text:
    A10A1825.
    BUTLER v. THE STATE.
    (709 SE2d 293)
   Doyle, Judge.

Karan Butler appeals the denial of her plea in bar and motion to dismiss her indictment based on a violation of her right to a speedy trial. We reverse and remand with direction, for reasons that follow.

The record shows that Butler was arrested on May 30, 2007, and charged with several crimes arising out of a May 28, 2007 robbery and shooting of a cab driver. She was indicted on October 4, 2007, and charged with aggravated assault, aggravated battery, two counts of possession of a firearm during the commission of a crime, and possession of marijuana. Butler filed a motion for a bond hearing on October 5, 2007, but the trial court denied the motion, and she has remained in jail since her arrest.

Butler has had at least five separate attorneys since her arrest. Although she was represented by counsel at the time, Butler sent numerous letters to the clerk of court, her attorney, and the trial court, including: (1) a letter dated December 8, 2008, to her attorney (with a copy sent to the clerk of court) requesting a bond and a trial date, and asserting her “right to a speedy trial”; (2) a letter dated December 9, 2008, to the clerk requesting certain evidence; and (3) letters to the trial judge dated (a) January 14, 2009, (b) February 16, 2009, and (c) February 21, 2009. On February 26, 2009, Butler filed a grievance with the State Bar of Georgia against her attorney, who filed a motion to withdraw as counsel on July 2, 2009. Butler’s fifth attorney filed an entry of appearance on August 10, 2009, and he filed a motion for bond on December 15, 2009. Following a January 25, 2010 hearing, the trial court denied Butler’s motion for bond and specially set a March 1, 2010 trial date. Thereafter, on January 27, 2010, Butler filed a plea m bar and motion to dismiss the indictment, claiming a violation of her constitutional right to a speedy trial.

At the hearing on the motion, Butler testified that she had appeared in court approximately 40 times between her arrest and the hearing. She wrote multiple letters to her attorney, with copies to the trial court, the State, and the clerk of court, requesting a trial. As of the date of the hearing, she had been in jail for 32 months. According to Butler, she suffered from stress, anguish, and nightmares while in custody, and she was placed on psychiatric medication for depression while in jail. She also had back problems caused by the jail beds, and she suffered from ingrown toenails resulting from jail slippers, which condition required two separate surgeries. Butler further testified that she lost witnesses because of the delay in going to trial, including Ashley Hornick, a fellow inmate who allegedly knew the person who actually committed the crimes Butler was accused of committing; Butler’s brother, who was incarcerated in Alabama; and neighbors who would serve as alibi witnesses, including two individuals named “Joelle” and “Black.” According to Butler, her ability to locate these witnesses was hampered by the passage of time and her incarceration.

On the second day of the motion hearing, the State produced Ashley Hornick, one of the witnesses that Butler claimed she was unable to locate. The State also presented the testimony of Brittany Bush, Butler’s former girlfriend, who initially told police that she did not know anything about the robbery Butler was alleged to have committed. Bush, however, later told police that Butler had admitted that she committed the robbery, and that Butler told her to tell the authorities that someone used their phone on the night of the robbery. Bush further testified that Butler called her repeatedly, several times a day on some occasions, encouraged her not to cooperate with the State, told her “to stick to the story that [they] talked about,” and advised her that Bush did not have to speak to the prosecution nor did she have to testify, even if she was subpoenaed to do so.

Following the hearing, the trial court denied Butler’s motion to dismiss and plea in bar for the reasons set forth in the transcript attached to the order. The transcript contained the following ruling:

I’m going to deny the motion. Brittany Bush. If I hadn’t heard what I heard from her, then it would be a totally different story here, because I think it would have been negligence on the part of the State arid the [c]ourt not to have this case tried. But I’ve got her testimony, which I believe leaves the defendant with unclean hands.

The court also found that until her lawyer filed the motion to dismiss, the only requests for a speedy trial were asserted by Butler, which were of “no legal effect” because she was represented by counsel at the time. Finally, the trial court stated that Butler’s “witness is available. I don’t know the full names of the witnesses. It’s speculation about whether these people could testify for her. But it is a serious — I did have a serious concern about it due to the length of the delay.” Butler appeals the denial of her motion to dismiss and plea in bar.

The Sixth Amendment guarantees criminal defendants “the right to a speedy and public trial.” This right is “an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself.” The two-stage analysis for deciding constitutional speedy trial claims is set forth in Barker v. Wingo and Doggett v. United States.

In the first stage of the analysis, the court must determine whether the pretrial delay is sufficiently long to be considered presumptively prejudicial. The pretrial delay is measured from the accused’s arrest, indictment, or other formal accusation to the trial or, if the accused files a motion to dismiss the indictment, until the trial court denies the motion. If the delay has passed the point of presumptive prejudice, the court must proceed to the second step of the Barker-Doggett analysis, which requires the application of a delicate, context-sensitive, four-factor balancing test to determine whether the accused has been deprived of the right to a speedy trial.

On appeal, “we review the trial court’s denial of a motion to dismiss an indictment on speedy trial grounds for abuse of discretion and defer to the trial court’s findings of fact and its weighing of disputed facts.”

1. Presumptive prejudice. The record shows that more than 32 months elapsed from the time of Butler’s May 2007 arrest until the trial court’s March 2010 order denying her motion to dismiss the indictment. As conceded by the State, this delay is presumptively prejudicial. Accordingly, the Barker-Doggett balancing test must be considered.

2. Barker-Doggett balancing test.

The balancing test is comprised of the following four factors:

(1) the length of the delay; (2) the reasons for the delay; (3) the defendant’s assertion of the right to a speedy trial; and (4) prejudice to the defendant. We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.

(a) Length of the delay. This factor requires analysis of “the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.”

An uncommon length of the pretrial delay thus merits consideration beyond its use as a liminal screening mechanism. Here, we find nothing in the trial court’s order to show that it considered whether the delay before trial was uncommonly long given the circumstances of the case. To the extent the trial court overlooked this factor in the four-factor balancing process, it erred.

The 32-month delay in bringing Butler to trial in this case is excessive, and this factor must be weighed heavily against the State.

(b) Reasons for the delay. The trial court’s order makes no specific findings regarding the reasons for the delay in this case. The court does, however, note that Brittany Bush’s testimony “leaves the defendant with unclean hands,” and that without her testimony, “it would have been negligence on the part of the State and the [c]ourt not to have this case tried.”

To the extent that the trial court ruled that Butler’s communications with Bush delayed the trial such that this factor should be weighed against Butler, such ruling is erroneous. As Bush testified, the State subpoenaed her for the speedy trial hearing, and she appeared and testified at the hearing, including stating that Butler had admitted committing the robbery. The State never subpoenaed her before then, and there was no evidence that the prosecution tried to locate Bush and was unable to do so. Even if Bush had been unwilling to testify against Butler, however, her lack of cooperation would not have provided a reasonable basis to delay the trial for almost three years; to hold otherwise would be to effectively condone excessive pretrial incarceration of Butler unless and until Bush agreed to testify against her.

The State failed to offer any other explanation whatsoever for the delay in bringing Butler to trial. “Where no reason appears for a delay, we must treat the delay as caused by the negligence of the State in bringing the case to trial.” Even unintentional delays must “be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.”

[A]s explained by the United States Supreme Court, the weight we assign to official negligence compounds over time thus, our toleration of such negligence varies inversely with its protractedness. Persistent neglect in concluding a criminal prosecution indicates an uncommonly feeble interest in bringing an accused to justice; the more weight the Government attaches to securing a conviction, the harder it will try to get it.

Nevertheless, not all “government negligence in failing to prosecute must be viewed as benign, and therefore entitled to only de minimis weight against the government.”

Our cases reflect that negligence is entitled to minimal weight against the State only where it results either from the prosecution’s inadvertent neglect of the case or from solely administrative factors over which the prosecution has no control, such as overcrowded court dockets or understaffed law enforcement agencies.

Here, given the complete lack of an explanation for the uncommonly long delay and the fact that Butler wrote multiple letters to the State (or sent copies of letters to the State) asserting her right to a speedy trial, we cannot conclude that the State’s neglect was inadvertent or that the delay was beyond the control of the prosecution. Thus, the trial court should have weighed this factor against the State, and to the extent it failed to do so, it erred.

(c) The defendant’s assertion of her right to a speedy trial. “Because a defendant may benefit by delaying a trial, this Court has recognized that a defendant has a responsibility to assert h[er] right to a speedy trial.” “In order to invoke the right, the accused need not file a formal motion, though that is certainly sufficient.” “The relevant question for the purposes of the third Barker-Doggett factor is whether the accused has asserted the right to a speedy trial ‘in due course.’ ”

Here, Butler wrote multiple letters to her counsel, the clerk of court, the tried court, and the State requesting a tried date, beginning in December 2008. But

this Court has repeatedly held that a pro se demand for a speedy trial filed while a crimined defendant is represented by counsel was of no legal effect whatsoever. The Sixth Amendment right does not afford the defendant the hybrid right to simultaneously represent [herself] and be represented by counsel.

Thus, Butler’s pro se letters “do not constitute a viable demand for a speedy trial.” Instead, Butler’s first viable demand for a speedy trial was asserted in January 2010 by counsel in a motion to dismiss filed almost three years after her arrest, and this delay in asserting her constitutional right to a speedy trial should have been weighed against her, though not heavily.

(d) Prejudice to the defendant. Again, it is not entirely clear from the trial court’s order whether it weighed this factor against Butler or the State. Based on our review of the record, the prejudice factor weighs against the State.

In analyzing this factor, we consider “three interests which the right to a speedy trial protects: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the defendant; and (3) limiting the possibility that the defense will be impaired.”

“ [Consideration of prejudice is not limited to the specifically demonstrable, and affirmative proof of particularized prejudice is not essential to every speedy trial claim. Rather, whether a defendant needs to show particularized prejudice depends upon an evaluation of the first three factors in the balancing test, and whether those factors weigh against the government. The central holding of Doggett was that when there is a significant delay (the first factor), caused by the government (the second factor), then the resulting presumption of prejudice, albeit unspecified, if neither extenuated, as by the defendant’s acquiescence (the third factor), nor persuasively rebutted by the State, entitles the defendant to relief.

Here, the 32-month “delay in this case falls [more than two years] shy of the five years we have previously held gives rise to a presumption of actual prejudice.” As we have previously held,

the Barker-Doggett analysis is a balancing test, however, requiring the trial court to analyze each case based upon its own unique facts, it necessarily forbids the application of any “bright-line” rules. Thus, the fact that the delay in this case was less than five years does not automatically foreclose a presumption of actual prejudice. Rather, in determining whether a pre-trial delay gives rise to a presumption of actual prejudice, the trial court must examine the delay relative to all other factors, including the complexity of the case and the evidence existing on the date the State initiated the prosecution. In short, the extent to which a defendant must prove prejudice from a delay in prosecution is directly related to the government’s reasonableness in its pursuit of that defendant.

In the instant case, the underlying crime was the armed robbery and shooting of a taxi driver. The State does not argue that the case is complex, and our review of the record does not lead us to conclude that the trial would be “complicated or prolonged.” Despite the uncomplicated nature of the case, the State permitted it to languish, for no discernible reason, for the 32 months preceding the motion to dismiss filed by Butler’s counsel. And we cannot conclude that the delay was inadvertent, given that Butler sent repeated letters to the prosecution and the court requesting a trial. Thus, although the delay alone did not result in a presumption of actual prejudice to Butler, we conclude that the 32-month delay coupled with the other factors set forth above could support such a finding.

In addition to arguing that prejudice is presumed, Butler also argues that the delay was prejudicial based on her three-year pretrial incarceration and her physical and mental ailments, including depression, anxiety, and toe and back problems while in custody. Generally, in the absence of evidence that a defendant “has been subjected to substandard conditions in the county jail where [s]he has been housed,” a defendant cannot sufficiently demonstrate that her pretrial incarceration was oppressive. Here, however, Butler also presented evidence that since her arrest, she suffered from depression, anxiety, and nightmares, for which she was placed on two separate medications, and she had toe and back problems while in custody. And while generally the fact that a defendant “never filed a demand for a speedy trial suggests that [she] was not suffering anxiety or stress from the delay, at least not such anxiety that [s]he wanted to get the trial over with,” Butler made repeated attempts to get her counsel and/or the trial court to schedule the trial. Although her attempts were ultimately of no legal import because she was represented by counsel at the time, they do suggest that she was attempting to alleviate her stress and anxiety and in no way acquiesced to the delay.

“[T]he presumption of prejudice addressed in Barker strengthens with the passage of time and, as the delay increases, less specific harm need be demonstrated to conclude that the delay is prejudicial.” Guided by this principle and given the circumstances of this case, we conclude that the trial court should have weighed the prejudice factor against the State, and to the extent that it failed to do so, it erred.

3. Balancing of the four factors. The trial court made at least one legal error when considering Butler’s motion to dismiss and plea in bar. “Although we review the trial court’s decision for abuse of discretion, the deference we owe to the trial court is diminished when that court’s decision is based on clearly erroneous factual findings or errors of law.” Applying the Barker-Doggett analysis, we conclude that the length of the delay, the blame for the delay, and the prejudice to the defendant weigh against the State. Butler’s failure to assert her right to a speedy trial weighs against her. Accordingly, we conclude that the trial court abused its discretion by denying Butler’s motion for dismissal and plea in bar.

Decided March 17, 2011

Reconsideration denied March 31, 2011

Sparticus D. Heyward, for appellant.

Patrick H. Head, District Attorney, Dana J. Norman, Albert T. Reeves, Anna G. Cross, John R. Edwards, Amelia G. Pray, Assistant District Attorneys, for appellee.

“The only possible remedy for a violation of the constitutional right to a speedy trial is dismissal of the indictment with prejudice. Accordingly, this case is remanded with direction to enter a discharge and acquittal in favor of [Butler].”

Judgment reversed and case remanded with direction.

Ellington, C. J., and Andrews, J., concur.

       The trial court forwarded to Butler’s attorney and the assistant district attorney assigned to the case a copy of the February 21, 2009 letter, which detailed her lack of communication with counsel and indicated that she had located a witness who knew that another person committed the alleged crimes.

       Hornick did not testify at the hearing.

       Bush later learned that someone placed a call from her telephone to the taxi service that employed the driver, who was the victim in the armed robbery.

       “The speedy trial right enshrined in the Georgia Constitution is coextensive with the federal guarantee.” Ruffin v. State, 284 Ga. 52, 54 (2) (663 SE2d 189) (2008).

        United States v. Ewell, 383 U. S. 116, 120 (86 SC 773, 15 LE2d 627) (1966).

       407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972).

       505 U. S. 647 (112 SC 2686, 120 LE2d 520) (1992).

       (Citations and punctuation omitted.) West v. State, 295 Ga. App. 15, 16 (670 SE2d 833) (2008).

        Grizzard. v. State, 301 Ga. App. 613, 614 (688 SE2d 402) (2009).

       See Meder v. State, 305 Ga. App. 702 (a) (700 SE2d 706) (2010) (“ ‘any delay approaching a year raises a threshold presumption of prejudice’ ”).

       (Punctuation and footnote omitted) Simmons v. State, 304 Ga. App. 39, 40-41 (2) (696 SE2d 75) (2010).

        Doggett, 505 U. S. at 652 (II).

       (Citation and punctuation omitted.) Teasley v. State, 307 Ga. App. 153, 158 (2) (a) (704 SE2d 248) (2010).

       See Perry v. Mitchell, 253 Ga. 593, 594 (322 SE2d 273) (1984), overruled in part on other grounds, Character v. State, 285 Ga. 112, 116 (2) (674 SE2d 280) (2009) (delay of more than two years is “deplorable”); Teasley, 307 Ga. App. at 158 (2) (a); State v. Ivory, 304 Ga. App. 859, 862 (2) (a) (698 SE2d 340) (2010).

       As Butler argues on appeal, the principle of unclean hands is an equitable doctrine. See Park v. Fortune Partner, Inc., 279 Ga. App. 268, 273-274 (6) (630 SE2d 871) (2006). And as set forth in OCGA § 9-5-2, “[e]quity will take no part in the administration of the criminal law. It will neither aid criminal courts in the exercise of their jurisdiction, nor will it restrain or obstruct them.” Thus, to the extent that the trial court found that Butler’s unclean hands alone precluded her right to a speedy trial, it erred.

       (Punctuation omitted.) Brannen v. State, 274 Ga. 454, 455 (553 SE2d 813) (2001).

       (Punctuation omitted.) Strunk v. United States, 412 U. S. 434, 436 (I) (93 SC 2260, 37 LE2d 56) (1973).

       (Citations and punctuation omitted.) Teasley, 307 Ga. App. at 159-160 (2) (b), citing Ruffin, 284 Ga. at 61 (2) (b) (ii).

       (Punctuation omitted.) Ditman v. State, 301 Ga. App. 187, 193 (2) (b) (687 SE2d 155) (2009).

       (Punctuation omitted). Id.

       See id.

       (Punctuation omitted.) Hester v. State, 268 Ga. App. 94, 98 (3) (601 SE2d 456) (2004).

        Ruffin, 284 Ga. at 62-63 (2) (b) (iii).

       Id. at 63 (2) (b) (iii).

       (Punctuation omitted.) Ditman, 301 Ga. App. at 194 (2) (c).

       Id.

       See id.; Hester, 268 Ga. App. at 99 (3) (defendant’s delay in asserting her right to a speedy trial was weighed against her, though not heavily, because a defendant is not required to file a speedy trial demand as a prerequisite for a plea in bar and because counsel filed a demand within months of being appointed).

       The trial court’s sole comment regarding prejudice is as follows: “And her witness is available. It’s speculation about whether those people could testify for her. But it is a serious — I did have a serious concern about it due to the length of the delay.”

       We note that the Supreme Court of Georgia recently vacated the judgment and remanded a case for proper findings in accordance with Barker because “the trial court’s order [was] insufficient to allow [the Court] to determine whether the trial court abused its discretion” by denying the defendant’s motion to dismiss his indictment for violation of his constitutional rights to a speedy trial. Higgenbottom v. State, 288 Ga. 429 (704 SE2d 786) (2011). Because the transcript of the trial court’s verbal ruling, which was incorporated into the order, gives some indication of the trial court’s findings, we need not vacate the judgment and remand this case.

        Kramer v. State, 287 Ga. App. 796, 799 (652 SE2d 843) (2007).

       (Citations and punctuation omitted.) Hayes v. State, 298 Ga. App. 338, 347 (2) (d) (680 SE2d 182) (2009).

       Id. at 348 (2) (d), citing Moore v. State, 294 Ga. App. 570, 574 (1) (d) (669 SE2d 498) (2008) (the “category of cases that presumes actual prejudice ... generally includes only those cases where the delay is five years or longer.”).

       (Punctuation omitted; emphasis supplied.) Id. at 348-349 (2) (d). See also State v. Moses, 301 Ga. App. 315, 321-322 (2) (d) (692 SE2d 1) (2009).

        Moses, 301 Ga. App. at 322 (2) (d).

       See id. (48-month delay, combined with lack of complexity of the case, could support a presumption of actual prejudice); Hayes, 298 Ga. App. at 349-350 (2) (d) (54-month delay, combined with “the relatively uncomplicated nature of this case, the fact that the government’s investigation was complete at the time of [the defendant’s] original indictment, and the fact that the delay resulted from the State’s deliberate conduct,” .. . raised a presumption of actual prejudice . . . that the State failed to rebut”) (punctuation omitted).

        Weis v. State, 287 Ga. 46, 54 (1) (d) (694 SE2d 350) (2010).

       (Citation and punctuation omitted.) Allen v. State, 268 Ga. App. 161, 163 (4) (601 SE2d 485) (2004).

        State v. Redding, 274 Ga. 831, 834 (561 SE2d 79) (2002). See also Doggett, 505 U. S. at 657 (III) (B); Boseman, 263 Ga. at 734 (1) (d).

        Teasley, 307 Ga. App. at 163 (2) (e).

       See id.; Ditman, 301 Ga. App. at 196-197 (2) (e); Hayes, 298 Ga. App. at 350 (2) (d).

       (Citation and punctuation omitted.) Teasley, 307 Ga. App. at 163 (2) (e).


source: Caselaw Access Project

author: Doyle, Judge.

license: Public Domain

text:
    A10A2100.
    LOGAN v. THE STATE.
    (709 SE2d 302)
   Doyle, Judge.

After a jury trial, William Glenn Logan was convicted of one count of violating the Computer or Electronic Pornography and Child Exploitation Prevention Act of 2007 by utilizing the internet to seduce, solicit, lure, or entice a child or another person believed by such person to be a child to commit an illegal sex act; attempted aggravated child molestation; and attempted child molestation. Logan appeals, arguing that (1) he was entrapped by law enforcement; (2) his trial counsel was ineffective for failing to raise the issue of entrapment in his motion for a directed verdict of acquittal; (3) the evidence was insufficient to support his conviction for solicitation; (4) he was illegally stopped and interrogated; and (5) his right to a jury trial was violated by improper plea bargaining, which threatened a longer sentence if he proceeded to trial. We affirm for the reasons that follow.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant... no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia. Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility 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 State’s case, the jury’s verdict will be upheld.

So viewed, the evidence presented at trial established that on September 15, 2008, an officer with the Internet Crimes Against Children Task Force operating in north Georgia, posted an advertisement in the “Casual Encounters” section of Craig’s List, a website that functions similarly to a newspaper classified advertisement section. The advertisement appeared to be from a young female willing to have casual sexual relationships with interested men. That same day and again on September 17, 2008, Logan responded to the ad using the e-mail handle wglogan2005. The officer posing as the female named Tiffany Bankston responded to Logan’s e-mail, telling him “like [I] said[, I’m] very mature an[d] interested. [J]ust wanted to let you know up front [I’m] not quite 18” and sending pictures of a 13-year-old female from an FBI database.

Logan responded to Tiffany Bankston, asking what she was interested in specifically and whether she would travel to his location or wanted to “get a room.” The officer responded to Logan as Tiffany Bankston and told him that she was 14 years old, to which Logan responded by stating, “Wow[,] I might break you,” inquiring for more pictures, and asking her to converse with him through an instant messenger service. Logan conversed with Tiffany Bankston on the evening of September 17, 2008, describing his genitals and asking what she was interested in sexually. Logan renewed this conversation with her on September 19, 2008, during which, at the behest of the officer, Logan transmitted a “thumbnail” photograph of himself, which while small, showed Logan’s face. During this conversation, Logan expressed his desire to perform oral sex on her, to have her perform oral sex on him, and to engage in sexual intercourse with her. Logan also asked her if she had previously engaged in sexual intercourse, and the officer asked Logan if he would have a contraceptive because she did not want to get pregnant. The conversation turned to meeting in person, and the officer suggested meeting at Elise Holmes Park in Catoosa County, Georgia, which the task force selected because of its secluded location and minimal traffic. Logan again engaged in sexually explicit conversation with Tiffany Bankston, describing the sex acts that he wanted to perform with her on the benches at the park and assuring her that he would meet her there at the determined time and date.

Officers from the task force arrived at the park prior to Logan and witnessed one vehicle drive up to the park entrance, leave, and then return and drive through the park gate, at which time the vehicle, driven by Logan, was stopped. Officer Dave Scroggins conducted the stop, and FBI agent Ken Hillman explained to Logan that the officers were with a task force for internet crimes against children. Logan immediately responded to Hillman that he was at the park to counsel a 14-year-old girl about the dangers of meeting men from the internet. In Logan’s vehicle, officers discovered a cellphone matching the brand from which Tiffany Bankston received e-mails from Logan, and the phone contained the e-mail address used by Logan. Officers also discovered a condom in Logan’s possession.

1. (a) Logan contends that his convictions should be reversed because he was entrapped by law enforcement. We disagree.

Entrapment is an affirmative defense that is established by showing that (1) the idea for the crime originated with the State agent; (2) the defendant was induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant was not predisposed to commit the crime.

As a general rule, in order to raise the defense of entrapment, the defendant must first admit the commission of the crime and then show that he did so because of the unlawful solicitation or inducement of a law enforcement officer. The rationale for this rule is that it is thought to be factually inconsistent and confusing for a defendant to deny that he committed a criminal act and simultaneously to complain that he was entrapped into its commission. But, if a reasonable inference of entrapment may be drawn by a rational jury from the State’s evidence, the defendant is entitled to a jury charge on entrapment unless he has presented evidence of entrapment inconsistent with his denial of the commission of the crime.

“If the defendant establishes a prima facie case of entrapment, the burden is then upon the [S]tate to disprove entrapment beyond a reasonable doubt. The determination of whether the defendant was entrapped is for the jury unless the uncontroverted evidence demands a finding of entrapment.”

Here, as testified to by a task force officer, Logan’s statement upon being approached by the officers at the park was that he came there in order to counsel “Tiffany Bankston” about the dangers of meeting older men from the internet. Logan did not testify or otherwise present evidence admitting that he committed the alleged crimes. Even without such admission, however, the trial court charged the jury on entrapment, and the jury’s conclusion that entrapment did not occur is supported by the record evidence, including the facts that (1) Logan continued communicating with and did not report Tiffany Bankston to Craig’s List when he learned that she was 14 years old; (2) Logan initiated the explicit nature of the online conversations between the two; (3) Logan initiated the conversation during which the meeting was arranged and described in detail the sex acts he wished to perform on Tiffany Bankston at the park; and (4) Logan arrived at the park with a condom on his person.

(b) Logan also contends that he received ineffective assistance of counsel because counsel failed to raise entrapment in his motion for a directed verdict of acquittal.

To show ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. More specifically, a defendant must show that trial counsel’s deficient performance created a reasonable probability of a different outcome.

“Whether the [S]tate has satisfied [its burden of disproving entrapment] generally rests with the jury and only when there is no conflict in the evidence and all evidence demands a finding of entrapment must the trial judge direct a verdict of acquittal.” For the reasons discussed in Division 1 (a), the evidence presented did not demand a finding of entrapment as a matter of law because, among other things, Logan did not admit to committing the charged crimes, and thus, Logan has not shown that his counsel’s performance was deficient.

2. Logan contends that his convictions should be reversed because the State failed to produce evidence that he attempted to solicit underage sexual intercourse. We disagree.

(a) Logan argues that the State failed to show that he took a substantial step toward completing either the offense of child molestation or the offense of aggravated child molestation. We disagree.

OCGA § 16-4-1 states that “[a] person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.”

[A]n act constituting a substantial step is one done in pursuance of the intent, and more or less directly tending to the commission of the crime. In general, the act must be inexplicable as a lawful act, and must be more than mere preparation. Yet it can not accurately be said that no preparations can amount to an attempt. It is a question of degree, and depends upon the circumstances of each case. The phrase “inexplicable as a lawful act” does not mean that the act itself must be unlawful. Rather, it means that the act, in light of previous acts, constitutes a substantial step toward the commission of a crime. The substantial step requirement shifts the emphasis from what remains to be done to what the actor has already done. The fact that further steps must be taken before the crime can be completed does not preclude such a finding that the steps already undertaken are substantial.

Via electronic communications, Logan asked the undercover officer posing as Tiffany Bankston to engage in sexual intercourse and oral sodomy with him, even after she told him she was 14. Logan then arrived at the park — the location the two had discussed meeting for sex — and he possessed a condom on his person. These facts are sufficient to show that Logan took a substantial step toward committing child molestation and aggravated child molestation.

(b) Logan also contends that his conviction pursuant to OCGA § 16-12-100.2 (d) (l) should be reversed because there is insufficient evidence that he lured or enticed Tiffany Bankston to meet him to engage in underage sexual intercourse. Again, we disagree. The evidence presented at trial shows that although Logan initially responded to an advertisement posted by a female he believed to be over 18 years old, Logan engaged in and continued to initiate sexually explicit conversations with the undercover officer posing as Tiffany Bankston after she told him she was 14 in an effort to engage in sex acts with Bankston, and he encouraged her to meet him in person to engage in those acts.

3. Logan argues that the trial court erred by denying his motion to suppress his statements to law enforcement officers because they were the fruit of an illegal interrogation. We disagree.

“In considering an appeal from denial of a motion to suppress, this Court construes the evidence in favor of the trial court’s ruling, and we review de novo the trial court’s application of the law to undisputed facts. Absent an abuse of discretion, the trial court’s order on a motion to suppress will not be disturbed.”

A police officer may make a momentary detention and investigation based upon specific and articulable facts, which must exceed mere inclination, caprice, or harassment. The principal components of a determination of reasonable suspicion or probable cause will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause.

“[N]ot every detention equates with an arrest. A law enforcement officer coming upon the scene of suspected criminal activity will conduct a general on-the-scene investigation and may detain temporarily anyone at the scene. Such detentions do not trigger the requirements of Miranda v. Arizona,”

The determination of whether an interrogation occurs focuses primarily upon the reasonable perceptions of the suspect and not the intent of the officer, although the officer’s intent is relevant. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police.

Here, the trial court determined that the stop of Logan’s car was authorized by the facts before the officers — he arrived at 10:00 p.m. in an isolated location in a vehicle with a Tennessee license plate, which fit the description of the individual whom the task force was investigating. The investigating officer stopped Logan’s vehicle and explained the reason for the stop, and these statements would not objectively be understood to be an interrogation. The trial court, therefore, did not err by determining that Logan’s response that he was at the park in order to counsel a 14-year-old girl was spontaneous and voluntary and, thus, admissible. Moreover, because Logan was properly Mirandized prior to giving a later statement to officers, the trial court did not err by admitting that statement.

Decided March 17, 2011

Reconsideration denied March 31, 2011

McNeill Stokes, for appellant.

Herbert E. Franklin, Jr., District Attorney, Alan C. Norton, Assistant District Attorney, for appellee.

4. Finally, Logan contends that his right to a jury trial was violated by illegal plea bargaining, which threatened a longer sentence if he proceeded to trial. Logan’s arguments were recently addressed by this Court in Rana v. State and held to be without merit.

Judgment affirmed.

Ellington, C. J., and Andrews, J., concur.

       OCGA § 16-12-100.2 (d) (1).

       OCGA §§ 16-4-1; 16-6-4 (c).

       OCGA §§ 16-4-1; 16-6-4 (a).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       (Punctuation omitted.) McKay v. State, 234 Ga. App. 556, 556-557 (1) (507 SE2d 484) (1998).

       See St. Jean v. State, 255 Ga. App. 129, 130 (564 SE2d 534) (2002).

       (Citations and punctuation omitted.) Id.

       (Citation omitted.) Jackson v. State, 305 Ga. App. 591, 593 (699 SE2d 884) (2010).

       The website requires users to verify that they are 18 years old in order to post advertisements in the section in question.

       See St. Jean, 255 Ga. App. at 130-131 (although the idea for the crime originated with the State, if the defendant offered no evidence of undue persuasion, incitement, or deceit, or that defendant was not predisposed to commit the crime, then there is no entrapment).

       (Citations omitted.) Robinson v. State, 308 Ga. App. 45, 46 (2) (706 SE2d 577) (2011). See also Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

       (Punctuation omitted.) Lightsey v. State, 289 Ga. App. 181, 183 (2) (656 SE2d 852) (2008).

       See, e.g., Robinson, 308 Ga. App. at 49 (2) (e) (“failure to make meritless motion cannot amount to ineffective assistance”).

       (Punctuation, footnote and emphasis omitted.) English v. State, 301 Ga. App. 842, 843 (689 SE2d 130) (2010).

       See Redman v. State, 281 Ga. App. 605 (1) (636 SE2d 680) (2006) (evidence that defendant asked the victim to perform a sex act was sufficient to support conviction for attempted child molestation).

       See Smith v. State, 306 Ga. App. 301, 302 (1) (702 SE2d 211) (2010) (affirming conviction for attempted child molestation because the defendant engaged in sexually explicit conversations with the victim, drove to an arranged location, and fled from officers). Cf. Dennard v. State, 243 Ga. App. 868, 873 (1) (b) (534 SE2d 182) (2000) (addressing attempt to commit child molestation on appeal from special demurrer to an indictment). See also OCGA § 16-4-4 (“It is no defense to a charge of criminal attempt that the crime the accused is charged with attempting was, under the attendant circumstances, factually or legally impossible of commission if such crime could have been committed had the attendant circumstances been as the accused believed them to be.”).

       OCGA § 16-6-4 (c) (defining aggravated child molestation as oral sodomy on an individual under the age of 16).

       OCQA § 16-6-4 (a) (defining child molestation as a sexual touching on an individual under the age of 16).

       It shall be unlawful for any person intentionally or willfully to utilize a computer on-line service or Internet service, including but not limited to a local bulletin board service, Internet chat room, e-mail, on-line messaging service, or other electronic device, to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice a child or another person believed by such person to be a child to commit any illegal act described in Code Section 16-6-2, relating to the offense of sodomy or aggravated sodomy; Code Section 16-6-4, relating to the offense of child molestation or aggravated child molestation; Code Section 16-6-5, relating to the offense of enticing a child for indecent purposes; or Code Section 16-6-8, relating to the offense of public indecency or to engage in any conduct that by its nature is an unlawful sexual offense against a child.
      OCGA § 16-12-100.2 (d) (1).

       (Citation omitted.) Smith v. State, 262 Ga. App. 614, 615 (585 SE2d 888) (2003).

       (Citations and punctuation omitted.) Id. at 617 (1).

       (Punctuation omitted.) Id. at 618 (2). See also Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       (Citation and punctuation omitted.) Lopez v. State, 285 Ga. App. 355, 356 (646 SE2d 271) (2007).

       See Smith, 262 Ga. App. at 617-618 (1).

       See Lopez, 285 Ga. App. at 356 (“The definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.”) (punctuation omitted). Compare with Smith, 262 Ga. App. at 617-619 (2) (holding that the officer’s actions triggered the defendant’s right to the protections of Miranda because a reasonable person “would have believed that her detention was more than just that required for temporary questioning”).

       Logan argues that the State conceded that he was in custody at the time the statements were made; however, the trial court heard the evidence presented hy the witnesses during the motion to suppress, and based on those facts, the trial court determined that Logan’s statements were spontaneously and voluntarily made after an authorized stop, based on reasonable articulable suspicion. See Smith, 262 Ga. App. at 620 (2).

       304 Ga. App. 750, 754 (4) (697 SE2d 867) (2010) (“We have consistently rejected this type of constitutional attack on the plea bargain process.”).


text:
    A10A2111.
    HIGGINS et al. v. BENNY’S VENTURE, INC.
    (709 SE2d 287)
   Doyle, Judge.

Following a bench trial, John and Rosie Higgins (collectively “Higgins”) appeal from a judgment in favor of Benny’s Venture, Inc. (“Benny’s”) on its action in trover seeking damages for the Higgins’s wrongful possession of Benny’s automobile emission testing machine. For the reasons that follow, we affirm.

While we apply a de novo standard of review to any questions of law decided by the trial court, factual findings made after a bench trial shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses. Because the clearly erroneous test is in effect the same standard as the any evidence rule, appellate courts will not disturb fact findings of a trial court if there is any evidence to sustain them.

So viewed, the evidence shows that Benny’s operated a used-car dealership and emissions testing business on property leased from Higgins. After a dispute arose over the renewal of Benny’s lease, Higgins did not renew the lease and ultimately executed a writ of possession on the property. Due to an oversight by its attorney, Benny’s was not prepared for the eviction when sheriffs deputies arrived to evict the business from the property. During the eviction process, Ben Okpalefe, the owner of Benny’s, explained to the deputies that the machine could not be moved because it was “connected to the State grid,” and they needed permission from the State to disconnect it. The deputies instructed Higgins to cooperate with the owner of the machine and allow it to be removed at a later date when permission from the State had been obtained. Thus, the machine was not moved during the eviction.

After Okpalefe obtained permission to move the machine, he contacted the Sheriffs department, and when he returned with a deputy to retrieve the machine, Rosie prohibited him from removing it. She then began using the machine to conduct emission inspection operations. Benny’s filed suit seeking damages and return of the machine. A bench trial ensued, and the judge awarded the machine and damages to Benny’s.

Higgins filed this appeal contending that the trial court erred by entering judgment against them because the machine was abandoned once the dispossessory writ was executed and the machine was left behind. We disagree.

OCGA § 44-7-55 (c) provides:

Any writ of possession issued pursuant to this article shall authorize the removal of the tenant or his or her personal property or both from the premises and permit the placement of such personal property on some portion of the landlord’s property or on other property as may be designated by the landlord and as may be approved by the executing officer; provided, however, that the landlord shall not be a bailee of such personal property and shall owe no duty to the tenant regarding such personal property. After execution of the writ, such property shall be regarded as abandoned.

Decided March 16, 2011

Reconsideration denied March 31, 2011

Macklyn A. Smith, for appellants.

Alfred & Rutledge, Chiri N. Rutledge, for appellee.

This Court has interpreted the latter portion of this provision “as being contingent upon the landlord first placing the tenant’s property on some portion of the landlord’s property or on other specific property designated by the landlord and approved by the executing officer.” Otherwise, the landlord would have “carte blanche to do whatever he or she liked with the tenant’s personal property, including even destroying it, at the moment the writ of possession is issued.”

Here, the evidence showed that the property in question was left in place when the writ was executed, with an instruction to the landlord by the executing officer to allow the tenant to later remove it. Therefore, the property was not “placed on some portion of the landlord’s property” as required by the statute, and it was therefore not abandoned. Accordingly, the evidence supported the trial court’s judgment because the landlord refused the owner’s timely attempt to retrieve the machine.

Judgment affirmed.

Ellington, C. J., and Andrews, J., concur.

       (Citations and punctuation omitted.) Washington v. Harrison, 299 Ga. App. 335, 336 (682 SE2d 679) (2009).

       Id. at 339 (1).

       Id.

       See id.

       See id.


text:
    A10A2282.
    LUSTRE-DIAZ v. ETHERIDGE et al.
    (709 SE2d 309)
   Doyle, Judge.

Following an automobile collision, Sergio Lustre-Diaz, a passenger in one of the vehicles, sued Willie Stancil Etheridge and Farmland Dairies, LLC, seeking damages for injuries allegedly caused by the milk truck driven by Etheridge. After a trial, a jury returned a verdict in favor of the defendants, and Lustre-Diaz now appeals, contending that the trial court erred by finding no evidence of spoliation and failing to remedy the unavailability of certain photographic evidence. For the reasons that follow, we affirm.

The undisputed trial evidence showed that Lustre-Diaz was a passenger in a vehicle traveling westbound on a divided four-lane highway, as was the milk truck. At some point, Lustre-Diaz’s vehicle, traveling in the left lane, crossed over the median and into the eastbound lanes, where it was struck by oncoming vehicles. At nearly the same time, the milk truck, which was on a delivery route, overturned into the median and eastbound lanes.

The parties disputed how the accident happened. Lustre-Diaz offered evidence that his vehicle was in the left lane and the milk truck was in the immediate right lane. Lustre-Diaz’s driver testified that he slowed when he saw a patch of ice on the road, and the milk truck hit him from the right side, sending him left across the median and into oncoming traffic. By contrast, the milk truck driver testified that he was traveling in the left lane at all relevant times, his truck never touched Lustre-Diaz’s car, and he swerved into the median to avoid an unrelated vehicle abruptly cutting him off. Therefore, the defendants argued that Lustre-Diaz’s injuries were caused by the ice, not the milk truck.

The trial evidence included various photographs taken of the vehicles involved. During discovery, the defendants responded to a discovery request for relevant photographs by providing black and white photocopies of photographs of the milk truck. Also during discovery, Lustre-Diaz asked for color copies of the photographs, and the defendants’ counsel replied in a letter that “I do not have color copies of those photographs in my file. I believe the majority of the photographs were taken by the investigating officer. If I am able to secure color copies, I will provide you with a copy.” Five days prior to trial, Lustre-Diaz served a notice to produce all original photographs taken of the milk truck by “Defendants, their representatives, insurance company or the adjusting company.” No original photographs were produced.

At trial, during questioning of Lustre-Diaz’s expert, Lustre-Diaz’s counsel made a reference to the lack of certain original photographs of the milk truck, copies of which had been produced. The defendants objected, explaining that they had never possessed originals, they only had copies, and they produced their copies to Lustre-Diaz. The trial court found no evidence of spoliation and limited questioning as to the unavailability of any photographs. Similarly, the trial court denied Lustre-Diaz’s written request to charge stating that Lustre-Diaz “seeks to recover damages based upon a claim of spoliation of evidence” and listing proposed elements of such a claim.

Lustre-Diaz contends that the trial court erred by finding no evidence of spoliation and declining to provide any remedies. Lustre-Diaz points to the undisputed fact that the defendants produced black and white photocopies of photographs, which, he argued, showed that the defendants or their agents at one time had original photographs that were not produced despite appropriate pre-trial discovery requests and notice to produce. Based on the record before us, we discern no reversible error.

Trial courts have the power to control the behavior of litigants before them to maintain the integrity of the judicial process, and this power includes the discretion to fashion appropriate remedies for the spoliation of evidence. Spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation. Sanctions may be imposed against a litigant based on a third party’s spoliation of evidence if the third party acted as the litigant’s agent in destroying or failing to preserve the evidence. We will not disturb a trial court’s [decision on the] imposition of sanctions for evidence spoliation unless the court abused its discretion. Moreover, we will uphold a trial court’s finding [with respect to] wilful discovery abuse if there is any evidence to support it. In determining whether to impose sanctions for evidence spoliation, trial courts routinely and necessarily make factual findings about whether spoliation occurred, whether the spoliator acted in bad faith, the importance of the compromised evidence, and so on. . . . The trial court — not the jury — determines what evidence the jury may hear and which issues it must resolve.

Here, it is undisputed that original photographs existed at some point, because the defendants were in possession of copies. However, those copies were produced to Lustre-Diaz, and the issue is whether the defendants or their agents were in possession of original photographs that were not produced. During trial, defense counsel explained that the originals could have been useful to the defense as well, and he represented to the trial court that the defendants had produced “every photograph that I had, black and white. I did not have any originals. I followed up with my client constantly.” Based on the arguments made and the evidence presented, the trial court made the factual determination that neither the defendants nor their agents were ever in possession of original photographs, and we find no basis in the record for reversing this factual finding. We are cognizant that it is possible and indeed plausible that the photographs in question were taken by the defendants’ insurance company, which could be deemed their agent and support a finding of spoliation. Nevertheless, based on our review of the record, we can only speculate as to the origin of the photographs at issue and whether they were ever in the control of defendants or their agent. Such speculation is not a basis for reversing a trial court’s explicit factual finding.

Decided March 17, 2011

Reconsideration denied March 31, 2011

Greer, Klosik, Daugherty & Swank, John F. Daugherty, Laura H. Mirmelli, for appellant.

Furthermore, we note that the utility of the photographs in question is limited by their content. Lustre-Diaz alleged that the milk truck contacted his vehicle as the truck moved from the right lane into the left lane where Lustre-Diaz was traveling. As argued by Lustre-Diaz, the evidentiary value of the photographs was to dispute the milk truck driver’s testimony that the vehicles did not touch by determining if any paint from Lustre-Diaz’s car was on the driver’s side of the milk truck. The quality of the photocopies available makes them inconclusive on this point. However, only one of the photographs in question depicted the driver’s side of the milk truck, which was heavily damaged when the truck rolled and came to rest onto that side, and the photograph was taken from some distance and provided only an indirect view of the driver’s side of the truck.

Based on the facts of this case and the record before us, we discern no reversible error in the trial court’s ruling. Accordingly, we affirm the judgment of the trial court.

Judgment affirmed.

Ellington, C. J., and Andrews, J., concur.

Sommers, Scrudder & Bass, Matthew P. Lazarus, Teddy L. Sutherland, for appellees.

       (Punctuation and footnotes omitted.) Bouvé & Mohr, LLC v. Banks, 274 Ga. App. 758, 762 (1) (618 SE2d 650) (2005).

       It appears from the record that some photographs were taken hy law enforcement investigators.

        See AMLI Residential Properties v. Ga. Power Co., 293 Ga. App. 358, 361 (1) (667 SE2d 150) (2008) (“Whether. . . remedies are warranted ... is a matter for the trial court to decide.”) (punctuation omitted).

       See, e.g., R.A. Siegel Co. v. Bowen, 246 Ga. App. 177, 179-183 (2) (539 SE2d 873) (2000) (spoliation finding against defendant affirmed because defendant’s insurance company allowed vehicle to be sold during pendency of suit despite an order to preserve it).

       See, e.g., Taylor v. N. I. L., Inc., 221 Ga. App. 99, 100 (470 SE2d 491) (1996) (“Guesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact. . . .”) (punctuation omitted).

       See Martin v. Reed, 200 Ga. App. 775 (1) (409 SE2d 874) (1991) (affirming denial of spoliation remedy based on the absence of evidence of spoliation).


author: Adams, Judge.

text:
    A10A1816.
    TAYLOR v. WALDO et al.
    (709 SE2d 278)
   Adams, Judge.

Bobby Taylor sued two Villa Rica police officers for false imprisonment, assault and battery, and intentional infliction of emotional distress in connection with his arrest on June 10, 2007. The trial court granted summary judgment to the officers and denied Taylor’s motion for reconsideration. Taylor appeals both orders.

Construed in favor of Taylor, the record shows that Kai Waldo and Troy Hammett, patrolmen for the City of Villa Rica police department, arrested Taylor without a warrant on June 10, 2007, during their investigation of an alleged hit-and-run accident between Taylor and Heather Davis that occurred four days earlier in a grocery store parking lot in Villa Rica. Taylor, who lives in Carroll County approximately two miles outside of Villa Rica’s city limits, admits he was involved in an accident and that his trailer hitch hit Davis’s wheel, but states that he left the scene after giving Davis his name and phone number because there was no damage to either car. Taylor admits that in the following days officers called him and asked him to come to the station for questioning but that he did not go because he felt that Davis was making false accusations against him.

On Sunday, June 10, Waldo and Hammett came to Taylor’s house. The officers were “on the clock” for the Villa Rica police department at the time, wearing uniforms, and driving police vehicles. Waldo, who arrived before Hammett, knocked on Taylor’s door and, when no one answered, walked around taking pictures of Taylor’s truck. Hammett arrived, and Taylor opened the door. According to Taylor, Waldo asked who he was, Taylor stated his name, and Waldo asked for identification. As Taylor went into the house to retrieve it, the officers followed and asked if he had loaded guns in his home; Taylor said he did. Taylor told the officers that he had not invited them in, and he asked his wife to retrieve his driver’s license while he stepped back outside on the porch with the officers.

When his wife returned with his wallet, Taylor opened his wallet and showed the license to the officers. According to Taylor, Waldo then “real aggressively” told Taylor to remove his license from his wallet so that he could have a better look at it. Taylor claims he did not have time to comply with the officer’s request before he was taken down. But he also testified that he did not take out the license because, instead, he “stated to him, sir, can’t you see that[,] and [I] put it right in his face. I said, sir, can’t you see that?” Waldo then “grabbed [Taylor] and throwed [sic] [him] into the yard,” which is approximately one step below his stoop; at the same time, Waldo told him he was under arrest for obstruction. Taylor testified that he did not physically resist the officer as he was being arrested. Hammett’s testimony can be read to support Taylor’s assertion that he did not resist the arrest.

The officers placed Taylor in handcuffs and left them on until they arrived at the police station. During the perhaps ten-minute ride, Taylor complained of chest pains and that the cuffs were too tight. Taylor stated that when they arrived, the officers left him in the back seat of the car, and “high-fived” each other twice while saying “[Taylor] fought the law and the law won.” To address his medical concerns, Taylor was then taken to the hospital. He testified that he sustained bruises to his wrists, abrasions on his stomach, abrasions and other injury to one shoulder and one on the side of his face. He also asserts that, all in all, it was the most humiliating experience of his life; he has subsequently received some psychological counseling.

On February 22, 2008, Taylor filed suit against Villa Rica and the officers. He alleged the officers’ conduct amounted to false imprisonment, assault and battery, and intentional infliction of emotional distress. The officers filed a motion for partial summary judgment on Taylor’s false imprisonment claim and, later, a second motion on the remaining claims. Following a hearing, the court granted the officers’ motions on all claims.

The trial court held the officers were entitled to summary judgment on the claim of false imprisonment because they lawfully arrested Taylor outside of their jurisdiction for obstruction that occurred in their presence. The court held that the officers were entitled to official immunity because Taylor had not raised a factual issue regarding actual malice by the defendants.

Summary judgment orders are reviewed de novo. Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996). To prevail on a summary judgment motion, the moving party must “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law” when looking at the facts in the light most favorable to the other party. OCGA § 9-11-56 (c).

1. In essence, the trial court held as a matter of law and undisputed fact that the arrest was lawful because obstruction occurred in the officers’ presence. Taylor contends that because the officers arrested him outside of their jurisdiction without a warrant, the trial court erred by holding that the arrest was lawful. He also contends there are material issues of relevant fact. We agree with the trial court.

In general, our state constitution restricts a municipal police officer from exercising powers outside city limits. Ga. Const, of 1983, Art. EX, Sec. II, Par. Ill (b) (2); OCGA § 40-13-30. Nevertheless, “[a] law enforcement officer may make an arrest without a warrant for an offense committed in his presence. OCGA § 17-4-20. This is true even if the arrest is outside his jurisdiction. [Cits.]” Wells v. State, 206 Ga. App. 513, 515 (1) (426 SE2d 231) (1992). See, e.g., Delong v. Domenici, 271 Ga. App. 757, 758-759 (1) (610 SE2d 695) (2005).

Taylor argues that the arrest was ultra vires and therefore no immunity can attach. He relies on part of comment g of Section 895D of the Second Restatement of Torts for the proposition that “An immunity protects an officer only to the extent that he is acting in the general scope of his official authority.” But Taylor ignores the remainder of the same comment which explains that when an officer is engaged in discretionary conduct, he is immune even if his decision is wrong:

In many cases an officer is under a duty to make a preliminary determination of whether he has the authority or jurisdiction. When he exercises discretion in making that decision and takes action pursuant to it, he is performing his official duty and will still be protected by the immunity for discretionary conduct, even though his decision is erroneous.

Restatement 2d of Torts, § 895D, Comment g. And making a warrantless arrest is a discretionary act. See Delong, 271 Ga. App. at 758-759; Selvy v. Morrison, 292 Ga. App. 702, 704 (665 SE2d 401) (2008). Thus, even if the officers did not have probable cause to arrest Taylor, they had the authority and discretion to arrest outside their jurisdiction for offenses committed in their presence. Their immunity, therefore, cannot be defeated by their decision to arrest outside of their jurisdiction. See generally Selvy, 292 Ga. App. at 705-706.

2. The court correctly held that the officers were protected by official immunity with regard to each of Taylor’s claims. We agree.

Public agents are immune from liability for their discretionary acts unless they are done with malice or intent to injure:

The doctrine of official immunity, also known as qualified immunity, . . . “protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption.” [Cit.] Under Georgia law, a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure. [Cit.]

Cameron v. Lang, 274 Ga. 122, 123 (1) (549 SE2d 341) (2001). See also Delong, 271 Ga. App. at 758. A showing of actual malice is required, which is more than ill will:

[I]n the context of official immunity, actual malice requires a deliberate intention to do wrong, and denotes express malice or malice in fact. This definition is consistent with express malice which, in criminal law, is similarly defined as a deliberate intention to do an unlawful act. . . . Actual malice requires more than harboring bad feelings about another. While ill will may be an element of actual malice in many factual situations, its presence alone cannot pierce official immunity; rather, ill will must also be combined with the intent to do something wrongful or illegal.

(Citations and punctuation omitted.) Adams v. Hazelwood, 271 Ga. 414, 414-415 (2) (520 SE2d 896) (1999). “A deliberate intention to do wrong such as to constitute the actual malice necessary to overcome official immunity must be the intent to cause the harm suffered by the plaintiffs.” Selvy, 292 Ga. App. at 704. Taylor has not even argued that the record contains evidence of actual malice or intent to injure.

Our own review of the facts shows there is no evidence of actual malice or intent to injure with regard to the claim of false imprisonment. There is no evidence that the officers deliberately intended to wrongfully arrest and imprison Taylor. At most the evidence shows that Waldo was motivated by Taylor’s display of the wallet and license and a belief that failure to follow his precise instructions automatically amounted to obstruction. See, e.g., Selvy, 292 Ga. App. at 705-706 (even if no probable cause existed for disorderly conduct arrest, without evidence of actual malice, immunity still applied).

There is no evidence of actual malice with regard to the charge of assault and battery. “The right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” (Citation, punctuation and footnote omitted.) Tittle v. Corso, 256 Ga. App. 859, 863 (1) (569 SE2d 873) (2002). Here, construed in favor of Taylor, the facts only show that Waldo unnecessarily threw him to the ground and handcuffed him roughly. Without more, this evidence does not show that Waldo’s “use of physical force was so excessive or unnecessary as to demonstrate a deliberate intent to do wrong.” Id. See also Selvy, 292 Ga. App. at 705-706 (showing of actual malice or intent to injure requires more than “poor judgment, rude behavior, and reckless disregard for the rights and safety of others”). This Court came to the same conclusion based on similar facts in Tittle (threatening motorist with dog attack and slamming a motorist against his car) and Selvy (grabbing arrestee’s arm, twisting it behind her back, slamming her face into the wall, as well as kicking her legs out from under her and inadvertently kicking her ten-year-old son in the process). See also Valades v. Uslu, 301 Ga. App. 885, 887 (689 SE2d 338) (2009) (officer pulled arrestee’s hair, picked her up causing injury to shoulder, and threw her on the ground).

Decided March 8, 2011

Reconsideration denied April 1, 2011

Gary P Bunch, for appellant.

For many of the same reasons, we find no evidence of actual malice with regard to the claim of intentional infliction of emotional distress. Taylor testified that the officers ignored his complaints of chest pain. And the officers apparently celebrated their arrest and told Taylor at the station that if he did not get out of the patrol car on his own, he would not get medical help. But Taylor was in the car for, at most, ten minutes and in a holding cell for only “minutes” before emergency medical technicians began to assist him, whereupon he was taken to the hospital by ambulance. Even if the officers intended to upset Taylor, none of their actions can be considered wrongful or illegal. Compare Gardner v. Rogers, 224 Ga. App. 165 (480 SE2d 217) (1996) (arresting officer used excessive force to take arrestee into custody, took her to a school parking lot and concocted charges against her with another officer).

For the above reasons, the trial court’s grant of summary judgment is affirmed.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

Gray, Rust, St. Amand, Moffett & Brieske, Althea S. Prince, for appellees.

       Taylor originally alleged that the officers were acting within the scope of their employment with Villa Rica and that, therefore, the city was liable under the doctrine of respondeat superior. Taylor later dismissed the City as a party.

       The officers occasionally refer to the false imprisonment claim as a false arrest claim.

       The court did not address whether Taylor’s claims were premature because the underlying criminal case remained pending. On appeal, Taylor asserts that a jury acquitted him of hit-and-run on June 23. 2010.


author: Blackwell, Judge. BARNES, Presiding Judge,

text:
    A10A2121.
    PARAMOUNT CONTRACTING COMPANY v. DPS INDUSTRIES, INC.
    (709 SE2d 288)
   Blackwell, Judge.

Paramount Contracting Company needed several hundred truckloads of dirt for a construction project, and DPS Industries, Inc. had dirt. DPS offered to sell its dirt to Paramount and to haul the dirt to the construction site. DPS says that Paramount accepted this offer, but Paramount denies it. Paramount ultimately bought dirt from another vendor, and DPS sued Paramount for breach of contract. The case was tried by a jury in Clayton County, which ultimately returned a verdict for DPS. After the trial court entered judgment on the verdict, Paramount brought this appeal.

The question of contract formation was a disputed issue at the trial of this case, and the parties disagreed about whether the issue is governed by Article 2 of the Uniform Commercial Code or the common law. We have observed before that it is easier, generally speaking, to form a binding contract under Article 2 than under the common law. See D. N. Garner Co. v. Ga. Palm Beach Aluminum Window Corp., 233 Ga. App. 252, 256 (2) (504 SE2d 70) (1998); see also J. Lee Gregory, Inc. v. Scandinavian House, 209 Ga. App. 285, 289 (2) (433 SE2d 687) (1993). Article 2 applies, however, only to contracts for the sale of goods, Heart of Texas Dodge v. Star Coach, 255 Ga. App. 801, 802 (1) (567 SE2d 61) (2002), and it does not apply to contracts for the mere provision of services or labor. J. Lee Gregory, 209 Ga. App. at 287 (1). When a transaction involves both the sale of a good and the provision of services or labor, whether the transaction is governed by Article 2 depends upon the “predominant purpose” of the transaction, Olé Mexican Foods v. Hanson Staple Co., 285 Ga. 288, 290 (676 SE2d 169) (2009), or, put another way, “ ‘the thrust of the [transaction] as it would exist in the minds of reasonable parties.’ ” J. Lee Gregory, 209 Ga. App. at 288 (1) (quoting Meyers v. Henderson Constr. Co., 370 A2d 547, 550 (N.J. Sup. Ct. 1977)). “When the predominant element of a contract is the sale of goods, the contract is viewed as a sales contract and [Article 2] applies, even though a substantial amount of service is to be rendered in installing the goods.” Heart of Texas, 255 Ga. App. at 802 (1).

At the trial of this case, the parties disputed not only the predominant purpose of the contemplated transaction, but also the scope and nature of the transaction. DPS said that the parties contemplated only that DPS would sell and deliver dirt, and DPS urged that Article 2 applies because, according to DPS, the sale of goods — the dirt that DPS offered to furnish to Paramount — was the predominant purpose of the contemplated transaction. Paramount, on the other hand, said that the parties also contemplated that DPS would perform other tasks, such as placing and compacting dirt at the construction site. And even if the parties contemplated nothing more than the sale and delivery of dirt, Paramount argued that the common law applies nonetheless because, Paramount said, the provision of a service — the hauling of the dirt — was the predominant purpose of the transaction. The trial court put the question of predominant purpose to the jury. Paramount contends on appeal that the trial court instead should have determined as a matter of law that the predominant purpose of the transaction was the provision of services and, for this reason, the common law applies. We do not agree.

To determine the predominant purpose of a contemplated transaction, a court obviously first must determine what the transaction involved, that is, what the parties contemplated each would be required to do to complete the transaction. Here, exactly what, in the contemplation of the parties, DPS would do in connection with the construction project was hotly disputed at trial, and evidence pointing in different directions was adduced at trial. It was for the jury to weigh the conflicting evidence, resolve this disputed issue of fact, and determine exactly what the contemplated transaction involved. So long as the evidence would permit a rational jury to resolve this issue in a way that would lead to a conclusion that the sale of goods was the predominant purpose of the contemplated transaction, it was not error for the trial court to put the question of predominant purpose to the jury.

Viewing the evidence in the light most favorable to DPS, we conclude that the jury properly could have found that the parties contemplated a transaction of which the predominant purpose was the sale of goods. Paramount, a civil engineering firm and general contractor, was awarded a contract in early 2006 to construct runway improvements at the Atlanta Hartsfield-Jackson International Airport. When Paramount had prepared its bid for this construction project, it had asked DPS to quote a price for supplying the fill dirt that Paramount would need to complete the project. In response to this request, DPS had given Paramount a written quote for the price of furnishing and hauling fill dirt, and Paramount had incorporated this price into its bid. The written quote identifies the scope of the contemplated work as “furnish[ing] and haul[ing]/deliver[ing] borrow dirt from DPS’s location to the job site,” and it specifically excludes the provision of “traffic control, dust control, security and escort services” from the scope of work. The quote warrants that the dirt to be furnished to Paramount “has been approved by the [Georgia Department of Transportation] as a suitable borrow dirt.” The quote invites Paramount to test the quality of the dirt. And it provides that the dirt would be delivered in “fully loaded tandem dump trucks” for a price of “$140/Truck Load.”

When Paramount learned in January 2006 that it had submitted the low bid for the construction project, it contacted DPS again about the volume of dirt that it would need and the number of trucks that would be needed to haul the dirt to the Airport. At that point, DPS believed that the parties had reached a definitive agreement for DPS to sell and deliver the dirt that Paramount needed, and on January 25, DPS memorialized its understanding in a letter to Paramount. In this letter, DPS confirmed that it was “holding approximately 45,000 [cubic yards] of borrow dirt ready to be hauled in to your project once we receive [the] 10-day notice from you.” Paramount did not respond in writing to this letter.

Over the next two months, DPS sent other letters to Paramount in which DPS reiterated its understanding that the parties had reached a definitive agreement. Paramount did not respond in writing to any of these letters either. Finally, after officers of DPS and Paramount met in person on April 7, 2006, Paramount sent a letter to DPS in which it disputed that the parties had reached a definitive agreement. In this letter, Paramount referred repeatedly to the purchase and sale of dirt, but the letter says nothing about the transportation of the dirt:

[Y]ou insisted that we give commitment to you for buying the dirt before you will give us price [for other work]. This really was a surprise to us. . . . [W]e could not provide you with the commitment letter for the amount of materials that we intend to purchase from you. Also please note that we have never committed to buy all the fill materials from you and it was also discussed during our previous conversations. In the last meeting you were informed that we intend to purchase some materials from you and it may be through other subcontractors. Our decisions will be conveyed to you as soon as possible and will let you know the amount of materials we require you to furnish.

(Emphasis supplied.) Ultimately, Paramount decided to buy the dirt it needed from another vendor.

Viewed in this light, the evidence is consistent with a finding that the sale of dirt was the predominant purpose of the contemplated transaction. The DPS quote contains representations and warranties about the quality of the dirt. The pricing was based on the quantity of dirt furnished, not the miles driven or time spent to deliver the dirt. DPS did not provide separate pricing for the sale of the dirt and its delivery. And Paramount itself, when it disputed for the first time in writing that a definitive agreement had been reached, characterized the transaction repeatedly as one for the sale and furnishing of dirt, not the hauling of dirt.

Paramount says that evidence of the actual costs that DPS would have incurred in completing the contemplated transaction shows that its predominant purpose was the provision of hauling services, and it points to testimony about the various cost factors that DPS considered when it quoted a price to Paramount for furnishing and delivering the dirt. More specifically, Paramount relies on testimony that the costs to DPS of furnishing and hauling dirt would amount to approximately $70 or $80 per load, and that these costs would include both the expenses of operating a backhoe to load trucks and the expenses of operating the trucks. Paramount says that these cost factors all relate to hauling dirt and establish, therefore, that most of the transaction costs for DPS were related to hauling, not furnishing, the dirt.

Paramount’s reliance on this evidence is misplaced for several reasons. First, although a DPS representative did testify at trial about some of the costs DPS would have incurred in the transaction, he never said that these costs were the only costs. Second, not all the costs discussed by the DPS representative are fairly characterized as costs of hauling, rather than furnishing, dirt. For instance, the cost of operating a backhoe is not properly attributable to the hauling component of the transaction because, according to the testimony of another witness, a backhoe was needed both to separate the dirt from the land and to put it on the trucks. Under Article 2, dirt is a “good” only if it is severed from the land by the seller, see OCGA § 11-2-107 (1), so the separation of dirt from the land is a necessary component of the sale of dirt, not its transportation after sale. Third, the testimony of the DPS representative does not attribute a precise value to each of the cost factors, and for this reason, we cannot say with certainty whether most of the estimated cost of $70 or $80 per load is related to the transportation of the dirt, as opposed to the value of the dirt itself. Indeed, other than the hourly cost of a backhoe operator — which, as discussed above, properly reflects a cost of selling dirt, not hauling it — the only precise value attributed to any cost factor was the $16 or $18 per hour expense of operating a truck. There was testimony, however, that each truck could deliver a load in about one hour, so the expense of operating the truck would account, at best, for about 20 percent of the cost of each load. The limited and ambiguous testimony about the transaction costs to DPS simply does not demand a finding that the majority of the costs properly are attributable to the hauling component of the contemplated transaction.

Decided March 16, 2011

Reconsideration Denied April 1, 2011

James J. Dalton II, Lynn M. Swank, Christopher J. McFadden, for appellant.

Wayne B. Kendall, Theresa K. Read, for appellee.

Finally, Paramount asks us to attribute the majority of the costs to hauling on the basis of the conventional wisdom that “dirt is cheap.” We decline this invitation. Dirt might well be cheap, but we have no reason to believe that it is free and no basis for knowing just how cheap it is. And the dirt that DPS offered to furnish to Paramount was not just any dirt, but dirt “approved by the [Georgia Department of Transportation] as a suitable borrow dirt.” We are not prepared to speculate that the commercial value of such dirt is negligible, much less to reverse a judgment entered on a jury verdict based on such speculation. It is the burden of Paramount, as the appellant, to demonstrate reversible error, Resource Life Ins. Co. v. Buckner, 304 Ga. App. 719, 740 (7) (698 SE2d 19) (2010), and it has pointed us to nothing in the record to establish that the trial court erred when it permitted the jury to assess the predominant purpose of the contemplated transaction. For these reasons, we affirm.

Judgment affirmed.

Dillard, J., concurs. Barnes, B J., concurs specially and in the judgment only.

BARNES, Presiding Judge,

concurring specially and in the judgment only.

Although I agree that the trial court did not err in allowing the jury to decide the predominate purpose of the transaction between the parties, I do not agree with all that is said in the majority opinion. Therefore, I concur in the majority opinion, but in the judgment only.

       Article 2 makes contract formation “ ‘easier in several ways. Parties may form a contract through conduct rather than merely through the exchange of communications constituting “offer and acceptance”. . . . Further, Article [2] reduces the formalities required for contract formation.’ ” J. Lee Gregory, 209 Ga. App. at 289 (2) (quoting White & Summers, Uniform Commercial Code § 1.2).

       The trial court determined as a matter of law that dirt is a “good,” as that term is defined in Article 2. See OCGA § 11-2-107 (1) (“A contract for the sale of timber, minerals, or the like ... is a contract for the sale of goods within this article if they are to be severed [from the land] by the seller . . . .”). On appeal, Paramount does not challenge this determination,

       On appeal, Paramount enumerates the denial of its pretrial motion in limine, the denial of its motion for directed verdict, and the denial of its motion for judgment notwithstanding the verdict as error. But as Paramount admits, all three enumerations raise the same issue: whether the trial court should have let the jury decide the predominant purpose of the contemplated transaction. For the sake of simplicity, we address these enumerations together.

       The trial court instructed the jury to ascertain the predominant purpose of the contemplated transaction, to decide the question of contract formation under the provisions of Article 2 if it concluded that the predominant purpose was the sale of goods, and to decide the question of contract formation under the principles of the common law if it concluded that the predominant purpose was the provision of services. Because the jury returned a general verdict, we do not know what it concluded DPS was expected to do or whether it determined that the sale of goods was the predominant purpose of the transaction. For all we know, it framed the contemplated transaction in a way that rendered the provision of services predominant, but it nonetheless found that a contract was formed under the common law. Nevertheless, as we have said in other cases, the possibility that a general verdict was returned on an improper theory of liability requires a new trial. See, e.g., Goldsmith v. Peterson, 307 Ga. App. 26, 30 (2) (703 SE2d 694) (2010); Construction Lender, Inc. v. Sutter, 228 Ga. App. 405, 410 (3) (491 SE2d 853) (1997). We must inquire, therefore, whether the evidence authorized the jury to find some set of facts that would support a determination that the predominant purpose of the contemplated transaction was the sale of goods.

       Following a jury verdict, we review the evidence in the light most favorable to the verdict. Freese II, Inc. v. Moses, 301 Ga. App. 793, 794 (689 SE2d 98) (2009).

       The quote does specify a surcharge of $55 per hour for delivery truck “downtime.” But no party points us to evidence of how much downtime, if any, the parties contemplated, and there is no suggestion in any event that the parties contemplated significant downtime or that DPS would earn significant revenue as a result of downtime. The existence of this surcharge, therefore, does not demand a different characterization of the predominant purpose of the transaction.

       Whether the costs discussed in the testimony of the DPS representative were the only costs — or the only substantial costs — is not apparent from the record. Ambiguities in the testimony are for a jury to resolve, and an ambiguous record affords no basis for us to overturn a judgment entered on the verdict of a jury. See Dumas & Assoc. v. Nalecz, 249 Ga. App. 662, 663 (549 SE2d 730) (2001).

       See Attorney General of Florida, Advisory Legal Opinion No. AGO 82-18 (Mar. 19, 1982) (available at http://myfloridalegal.comyago.nsf/Opinions/) (discussing commercial value of dirt).