decide, because the jury is able to assess the evidence, observe the credibility of witnesses, and judge the reasonableness of hypotheses raised by the evidence. See Blevins v. State, 291 Ga. 814, 816 (733 SE2d 744) (2012); Nangreave v. State, 318 Ga. App. 437, 439 (1) (734 SE2d 203) (2012). We will not disturb a jury’s findings unless they are unsupportable as a matter of law. Nangreave, 318 Ga. App. at 439 (1).

Here, it is undisputed that Taylor was in the driver’s seat of a vehicle that Oglesby and Thompson saw on fire after hitting a concrete barrier. It is also undisputed that, more than three hours after the accident, Taylor had a BAC level of 0.196, more than twice the legal limit of 0.08, and his blood also tested positive for the presence of marijuana, cocaine, and Xanax. This evidence was sufficient to establish the predicate DUI offense. OCGA § 40-6-391(a)(5); Griffin v. State, 242 Ga. App. 878, 880 (1) (531 SE2d 752) (2000).

The evidence viewed in the light most favorable to the verdict also leads to the strong inference that Taylor, while driving under the influence, killed Bascom with his vehicle. Bascom was seen standing next to his vehicle immediately before Taylor’s vehicle approached the area at a high rate of speed. Oglesby, who had been standing near Bascom, was able to get safely out of the way of Taylor’s vehicle. Bascom, on the other hand, was immediately thereafter found dead in a nearby grassy field with massive blunt force trauma. There is no evidence that another car (or anything else) struck Bascom while he was alive with such force as to kill him. Although Taylor’s accident reconstruction expert testified that it was “impossible” for Taylor to have crashed into Bascom or Bascom’s car based on the type of damage to Taylor’s car, it was for the jury, not this Court, to resolve questions of reasonableness and determine witness credibility Nangreave, 318 Ga. App. at 439 (1). Given the evidence cited above, we cannot say that the jury’s finding that Taylor struck Bascom was unsupportable as a matter of law, and therefore we affirm Taylor’s conviction for vehicular homicide. See Dobson v. State, 222 Ga. App. 331, 332 (474 SE2d 630) (1996); Mote v. State, 212 Ga. App. 551, 552-53 (1) (442 SE2d 799) (1994).

(b) Driving without a valid license and registration

Taylor was charged with violating OCGA § 40-5-20 for driving without a license and OCGA § 40-2-20 for operating a vehicle without current registration. Because we reverse these convictions due to trial counsel’s ineffectiveness, as further explained in Division 4(b) (i), we do not evaluate the sufficiency of the evidence.

3. Taylor argues that the trial court erred in admitting Officer Hewitt as an expert in accident reconstruction because he was not an engineer, had not been previously qualified as an expert, did not prepare any reports or maps in this case, and relied on evidence obtained from other officers.

Under the new Evidence Code, “[i]n criminal proceedings, the opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions maybe given on the facts as proved by other witnesses.” OCGA § 24-7-707. This provision is virtually identical to former OCGA § 24-9-67; the only difference is the word “proceedings,” which replaced the word “cases As a result, we may rely on Georgia decisions interpreting the former Code. OCGA § 24-1-2(e); see also Bradshaw v. State, 296 Ga. 650, 654 (2) (769 SE2d 892) (2015) (giving new accomplice testimony provision same meaning as old one in the “light of the nearly identical language of the accomplice provisions in the old and new Evidence Codes”).

Under the old Evidence Code, “[t]o qualify as an expert, generally all that is required is that a person must have been educated in a particular skill or profession; his special knowledge may be derived from experience as well as study. Formal education in the subject at hand is not a prerequisite for expert status.” Billings v. State, 293 Ga. 99, 104-05 (5) (745 SE2d 583) (2013) (citation and punctuation omitted). We review the trial court’s ruling on this issue for an abuse of discretion. Id.

Here, Officer Hewitt testified that he was in command of the Traffic Fatality Investigations Unit, had received hundreds of hours of training that included on-scene accident investigations and accident reconstruction, and had investigated “[sjeveral hundred, if not a thousand” vehicular accidents. Officer Hewitt further stated that he had applied his accident reconstruction training in subsequent accident investigations and had provided testimony on the issue about a dozen times. Based on this evidence, the trial court did not abuse its discretion in qualifying Officer Hewitt as an expert. See Epps v. State, 169 Ga. App. 157, 159-60 (4) (312 SE2d 146) (1983) (trial court did not abuse its discretion in admitting police officer as expert in accident reconstruction where officer had attended courses on the topic and had investigated over 200 automobile accidents). Cf. Billings, 293 Ga. at 105 (5) (had defense counsel objected to witness’s qualifications as an expert, trial court would have been within its discretion to overrule objection in the light of witness’s certification and many years of investigating crime scenes).

4. Taylor argues that trial counsel rendered ineffective assistance of counsel in several respects. To prevail on his claim, Taylor “must show that trial counsel’s performance fell below a reasonable standard of conduct and that there existed a reasonable probability that the outcome of the case would have been different had it not been for counsel’s deficient performance.” Scott v. State, 290 Ga. 883, 889 (7) (725 SE2d 305) (2012) (citing Strickland v. Washington, 466 U.S. 668 (104 S.Ct. 2052, 80 LE2d 674) (1984)). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, we do not have to examine the other prong. Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004). “In reviewing a claim of ineffective assistance, we give deference to the trial court’s factual findings and credibility determinations unless clearly erroneous, but we review a trial court’s legal conclusions de novo.” Grant v. State, 295 Ga. 126, 130 (5) (757 SE2d 831) (2014) (citation omitted).

(a) Taylor argues that trial counsel was ineffective for withdrawing challenges to the admissibility of Taylor’s statements to police and for failing to object to testimony about Taylor’s statements.

“Whether to file pretrial motions and how to argue them are strategic decisions, and when reasonable in the context of the case, do not constitute error.” Stroud v. State, 272 Ga. 76, 78 (4) (526 SE2d 344) (2000). To establish that trial counsel was ineffective for failing to move to suppress evidence, an appellant is required to make a “strong showing that the evidence would have been suppressed had a motion to suppress been filed.” Stanley v. State, 283 Ga. 36, 39 (2) (a) (656 SE2d 806) (2008) (citation and punctuation omitted).

(i) Withdrawing motion to suppress

Prior to trial, trial counsel sought to exclude any statements made by Taylor at the hospital because he was allegedly in custody and was not read his Miranda rights. Trial counsel later withdrew his motion to suppress because he did not believe “the evidence supported] afindingthat [Taylor] was in custody, as required by Miranda.” Trial counsel’s assessment was correct.

“The necessity of administering Miranda warnings exists only when the individual is interrogated while in custody.” Jenkins v. State, 219 Ga. App. 339, 340 (1) (465 SE2d 296) (1995) (citation and punctuation omitted). Miranda warnings are required when a person “is (1) formally arrested or (2) restrained to the degree associated with a formal arrest.” Tolliver v. State, 273 Ga. 785, 786 (546 SE2d 525) (2001) (citations omitted). Miranda warnings are not necessary unless a reasonable person in the suspect’s situation would perceive that he was in custody Id.

Taylor argues that he was effectively restrained because he was on a gurney in the trauma bay However, Officer Hewitt testified that he had not placed Taylor under arrest at the time, and no one told Taylor that he was under arrest. Officer Hewitt stated that Taylor was free to go pending a medical release. The fact that Taylor was on a gurney in the trauma bay shows that he had not been released from the hospital, and that he was not isolated by the police for questioning. Further, Officer Hewitt testified that he went to interview Taylor at the hospital to obtain some information about how the accident occurred.

These circumstances are similar to those in Robinson v. State, 278 Ga. 299, 301-02 (2) (602 SE2d 574) (2004), where our Supreme Court held that the defendant was not in custody for purposes of Miranda where, among other things, the defendant had not been medically released by the hospital, the questioning related to how the defendant ended up at the hospital, and the police officers did not isolate the defendant during questioning. Following the reasoning of Robinson, we similarly conclude that the evidence establishes that Taylor was not in custody and, as a result, Miranda warnings were not required. As a result, trial counsel was not ineffective for withdrawing the motion to suppress because the motion would not have been granted.

(ii) Failure to move to suppress statements made at accident

Although counsel made and then withdrew his motion to suppress statements made at the hospital, counsel made no motion to suppress statements made at the scene of the accident. Taylor complains that statements he made at the scene — that he was not driving the vehicle and that another friend had been driving — were not freely and voluntarily given because he had been involved in a major accident and was incoherent. However, the fact that Taylor may have been in pain or was intoxicated did not render his statements involuntary. See Jones v. State, 285 Ga. 328, 329 (2) (676 SE2d 225) (2009); Myers v. State, 275 Ga. 709, 713 (3) (572 SE2d 606) (2002). Taylor points to no other circumstances showing that, even if he was in pain and intoxicated, his statements “were not the product of rational intellect and free will.” Jones, 285 Ga. at 330 (2). Because Taylor has not shown that the statements he made at the accident scene were inadmissible, trial counsel was not ineffective for failing to move to suppress this evidence.

(iii) Failure to move to suppress statements made after Taylor’s arrest

Taylor argues that trial counsel was ineffective for failing to object to Officer Hewitt’s testimony about statements Taylor made after his arrest and about his refusal to submit to a chemical testing of his blood because Miranda warnings had not been provided. We disagree.

Taylor’s statements denying that he was driving the vehicle were not made in response to any form of questioning or interrogation. The record shows that Taylor first denied driving the vehicle in response to being told he was under arrest, and he repeated the statement after the officers told him that no one else was in the vehicle at the time he was pulled from it. Because Taylor’s voluntary and spontaneous statements were not made in response to an interrogation, custodial or otherwise, the failure to give Miranda warnings did not render his statements inadmissible. See Tennyson v. State, 282 Ga. 92, 93 (3) (646 SE2d 219) (2007); Jenkins, 219 Ga. App. at 340 (1).

Miranda warnings were also not a prerequisite to the admission of evidence that Taylor refused to submit to a chemical test. In State v. Coe, 243 Ga. App. 232, 234 (2) (533 SE2d 104) (2000), this Court ruled that “an arrestee is not, under Georgia constitutional or statutory law, entitled to Miranda warnings before deciding whether to submit to the State’s request for an additional test of breath, blood, or urine.” (emphasis omitted). Taylor recognizes this precedent, but urges us to overrule it. We decline to do so, especially in the light of the express statutory authority providing that a defendant’s refusal to submit to a chemical testing of his blood, breath, urine, or other bodily substance shall be admissible evidence at his trial. OCGA § 40-6-392 (d). Because the complained-of evidence was admissible despite any lack of Miranda warnings, trial counsel was not ineffective for failing to object to Officer Hewitt’s testimony.

(b) Taylor argues that trial counsel was ineffective in several respects when Officer Hewitt testified about securing a search warrant to obtain a blood sample from Taylor. Specifically, Taylor argues that trial counsel should have objected to the admission of the search warrant into evidence, to the reading of the search warrant affidavit, and to hearsay testimony regarding the status of Taylor’s driver’s license and registration.

The challenged testimony occurred when the State sought to admit into evidence the search warrant and supporting affidavit. Trial counsel initially stated that he had no objection, but when the trial court reminded him that he had previously voiced an objection to the admissibility of the affidavit, trial counsel stated, “Yes, Your Honor. I’m sorry. With apologies, I do object to admission of that[.]” Trial counsel did not specify the basis for his objection, and the trial court overruled the objection. The State then questioned Officer Hewitt about whether the search warrant revealed any information about Taylor’s driver’s license. Officer Hewitt testified that Taylor had a Georgia driver’s license, but he could not recall whether it was current. The State then attempted to refresh Officer Hewitt’s memory as to the status of Taylor’s license with a report prepared by another police officer, and trial counsel objected on foundation grounds. The trial court overruled trial counsel’s objection, and after viewing the presented document, Officer Hewitt clarified that Taylor had a New York driver’s license that he believed was suspended. Officer Hewitt then used that report again to refresh his recollection and testified that Taylor’s vehicle had an expired registration tag. The State then asked Officer Hewitt to read section 5 of his affidavit, which included facts the officer provided to the magistrate judge. Trial counsel again objected on foundation grounds, but withdrew the objection when the court assured him that the search warrant and the affidavit would not go out with the jury during its deliberations. Reading from the affidavit, Officer Hewitt testified:

On July 17, 2012, Joshua S. Taylor of [address omitted] was operating a 2008 Saturn on Interstate 85, southbound at the 17th Street ramp. That while in control of the vehicle, Taylor struck and killed a black male that is currently unidentified at the time of this application who had also been involved in a separate auto accident. While being interviewed at Grady Hospital, Taylor stated that he had gone out to party with friends after he got off work at 2130. Taylor stated that he had been drinking and stated — started drinking at 2330 hours. Taylor statedthat he had at least 3-4 shots of hard liquor, 2-3 beers, and a lemon drop. Evidence also shows that Taylor was the driver, as evident by the seat belt abrasions that started at the left shoulder and proceeded down, across the chest, to the right waist area.

The State questioned Officer Hewitt about some of the errors contained in the affidavit, which are discussed above in Division 1, but no other portions of the search warrant or supporting application were read to the jury.

(i) Taylor argues that trial counsel was ineffective for failing to object to Officer Hewitt’s testimony about the status of Taylor’s driver’s license and vehicle registration because it constituted hearsay and because the State was required to meet the procedural requirements of OCGA §§ 24-9-902 and 24-9-920 to present proof of the traffic violations. We agree.

Officer Hewitt’s testimony that Taylor’s driver’s license was suspended and that his vehicle registration was expired relied on his checks of a computer system or statements made by other police officers. When an officer testifies about the results of a computer check of a registration tag or driver’s license, the testimony is hearsay OCGA § 24-8-801(c) (“ ‘Hearsay’ means a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”); see also Byrd v. State, 325 Ga. App. 24, 26 (1) (752 SE2d 84) (2013) (testimony about results of computer check on vehicle tag was hearsay); Nichols v. State, 133 Ga. App. 717, 717 (1) (213 SE2d 20) (1975) (testimony of driver’s license check was hearsay).

In order for hearsay to be admissible, it must fall within one of the statutory hearsay exceptions, and the moving party has the burden of establishing that one of the exceptions applies. See Phillips v. State, 275 Ga. 595, 598 (4) (571 SE2d 361) (2002). The State has not identified such an exception. The other police officer’s report that Officer Hewitt relied upon does not qualify as a business record. See generally OCGA § 24-8-803 (providing for a “public records” exception to the hearsay rule, but excluding in subsection (8)(B), “against the accused in criminal proceedings, matters observed by police officers and other law enforcement personnel in connection with an investigation [.] ”).

A witness’s testimony about driving records maybe admissible if the information is obtained from a terminal lawfully connected to the Georgia Crime Information Center. See OCGA § 24-9-924(a) (permitting the admission of information “obtained from any terminal lawfully connected to the Georgia Crime Information Center without the need for additional certification of such records”). However, the State offered no such proof, and thus Officer Hewitt’s testimony about Taylor’s driving record was inadmissible. See Byrd, 325 Ga.App. at 26 (1) (“The proper method of offering proof on th[e] issue [of an expired tag] would have been through the introduction of a properly authenticated printout of the computer record rather than by the officer’s testimony alone.”) (citation and punctuation omitted).

Although the decision of whether to interpose certain objections is generally a matter of trial strategy and tactics, see Abernathy v. State, 299 Ga.App. 897, 903 (3) (a) (685 SE2d 734) (2009), trial counsel provided no reason for failing to object to Officer Hewitt’s hearsay testimony about Taylor’s license and vehicle registration. In assessing the objective reasonableness of a lawyer’s performance, we are not limited to the subjective reasons offered by trial counsel for his conduct. Hurt v. State, 298 Ga. 51, 57 (3) (b) (779 SE2d 313) (2015). Instead, we consider whether “a reasonable lawyer might have done what the actual lawyer did — whether for the same reasons given by the actual lawyer or different reasons entirely”; if the answer to that question is yes, then the “actual lawyer cannot be said to have performed in an objectively unreasonable way.” Id. (citation omitted). In this case, we cannot identify any reason why a reasonable attorney would have decided not to object to the hearsay testimony that provided the only evidentiary basis for a conviction of the traffic offenses. As a result, trial counsel was deficient for failing to object to Officer Hewitt’s hearsay testimony.

The prejudice from trial counsel’s deficiency is clear. Officer Hewitt’s hearsay testimony was the only evidence offered to prove the elements of the traffic offenses. Had this evidence been excluded, there would not have been sufficient evidence to convict Taylor of those offenses. Cf. Williams v. State, 336 Ga.App. 442, 449 (4) (a) (784 SE2d 808) (2016) (a police officer’s conclusory trial testimony that “running” the defendant’s license revealed that the defendant’s driving “privilege in Georgia was not valid,” was insufficient to support a conviction under OCGA § 40-5-20); Christian v. State, 329 Ga. App. 244, 249 (2) (764 SE2d 573) (2014) (inadmissible hearsay was the only evidence establishing the driving offenses and was, therefore, insufficient to support convictions for those offenses). Thus, but for counsel’s performance, more than a reasonable probability exists that the outcome of the trial would have been different, and this amounted to ineffective assistance of counsel. See Hall v. Wheeling, 282 Ga. 86, 87 (1) (646 SE2d 236) (2007). Accordingly, we reverse the trial court’s denial of Taylor’s motion for a new trial with respect to the two misdemeanor traffic violations.

(ii) Taylor next argues that trial counsel was ineffective for failing to object to the admission of the search warrant into evidence because it bolstered Officer Hewitt’s testimony, the reading of the warrant affidavit went to the ultimate issue, and the testimony violated his rights to confrontation. Because we have already determined that Taylor deserves a new trial with respect to the misdemeanor traffic offenses, any remaining discussion of Taylor’s ineffectiveness claims is limited to the vehicular homicide conviction.

Regardless of whether trial counsel was deficient for failing to object to the admission and publication of the search warrant and affidavit, Taylor must also show that counsel’s performance so prejudiced him that there is a reasonable probability the outcome of trial would have been different, but for counsel’s error. Taylor has not met this burden.

Taylor concedes that Officer Hewitt’s testimony about the contents of the warrant and affidavit was consistent with the officer’s prior testimony. Officer Hewitt’s testimony about the warrant was not only consistent with his prior testimony, but was largely cumulative of other trial testimony that Taylor was the driver of a vehicle that was involved in a fatal car accident and cumulative of Officer Hewitt’s testimony that Taylor admitted to drinking the night of the car accident.

Taylor argues that the reading of the warrant affidavit improperly vouched for Officer Hewitt’s prior testimony. However, Officer Hewitt admitted that there were several false statements in the warrant affidavit. Thus, rather than bolstering his testimony, the warrant affidavit presented the jury with a possible basis for doubting Officer Hewitt’s credibility

Taylor also argues that Officer Hewitt’s reading of the affidavit included an expression on ultimate issues that should have been reserved for the jury — whether he drove a vehicle that struck and killed Bascom. But he cannot show prejudice in the light of the strong evidence showing that he drove a vehicle that struck and killed Bascom. The evidence from eyewitnesses showed that Bascom was alive just before another vehicle approached him at a high rate of speed, that vehicle hit a barrier and caught fire, Taylor was pulled from the driver’s seat of that burning vehicle, and Bascom was dead when he was found soon after the accident.

Decided June 21, 2016.

Bruce S. Harvey, Jennifer S. Hanson, for appellant.

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

Because Officer Hewitt’s testimony about the search warrant was cumulative of other evidence and Taylor has not otherwise shown a reasonable probability that the outcome of the trial would have been different had the testimony been excluded, trial counsel was not ineffective. See Williams v. State, 292 Ga. 844, 848 (3) (a) (742 SE2d 445) (2013) (no prejudice from counsel’s failure to object to certain testimony that was cumulative of other testimony to a large extent); Columbus v. State, 270 Ga. 658, 664 (2) (g) (513 SE2d 498) (1999) (trial counsel not ineffective because there was no reasonable probability that the result of the trial would have been different, had the ultimate issue testimony been excluded).

(c) Taylor also argues that trial counsel was ineffective for failing to object to Officer Hewitt’s expert opinion testimony, because Officer Hewitt’s opinion was not based on personal knowledge and was based on an inadequate investigation. Although Taylor asked trial counsel at the motion for new trial hearing about the fact that Officer Hewitt’s expert opinion was based on the reports of other police officers, Taylor did not specifically ask trial counsel about the failure to object to the expert opinion testimony on this or any other ground. “In the absence of testimony to the contrary, counsel’s actions are presumed strategic. And declining to object to testimony can be considered reasonable trial strategy” Brown v. State, 280 Ga. App. 884, 889 (5) (635 SE2d 240) (2006) (footnotes omitted). Because Taylor did not ask trial counsel about his failure to object to Officer Hewitt’s expert testimony, he has failed to establish that trial counsel’s failure was anything other than trial tactics. Moreover, Taylor’s challenges to Officer Hewitt’s expert opinion based on a lack of personal knowledge and insufficient investigation go to the weight and credibility, not admissibility, of the testimony See Layfield v. Dept. of Transp., 280 Ga. 848, 851 (632 SE2d 135) (2006); Cox v. Allen, 256 Ga. App. 53, 57 (567 SE2d 363) (2002). Counsel’s failure to make a meritless objection cannot constitute evidence of ineffective assistance. Porter v. State, 292 Ga. 292, 294 (3) (a) (736 SE2d 409) (2013). Thus, Taylor’s ineffectiveness claim fails.

Judgment affirmed in part and reversed in part.

Phipps, P. J., and Dillard, J., concur.

       Officer Hewitt explained that computer program had certain fields that automatically populated and could not be changed. For instance, Officer Hewitt testified that the computer program automatically populated the jail’s address when Officer Hewitt correctly typed that Taylor was in custody, and Officer Hewitt could not correct it to reflect that Taylor was in custody at Grady Hospital. Additionally, although Officer Hewitt checked the field that indicated that Taylor refused field sobriety tests, instead of the field indicating that Taylor agreed to complete such tests, Officer Hewitt specifically stated in his affidavit that field tests were not conducted because Taylor was transported from the scene by ambulance.

       At oral argument, there was much discussion about the State’s representation that there was eyewitness testimony that Taylor struck Bascom or his car. The State filed a supplemental brief to support its assertion that direct testimony established this fact. However, the State failed to provide a record citation to support its argument that Frank Snelson, another driver on the highway, saw Taylor crash into Bascom. Our review of Snelson’s testimony shows that he only saw Bascom initially hit the guardrail and, when he circled back to provide aid, the second accident involving Taylor had already occurred. Snelson specifically testified that he did not see the second accident occur. Thus, contrary to the State’s argument, it is accurate to say that the State presented no evidence that anyone actually saw the second crash.

       It appears that trial counsel’s prior objection to the affidavit was based on the argument that it did not establish probable cause to believe Taylor was intoxicated.


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A16A0541.
    MONTGOMERY COUNTY v. HAMILTON.
    (788 SE2d 89)
   Dillard, Judge.

Montgomery County, Georgia (the “County”) appeals from the trial court’s denial of its motion for summary judgment, as well as the court’s grant of summary judgment against it in this class-action lawsuit seeking a tax refund on behalf of S. Keith Hamilton and similarly situated taxpayers residing in the unincorporated area of the County (the “unincorporated area”). Specifically, Hamilton sought a refund of Insurance Premium Tax proceeds (“IPTP”) that he alleged were used unlawfully by the County to fund certain “convenience centers” for the purpose of collecting and disposing of solid waste. On appeal, the County argues that the trial court erred in holding that its use of IPTP to pay the operating costs of the convenience centers was unauthorized under OCGA § 33-8-8.3, in ordering the County to refund those proceeds to Hamilton and the other class members (collectively, the “plaintiffs”), and by including its expenditure of IPTP from tax years 2006 through 2009 in the total amount of the awarded refund. For the reasons set forth infra, we reverse the trial court’s grant of summary judgment to the plaintiffs and remand the case for further proceedings consistent with this opinion.

The material facts underlying this appeal are undisputed. Since 1998, the County has funded, staffed, and maintained five convenience centers, which are located in the unincorporated area of the County and used for the purpose of collecting and disposing of solid waste. Thereafter, the County did not collect garbage or solid waste from the curbside of any residence or from the site of any property located in the unincorporated area. In fact, the County required the residents of that area to bring their trash to one of the five convenience centers for disposal. However, the County allowed anyone wishing to dispose of trash to use the centers. In 2005, the County began using IPTP to offset the cost of staffing and operating the convenience centers. Specifically, for the tax years of 2006 through 2014, the County spent the following amounts of IPTP in connection with operating the centers:

2006: $59,680.26
2007: $115,721.11
2008: $136,424.45
2009: $122,677.55
2010: $131,420.59
2011: $119,750.07
2012: $142,526.00
2013: $127,360.70
2014: $151,479.60

On September 9, 2013, Hamilton submitted a request for a tax refund to the Montgomery County Commissioners for the years 2007 through 2009, for a total amount of $2,257.04. According to Hamilton, this amount represented the taxes levied on him “through the failure of Montgomery County Commissioners to correctly roll back the Insurance Premium Tax on inhabitants of the unincorporated area of Montgomery County.” On September 25, 2013, the County denied Hamilton’s request and informed him that the IPTP had been allocated to fund services that primarily benefit the inhabitants of the unincorporated area of the County. Hamilton then requested a tax refund from the County on behalf of himself and the other property owners in the unincorporated area for the tax years 2006 through 2013, again alleging that the County had improperly levied taxes for those years. But the County denied this second request as well. Subsequently, Hamilton revised his refund request to include the 2014 tax year, and yet again, the County denied his request.

On December 18, 2013, Hamilton filed a “verified class action complaint” against the County, seeking a refund of a portion of IPTP for the tax years 2007 through 2012, which he contended had been used by the County for unauthorized purposes. Hamilton sought to initiate the action on his own behalf and other similarly situated property owners in the unincorporated area of the County. In addition to his request for a tax refund, Hamilton also asserted claims for declaratory relief, mandamus, permanent injunctive relief, and attorney fees for badfaith and stubborn litigiousness. The County answered, denying any wrongdoing and asserting several affirmative defenses. Hamilton then filed an amended complaint, alleging, inter alia, that the County’s use of IPTP to fund the convenience centers was unauthorized under OCGA § 33-8-8.3 because that statute only permits the County to use such funds for “curbside or on[-] site residential or commercial garbage and solid waste collection.” As a result of the allegedly unauthorized funding of the convenience centers, Hamilton claimed that the class was entitled to a refund of these impermissible expenditures for the tax years 2006 through 2013.

Discovery ensued, after which the parties reached an agreement as to several of the allegations in the amended complaint, and the trial court issued a consent order memorializing their agreement. Consistent with this agreement, the court granted Hamilton’s requests for mandamus, declaratory, and injunctive relief in some respects and denied them in others. In addition, the court granted Hamilton’s request for class certification, ordering that the class would consist of property owners in the unincorporated area who paid property taxes in any year from 2006 through 2014. The certified class included three subclasses of property owners: those who paid property taxes during 2006 and 2007; those who paid property taxes during 2008 and 2009; and those who paid property taxes between 2010 and 2014. As a result of the consent order, the only unresolved issues in the case were: (1) whether OCGA § 33-8-8.3 authorized the County to use IPTP to pay the costs of operating its convenience centers for collecting solid waste; and (2) if not, what amount of ad valorem taxes must be refunded to Hamilton and the class of persons he represents? The court reserved ruling on these issues and ordered the parties to file cross-motions for summary judgment, addressing each issue, and to submit a set of stipulated facts.

Thereafter, in compliance with the consent order, the parties filed cross-motions for summary judgment and a set of stipulated facts. After the parties filed responses, the court issued an order, granting the plaintiffs’ motion for summary judgment and denying the County’s cross-motion. The court awarded the plaintiffs a total tax refund of $1,107,043.33, which represented the amount of IPTP used to operate the convenience centers from 2006 to 2014. The County then moved for reconsideration, arguing, inter alia, that due to the three-year statute of limitation for seeking tax refunds, the plaintiffs, who initiated this action in 2013, could not be awarded a refund for any taxes paid prior to 2010. In connection with the motion for reconsideration, the County also filed a motion to partially set aside the court’s judgment as to the tax years 2006 through 2009. Ultimately, the court denied both motions. This appeal follows.

At the outset, we note that on appeal from the grant of summary judgment, “we construe the evidence most favorably towards the nonmoving party, who is given the benefit of all reasonable doubts and possible inferences.” And the party opposing summary judgment is not required to produce evidence demanding judgment for it, but is “only required to present evidence that raises a genuine issue of material fact.” But when only a question of law is at issue, as here, we “owe no deference to the trial court’s ruling and apply the ‘plain legal error’ standard of review.” Indeed, as recently noted by our Supreme Court, “[t]he interpretation of statutes . . . presents a question of law for the court.” With these guiding principles in mind, we turn now to the County’s specific claims of error.

1. The County first argues that the trial court erred in ruling that its use of IPTP to staff and operate its convenience centers is unauthorized by OCGA § 33-8-8.3. We agree.

When we interpret any statute, we necessarily begin our analysis with “familiar and binding canons of construction.” In considering the meaning of a statute, our charge as an appellate court is to “presume that the General Assembly meant what it said and said what it meant.” Toward that end, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, read the text “in its most natural and reasonable way, as an ordinary speaker of the English language would,” and seek to “avoid a construction that makes some language mere surplusage.” And when the language of a statute is “plain and susceptible of only one natural and reasonable construction, courts must construe the statute accordingly.” Finally, we note that when a taxing statute has doubtful meaning, it must be construed forgivingly “in favor of the taxpayer and against the State.”

Turning to the specific statute at issue here, OCGA § 33-8-8.3 (a) provides:

(a) The proceeds from the county taxes levied for county purposes, [] as provided by this chapter, shall be separated from other county funds and shall be used by the county governing authorities solely for the purpose of either:
(1) Funding the provision of the following services to inhabitants of the unincorporated areas of such counties directly or by intergovernmental contract as authorized by Article IX, Section III, Paragraph I of the Constitution of the State of Georgia:
(A) Police protection, except such protection provided by the county sheriff;
(B) Fire protection;
(C) Curbside or on-site residential or commercial garbage and solid waste collection;
(D) Curbs, sidewalks, and streetlights; and
(E) Such other services as may be provided by the county governing authority for the primary benefit of the inhabitants of the unincorporated area of the county; or
(2) Reducing ad valorem taxes of the inhabitants of the unincorporated areas of those counties in which the governing authority of a county does not provide any of the services enumerated in paragraph (1) of this subsection to inhabitants of the unincorporated areas. In fixing the ad valorem tax millage rate for the year 1984 and any year thereafter, the governing authorities of such counties shall be authorized and directed to reduce such ad valorem tax millage rate on taxable property within the unincorporated areas of such counties to offset any of the proceeds derived from any tax provided for in this chapter which cannot be expended pursuant to paragraph (1) of this subsection.

On appeal, the County argues that the trial court erred in granting summary judgment to the plaintiffs because its expenditures of IPTP to partially fund the convenience centers is authorized under the statute’s “catchall” provision, OCGA § 33-8-8.3 (a) (1) (E). In construing this statute, the trial court rejected that argument, finding that its general catchall provision could not authorize the use of IPTP for services of a similar type as those specifically identified in subsections (a) (1) (A)-(D). Focusing on the word “other” in OCGA § 33-8-8.3 (a) (1) (E), the trial court reasoned that, by specifically identifying curbside and on-site waste collection as authorized services in subsection (a) (1) (C), the statute necessarily prohibited the County from using IPTP to fund any other type of waste-collection services, such as its remote, off- site convenience centers. According to the trial court (and the plaintiffs), if the General Assembly meant to authorize the funding of “drop off” or off-site waste-collection centers, it would have omitted the words “curbside” and “on-site” from subsection (a) (1) (C) or used the term “similar” or “like” in subsection (a) (1) (E). We find this argument unavailing.

OCGA § 33-8-8.3 (a) (1) (E) expressly authorizes the use of IPTP to fund services that are “similar” or “like” (i.e., “[sjuch other services . . .”), but other than, the enumerated services identified in subsections (a) (1) (A)-(D), so long as the County provides them “for the primary benefit of the inhabitants of the unincorporated area of the [Cjounty.” Indeed, this is exactly what the County argued below, but the trial court disagreed. In doing so, the trial court noted that “the use of the term ‘other’ connotes dissimilar, not similar services.” But “other” may not be read in isolation from the phrase (and context) in which it is used. And here, subsection (a) (1) (E) plainly authorizes the use of IPTP to provide “[s\uch other services” as the ones previously listed, not merely “other services.” Suffice it to say, “such other,” when used after a specific list of items (as in this case), ordinarily means similar in kind or class or like the items previously identified. Thus, in OCGA § 33-8-8.3 (a) (1) (E), because both “such” and “other” immediately precede the word “services,” and because those words, read in isolation, have antithetical meanings (i.e., similar and different), the only reasonable interpretation of the phrase “[s]uch other services” is that the authorized services must be similar to, but different in some respects from, the specific services identified in the previous subsections. And without question, off-site waste-collection services, such as those at issue here, are similar to, but different from, curbside or on-site waste-collection services.

Significantly, our construction of the phrase “[s]uch other services” in OCGA § 33-8-8.3’s catchall provision is consistent with the Supreme Court of Georgia’s application of the statutory-construction canon “ejusdem generis,” which provides:

[W]hen a statute or document enumerates by name several particular things, and concludes with a general term of enlargement, this latter term is to be construed as being ejusdem generis [i.e., of the same kind or class] with the things specifically named, unless, of course, there is something to show that a wider sense was intended.

Although the trial court found that the canon of ejusdem generis does not apply here because there is no common trait or quality of the specific services identified in OCGA § 33-8-8.3 (a) (1) (A)-(D), we disagree. As noted by the County, each of the listed services provides for the health, safety, or welfare of the residents of the unincorporated area. And applying ejusdem generis in construing the statute’s “general term of enlargement,” any “other” service provided by the County under subsection (a) (1) (E), such as the convenience centers, must do the same. In sum, under the plain language of OCGA § 33-8-8.3, the use of IPTP to operate the County’s convenience centers may be authorized by the statute’s catchall provision, but only if, as discussed passim, it meets that subsection’s requirement that these remote, off-site waste-collection centers primarily benefit the residents of the unincorporated area.

Nevertheless, relying on a “species of noscitur a sociis,” the trial court found that, as the more specific provision regarding waste collection, OCGA § 33-8-8.3 (a) (1) (C) controlled such that the more expansive catchall provision could not authorize any type of waste collection not specifically enumerated in subsection (a) (1) (C). Specifically, the trial court relied on the following principle of statutory construction, which the Supreme Court of Georgia has likewise approved:

[When] there is in the same statute a specific provision, and also a general one which in its most comprehensive sense would include matters embraced in the former, the particular provision must control, and the general provision must be taken to affect only such cases within its general language as are not within the provisions of the particular provision.

But in this particular case, subsection (a) (1) (E) expressly authorizes the use of IPTP for services that are similar to those enumerated in the preceding, more specific, subsections (“[s]uch other services ...”), which means there is no need to resort to this canon of statutory construction. Indeed, the County’s off-site convenience centers are similar to curbside and on-site waste collection because both services provide for the waste-collection needs of County businesses and residents. Moreover, to the extent that “curbside” and “on-site” waste collection, as identified in the more specific provision of subsection (a) (1) (C), could be included as an authorized service under subsection (a) (1) (E) in its “most comprehensive sense,” subsection (a) (1) (C) would control only to the extent that the County could rely on that specific provision and would be relieved of its burden, under the catchall provision (i.e., subsection (a) (1) (E)), to establish that the service primarily benefits the inhabitants of the unincorporated area. Nothing in the application of noscitur a sociis in the case sub judice remotely suggests that a different method of providing waste collection, although not authorized by the more specific provision, cannot still be authorized if it meets the criteria of the general catchall provision.

Furthermore, contrary to the plaintiffs’ contention, our construction of OCGA § 33-8-8.3 does not render the words “curbside” and “on-site” in subsection (a) (1) (C) meaningless or mere surplusage. The plaintiffs assert that, if the General Assembly had sought to allow any type of waste-collection service, it would have omitted the words “curbside” and “on-site” from the statute. But in support of this argument, the plaintiffs rely solely on cases involving the construction of statutes with an enumerated list of items, but no accompanying catchall provision. Indeed, each of those cases concerned whether some item qualified as one of the specifically enumerated items, not whether it met the requirements of a broad catchall provision. And here, we need not determine whether the County’s convenience centers qualify as “curbside” or “on-site” waste collection under subsection (a) (1) (C), but rather, whether the use of IPTP to fund off-site waste collection may be authorized by subsection (a) (1) (E). Moreover, the words “curbside” and “on-site” in subsection (a) (1) (C) are not mere surplusage because they operate to eliminate the requirement that the County prove that the provided services are primarily for the benefit of the inhabitants of the unincorporated area and to identify the specific types of waste-collection services that, unlike the convenience centers, will be funded by IPTP if the County chooses to provide them. And in fact, the trial court’s construction of OCGA § 33-8-8.3 renders the word “such” in subsection (a) (1) (E) utterly meaningless because, under its construction, the catchall provision could only authorize the use of IPTP for services that have no similarities whatsoever to those specifically enumerated.

Although not expressly relied upon by the trial court, the plaintiffs argue that the trial court’s construction of the statute is “demanded” by the negative-implication canon of construction, expressio unius est exclusio alterius, which means “the expression of one thing implies the exclusion of the other.” But as Justice Antonin Scalia and Bryan Garner emphasize in Reading Law: The Interpretation of Legal Texts, the negative-implication canon “must be applied with great caution, since its application depends so much on context.” And in this case, there is nothing about the relevant statutory context remotely suggesting that off-site waste-collection services are affirmatively excluded by subsection (a) (1) (C), regardless of who those services benefit. As discussed supra, reading subsections (a) (1) (C) and (a) (1) (E) in context, the statute expressly authorizes and requires the use of IPTP for curbside and on-site waste collection, while only authorizing the use of IPTP for alternative methods of waste collection ¿/those services primarily benefit the inhabitants of the unincorporated area. Significantly, subsection (a) (1) (A) affirmatively excludes police-protection services provided by the County sheriff from the types of police-protection services that maybe funded with IPTP In light of that exclusion, we must presume that if the General Assembly had sought to exclude particular types of waste-collection services under subsection (a) (1) (C) (regardless of who they benefit), it certainly knew how to do so. Indeed, under these particular circumstances, “[w]e must presume that its failure to do so was a matter of considered choice.”

Decided June 21, 2016

Finally, because the trial court erroneously concluded that the County’s use of IPTP to operate its convenience centers could not be authorized by OCGA § 33-8-8.3’s catchall provision, it did not reach the question of whether the centers satisfied that provision’s requirement that they be provided “for the primary benefit of the inhabitants of the unincorporated area of the [Cjounty.” And because we hold that the County’s use of IPTP to fund its convenience centers may be authorized by the statute’s catchall provision if it meets that subsection’s “primary benefit” requirement, we remand the case for the trial court to address this issue and to reconsider, in light of this opinion, whether the County’s use of IPTP to fund its convenience centers is authorized under OCGA § 33-8-8.3 (a) (1) (E).

2. Given our holding in Division 1 supra (i.e., that the case must be remanded to the trial court for further consideration), we find it premature to address the County’s remaining claims of error.

F or all of the foregoing reasons, we reverse the trial court’s grant of summary judgment to the plaintiffs and remand for further proceedings consistent with this opinion.

Judgment reversed and case remanded.

Phipps, P. J., and Peterson, J., concur.

O’Quinn & Cronin, Michael A. O’Quinn, Jacob S. O’Neal; Kaufold & Everett, Howard C. Kaufold, Jr., for appellant.

Thomas A. Peterson IV; Roberts Tate, LLC, James L. Roberts TV, for appellee.

       In conjunction with their cross-motions for summary judgment, the parties submitted a statement of stipulated material facts. But we note that, to the extent that any material facts are in dispute, we view them in a light most favorable to the County (i.e., the nonmoving party). See, e.g., Fennelly v. Lyons, 333 Ga. App. 96, 96 (775 SE2d 587) (2015).

       The convenience centers are sometimes referred to throughout the record as “recycling centers.”

       The County acknowledged that it had not briefed the statute-of-limitation issue prior to filing its motion for reconsideration.

        Nguyen v. Sw. Emergency Physicians, P.C., 298 Ga. 75, 82 (3) (779 SE2d 334) (2015) (punctuation omitted).

         Id. (punctuation omitted).

        Coker v. Moemeka, 311 Ga.App. 105, 107 (1) (714 SE2d 642) (2011) (punctuation omitted); accord Artson, LLC v. Hudson, 322 Ga. App. 859, 860 (747 SE2d 68) (2013).

        Lue v. Eady, 297 Ga. 321, 326 (2) (a) (773 SE2d 679) (2015); see also Merry v. Williams, 281 Ga. 571, 573 (2) (642 SE2d 46) (2007); Monticello, Ltd. v. City of Atlanta, 231 Ga.App. 382, 383 (1) (499 SE2d 157) (1998).

        Holcomb v. Long, 329 Ga.App. 515, 517 (1) (765 SE2d 687) (2014); accord In the Interest of L. T., 325 Ga.App. 590, 591 (754 SE2d 380) (2014).

        Holcomb, 329 Ga.App. at 517 (1) (punctuation omitted); accord Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013).

        Holcomb, 329 Ga. App. at 517 (1); accord Deal, 294 Ga. at 172 (1) (a); see also Tibbles v. Teachers Retirement Sys. of Ga., 297 Ga. 557, 558 (1) (775 SE2d 527) (2015) (“A statute draws its meaning, of course, from its text.”) (citation and punctuation omitted); Chan v. Ellis, 296 Ga. 838, 839 (1) (770 SE2d 851) (2015) (same); State v. Able, 321 Ga. App. 632, 636 (742 SE2d 149) (2013) (“A judge is charged with interpreting the law in accordance with the original and/or plain meaning of the text at issue (and all that the text fairly implies) . . . .”).

        Holcomb, 329 Ga.App. at 517 (1); see also Arizona v. Inter Tribal Council of Arizona, Inc., _ U. S. _ (II) (B) (133 SCt 2247, 2254, 186 LE2d 239) (2013) (Scalia, J.) (“Words that can have more than one meaning are given content, however, by their surroundings.” (citation and punctuation omitted)); Tibbles, 297 Ga. at 558 (1) (“The common and customary usages of the words are important, but so is their context.”) (citation and punctuation omitted); Chan, 296 Ga. at 839 (1) (same); Deal, 294 Ga. at 172 (1) (a) (“[W]e must view the statutory text in the context in which it appears[.]”).

        Holcomb, 329 Ga. App. at 518 (1) (punctuation omitted); accord Deal, 294 Ga. at 172-73 (1) (a).

        Holcomb, 329 Ga. App. at 518 (1) (punctuation omitted); accord In the Interest of L. T., 325 Ga.App. at 592.

        Holcomb, 329 Ga. App. at 518 (1) (punctuation omitted); accord Luangkhot v. State, 292 Ga. 423, 424 (1) (736 SE2d 397) (2013); see also Deal, 294 Ga. at 173 (1) (a) (“[I]f the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.” (punctuation omitted)).

        Telecom*USA, Inc. v. Collins, 260 Ga. 362, 364 (1) (393 SE2d 235) (1990).

       It is undisputed that the County’s use of IPTP is governed by OCGA § 33-8-8.3.

       Although the County also argued to the trial court that its convenience centers qualified as “on-site” waste collection under OCGA § 33-8-8.3 (a) (1) (C), the County does not reassert that argument on appeal, and thus, has abandoned it. See Guilford v. Marriott Int’l, Inc., 296 Ga. App. 503, 504 (675 SE2d 247) (2009) (deeming claims of error abandoned when they were unsupported by citation to authority or argument).

        See The Compact Oxford English Dictionary 1231 (2d ed. 1991) (defining “other” as, inter alia, “[ejxisting distinct from[ ] that already mentioned or implied; not this, not the same, different in identity; further, additional” and “different in kind or quality”).

        See supra footnote 11 & accompanying text.

        See The Compact Oxford English Dictionary 1951 (defining “such” as, inter alia, “of the same kind or class as something mentioned or referred to; of that kind; similar-, or like" (emphasis supplied)); Black’s Law Dictionary 1446 (defining “such” as “[ojfthis or that kind ... That or those; having just been mentioned . . . .”).

        Ctr. for a Sustainable Coast v. Coastal Marshlands Prot. Comm., 284 Ga. 736, 737-38 (1) (670 SE2d 429) (2008). It is worth noting that our Supreme Court has applied ejusdem generis in construing statutes even when, as here, the general term of enlargement uses the word “other” following an enumerated list of items. See Ga. Bd. of Chiropractic Examiners v. Ball, 224 Ga. 85, 89 (1) (160 SE2d 340) (1968) (“It is a well known rule that in construing a statute where certain acts are specified which are followed by a general expression referring to other acts, such other acts must be of like character with those named. Ejusdem generis is a rule of construction to ascertain and give effect to legislative intent [as reflected in the plain meaning of the relevant text].” (punctuationomitted) (emphasisadded)); Standard Oil Co. v. Swanson, 121 Ga. 412, 415 (49 SE 262) (1904) (“[When] a statute or other document enumerates several classes of persons or things, and immediately following, and classed with such enumeration, the clause embraces ‘other’ persons or things, the word ‘other will generally be read as ‘other such, like,’ so that persons or things therein comprised may be read as ejusdem generis with, and not of a quality superior to or different from, those specifically enumerated. This rule is well established in this State.” (citations omitted) (emphasis added)); see also Longleaf Energy Associates, LLC v. Friends of Chattahoochee, Inc., 298 Ga.App. 753, 759 (2) (681 SE2d 203) (2009) (“Under the rule of statutory construction known as ‘ejusdem generis,’ when a generally described activity such as ‘otherwise is subject to regulation’ follows an enumeration of specifically described activities, the general activity will ordinarily be construed as referring to the same kind or class of activity as the preceding specific activities, unless something shows that a wider sense was intended.” (punctuation omitted) (emphasis added)); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Statutory Texts 199 (1st ed. 2012) (“The principle of ejusdem generis essentially says just that: It implies the addition of similar after the word other.”).

        See OCGA § 33-8-8.3 (a) (1) (E).

       As the Supreme Court of Georgia has explained, “under the canon of noscitur a sociis, the words in [a statute] should be understood in relation to each other, since words, like people, are judged by the company they keep.” Warren v. State, 294 Ga. 589, 590-91 (1) (755 SE2d 171) (2014); see also Patrick v. Huff, 296 Ga. App. 343, 347 (1) (674 SE2d 398) (2009) (“Words, like people, are judged by the company they keep. Noscitur a sociis. The critical phrase thus must be gauged by the words surrounding it.” (punctuation omitted)).

        Mayor & Aldermen of the City of Savannah v. Savannah Elec. & Power Co., 205 Ga. 429, 436-37 (54 SE2d 260) (1949), quoting 50 Am. Jur. 371, § 367.

        See Frix v. State, 298 Ga. App. 538, 540-41 (1) (680 SE2d 582) (2009) (holding that a statute that defined “electronic storage device” as “including floppy disks and other magnetic storage devices” or “CD-ROM” did not include text messages sent via cell phone); Trench Shoring Servs. of Atlanta, Inc. v. Westchester Fire Ins. Co., 274 Ga. App. 850, 851-52 (619 SE2d 361) (2005) (holding that a statute providing that a person shall have a special lien on the real estate, factories, railroads, or other property for which they furnish labor, services, or materials did not extend to persons performing work that was not on the development property itself); State of Ga. v. Foote, 225 Ga. App. 222, 223 (1) (483 SE2d 628) (1997) (holding that a statute providing that “a property interest shall not be subject to forfeiture ... for a violation involving one gram of cocaine or less” required the State to demonstrate that a mixture that tested “positive for cocaine” actually contained “one gram minimum of ‘pure’ cocaine” for the statute to apply).

        See OCGA § 33-8-8.3 (a) (providing that the proceeds from the county taxes levied for county purposes “shall be used" by the County for the services enumerated in subsection (1), which expressly includes curbside or on-site residential or commercial garbage and solid waste collection).

        McAlister v. Abam-Samson, 318 Ga. App. 1, 4 (1) n.13 (733 SE2d 58) (2012) (punctuation omitted).

       Scalia & Garner, supra footnote 21, at 107; see, e.g., McAlister, 318 Ga.App. at 4 (1) n.13.

        See OCGA § 33-8-8.3 (a) (1) (C), (E).

        See OCGA § 33-8-8.3 (a) (1) (A).

        See, e.g., Bauerband v. Jackson Cty., 278 Ga. 222, 225-26 (3) (598 SE2d 444) (2004) (noting that the use of the terms “sums payable in the individual calendar year renewal term” and “annual payments” elsewhere in a statute showed that, “had the General Assembly wished to require that future obligations be set forth asa sum certain [in the instant provision], it knew how to accomplish that”); Avila v. State, 333 Ga. App. 66, 69-70 (775 SE2d 552) (2015) (noting that the General Assembly’s use of the phrase “during the commission of the offense” in certain subsections of a criminal statute made clear that it knew how to specify that a disqualifying event must occur while the crime was in process, and that the subsection at issue did not include such a limitation); Inland Paperboard & Packaging, Inc. v. Ga. Dep’t of Revenue, 274 Ga. App. 101, 104 (616 SE2d 873) (2005) (noting that if the General Assembly intended to include a particular exemption in a tax statute, the statutory history showed that it knew how to do so).

        Inland Paperboard & Packaging, Inc., 274 Ga. App. at 104 (d) (punctuation omitted), quoting Hollowell v. Jove, 247 Ga. 678, 683 (279 SE2d 430) (1981); see Transp. Ins. Co. v. El Chico Restaurants, Inc., 271 Ga. 774, 776 (524 SE2d 486) (1999) (“We must presume that the legislature’s failure to include the limiting language was a matter of considered choice.”); Citibank (S. Dakota), N.A. v. Graham, 315 Ga. App. 120, 122 (1) (726 SE2d 617) (2012) (noting that, when the General Assembly provided for a tax refund in a different statutory provision, “we must presume that the legislature’s failure to provide a refund under [the statute at issue] was a matter of considered choice” (punctuation omitted)).


author: PHIPPS, Presiding Judge.

text:
    A16A0269.
    CASH v. THE STATE.
    (786 SE2d 560)
   PHIPPS, Presiding Judge.

After a bench trial, Joshua William Cash was convicted of driving under the influence of alcohol. He appeals, challenging the sufficiency of the evidence. He also argues that the trial court erred in denying his motion to suppress. For reasons that follow, we reverse and remand for further proceedings.

1. In reviewing Cash’s sufficiency challenge, we construe the evidence in the light most favorable to the verdict, and Cash no longer enjoys a presumption of innocence. We neither weigh the evidence nor assess witness credibility, but merely determine whether the trial court was authorized to find Cash guilty beyond a reasonable doubt.

So viewed, the evidence shows that on the night of October 12, 2014, a deputy with the Forsyth County Sheriff’s Office observed a car stopped on the shoulder of State Route 400. The vehicle appeared to be occupied, and the deputy became concerned that the occupants might need assistance. He activated his patrol car’s blue lights, pulled behind the vehicle, and approached it. Inside, the deputy found Cash in the driver’s seat and one passenger. Cash told the deputy that they had stopped on the side of the road to figure out where they were going that night.

As the deputy spoke to Cash, he smelled a strong odor of alcoholic beverage coming from the vehicle. He also noticed that Cash’s eyes were glassy, bloodshot, and watery, manifestations consistent with alcohol consumption. He asked whether Cash had consumed any alcohol, and Cash admitted to drinking two beers several hours earlier. At the deputy’s request, Cash stepped out of the vehicle. Cash was unsteady on his feet, and the deputy detected an odor of alcohol on his person. The deputy performed the horizontal gaze nystagmus field sobriety test on Cash, who exhibited six out of six clues, indicating impairment. He asked Cash to participate in several other field sobriety evaluations, but Cash declined, requesting instead to take a breathalyzer test at the police station.

Based on the odor of alcohol about Cash’s person, his physical manifestations, and his performance on the horizontal gaze nystag-mus test, the deputy determined that Cash was under the influence of alcohol to the extent he was less safe to drive and placed him under arrest. The deputy then read Cash Georgia’s implied consent warning. Cash agreed to submit to a state-administered breath test on the Intoxilyzer 5000, which the deputy conducted at the county detention center. Although the deputy identified a copy of the breath test results at trial, the state never tendered the results into evidence, and they were not admitted.

At the conclusion of the evidence, the trial court found Cash guilty of driving with a blood alcohol concentration of 0.08 grams or more (a per se violation) and driving under the influence of alcohol to the extent he was less safe to drive (a less safe violation). After merging the two counts for purposes of sentencing, the trial court convicted Cash of driving under the influence (per se). Cash now appeals, arguing that his conviction cannot stand because the state did not tender the breath test results into evidence.

(a) Count 1 of the accusation alleged that Cash committed a per se DUI violation by driving “while his breath alcohol concentration was .08 grams or more within 3 hours after such driving ended, due to alcohol consumed before such driving ended.” Given its failure to tender the Intoxilyzer 5000 test results into evidence, the state admits — and we find — that it presented insufficient proof of this charge. Accordingly, Cash’s conviction for driving under the influence must be reversed, and Cash cannot be retried on Count l.

(b) The state’s mishandling of the breath test results also undermines the trial court’s finding of guilt as to Count 2 of the accusation, which charged Cash with the less safe violation. We first note that the evidence with respect to this charge was sufficient. Testimony regarding Cash’s location that night, appearance, smell, unsteadiness on his feet, admitted consumption of alcohol, and performance on the horizontal gaze nystagmus test supported the trial court’s determination that Cash had driven his vehicle while under the influence of alcohol to the extent he was less safe to drive. The record further shows, however, that the Intoxilyzer 5000 test results were given to the trial court to review with the other exhibits, even though the test results were never tendered or admitted into evidence. Those results indicated that Cash provided two breath samples, which registered alcohol concentrations of 0.114 and 0.117 grams.

The state concedes that the test results were considered by the trial court in reaching its verdict, inappropriately and harmfully contributing to the finding of guilt on Count 2. We agree. Although the properly admitted evidence was sufficient to support the less safe finding, the evidence was not overwhelming, particularly since the deputy did not encounter Cash until after Cash had stopped his vehicle on the side of the road. The breath test results, on the other hand, showed that Cash had a blood alcohol concentration well above the legal limit following his arrest. Under these circumstances, we find it highly probable that the test results, which were never admitted into evidence, influenced the verdict. Cash, therefore, is entitled to a new trial on Count 2 (less safe).

2. Cash also claims that the trial court erred in denying his motion to suppress. Because this issue likely would be raised during any retrial of the less safe charge, we address it here.

In his motion to suppress, Cash argued that by pulling behind his car with blue lights flashing, the deputy improperly stopped and detained him without any articulable suspicion that he was engaged in criminal activity The trial court denied the motion, concluding that the deputy’s initial approach of Cash’s vehicle was a first-tier police-citizen encounter that did not require suspicion of criminal activity We find no error.

The deputy testified at the suppression hearing that he saw Cash’s occupied car on the side of the roadway at approximately 1:30 a.m. Concerned that the occupants needed help, he pulled behind the vehicle to check on them. He activated his blue lights for safety so that the occupants would know he was a law enforcement officer, rather than “just another person coming up behind [them],” and to alert other Georgia 400 drivers of their presence on the side of the road. He admittedly had no reason to believe Cash had violated the law when he pulled behind the car. And he testified that Cash “was free to go at that time.” According to the deputy, “all I was doing . . . was trying to see if [Cash] needed help.”

The deputy approached the driver’s side of the car and asked whether “everything was all right.” At that point, he immediately smelled alcohol and noticed Cash’s watery, bloodshot eyes. He then commenced a DUI investigation.

Georgia recognizes three distinct tiers of police-citizen encounters: “verbal communications which involve no coercion or detention; brief stops or seizures which must be accompanied by a reasonable suspicion; and arrests which can only be supported by probable cause.” In a first-tier encounter, a police officer may approach an individual, “ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officer does not detain the citizen or create the impression that the citizen may not leave.” Generally, “an officer’s approach of a stopped vehicle and inquiry as to what is going on constitutes a first-tier communication, rather than a stop or seizure requiring reasonable suspicion.”

The trial court properly found that the deputy’s initial approach of Cash’s vehicle fell within the first tier of police-citizen encounters. The vehicle was already stopped when the deputy came upon it. Although the deputy activated his blue lights, “given the late hour, the hazard presented by vehicles parked on the side of a dark highway, and [the officer’s] offer of assistance, this fact did not create the impression that [Cash] could not leave.” Nothing prevented Cash from departing, and the deputy testified that he was free to go.

Decided May 27, 2016

Reconsideration denied June 22, 2016

Banks, Stubbs & McFarland, R. Parker McFarland, Jr., for appellant.

William A. Finch, Solicitor-General, Jenna N. Thomas, Assistant Solicitor-General, for appellee.

Simply put, the deputy did not need suspicion of criminal activity to approach the vehicle. Moreover, once he smelled alcohol in the car and observed Cash’s appearance, he had “reasonable grounds to conduct an investigative inquiry to determine whether [Cash] was engaged in criminal activity, e.g., driving under the influence.” The trial court, therefore, properly denied Cash’s motion to suppress.

Judgment reversed and case remanded.

Dillard and Peterson, JJ., concur.

        Peters v. State, 281 Ga. App. 385 (1) (636 SE2d 97) (2006).

       Id.; Duren v. State, 252 Ga. App. 257, 258 (555 SE2d 913) (2001).

       See OCGA § 40-6-391 (a) (5).

        See Epps v. State, 298 Ga. App. 607, 609 (1) (680 SE2d 636) (2009) (“In the absence of the blood test results, there is no competent evidence that [the defendant] had ‘an alcohol concentration of 0.08 grams or more at a time within three hours after driving and being in actual physical control of a moving vehicle, said alcohol having been consumed prior to such driving,’ as charged in the accusation.”) (footnote omitted); Peters, supra at 386 (1) (reversing per se conviction where state failed to offer evidence that defendant’s “blood alcohol level exceeded the legal limit within three hours of when he last had control of a moving vehicle”).

        See State v. Caffee, 291 Ga. 31, 34 (3) (728 SE2d 171) (2012) (“The DoubleJeopardy Clause precludes a second trial after a revie wing court determines that the evidence introduced at trial was insufficient to sustain the verdict.”).

        See Richardson v. State, 299 Ga. App. 365, 366-367 (1) (682 SE2d 684) (2009) (conviction for driving under the influence of drugs (less safe) supported by evidence that, following traffic stop, defendant’s car smelled of marijuana, defendant had watery, bloodshot eyes and slurred speech, he had difficulty performing several field sobriety tests, and he admitted to consuming marijuana earlier that day); Duren, supra at 259 (“The results of field sobriety tests, in conjunction with other factors including the physical appearance of the driver, red or glassy eyes, an unsteady stance, the presence of the odor of alcohol, the existence of an accident, and any inculpatory statements made by the driver or witnesses may form an appropriate basis for an evaluation by an officer, and ultimately a jury, as to whether a driver was impaired by alcohol to the extent that it was less safe for him to drive.”) (citation and punctuation omitted).

       See Bravo v. State, 304 Ga. App. 243, 249-250 (2) (696 SE2d 79) (2010) (reversing DUI (less safe) conviction after trial court improperly admitted evidence of defendant’s blood alcohol concentration because it was highly probable that the erroneously admitted evidence contributed to the verdict and thus was not harmless).

       See Lindsey v. State, 282 Ga. 447, 450 (2) (651 SE2d 66) (2007) (reversing conviction and remanding for new trial where error in admitting evidence was not harmless); Bravo, supra at 250 (2), (3) (reversing DUI (less safe) conviction following erroneous admission of evidence and noting that retrial will occur). See also Caffee, supra (double jeopardy “does not preclude the State from retrying a criminal defendant whose conviction is set aside due to trial error, such as the incorrect admission of evidence”); Shah v. State, 288 Ga. App. 788, 789 (655 SE2d 347) (2007) (following trial error, state authorized to retry defendant on DUI (less safe) charge, but not on DUI (per se) charge because it failed to present sufficient evidence of a per se violation during the original trial).

        Hutto v. State, 259 Ga. App. 238, 239 (576 SE2d 616) (2003) (punctuation and footnote omitted).

       Id. (punctuation and footnote omitted).

       Id. (punctuation and footnote omitted).

       Id. (footnote omitted).

       See id. at 239-240 (officer engaged in first-tier encounter with motorcyclist when he pulled behind motorcycle stopped on side of highway at night, activated blue lights, and approached to determine whether motorcyclist needed assistance). See also Darwicki v. State, 291 Ga. App. 239, 240 (1) (661 SE2d 859) (2008) (physical precedent only) (“[F]irst-tier encounter was not turned into a second-tier seizure simply because the deputy activated his blue lights.”).

        McClain v. State, 226 Ga. App. 714, 718 (1) (487 SE2d 471) (1997) (citation and punctuation omitted). See also State v. Criswell, 327 Ga.App. 377, 383 (3) (759 SE2d 255) (2014) (officer who approached defendant as part of first-tier encounter, but detected an odor of alcohol about defendant’s person and noticed his bloodshot eyes, “had the required articulable suspicion” to investigate whether defendant had been driving under the influence); Hutto, supra at 240 (defendant’s bloodshot, watery eyes and the smell of alcohol on his breath gave officer sufficient grounds to briefly detain defendant to investigate whether he was engaged in criminal activity).

       See Hutto, supra.