author: McMlLLIAN, Judge.

text:
    A14A0152.
    GRAHAM v. THE CITY OF DULUTH.
    (759 SE2d 645)
   McMlLLIAN, Judge.

This is the third appeal that has come before this Court stemming from the events of February 1, 2008, when Matthew Dailey, an intoxicated, off-duty City of Duluth (“the City”) police officer, attacked appellant Leresa Graham and others, including another off-duty police officer, Paul Phillips, who came to Graham’s aid. In Dailey v. State, 313 Ga. App. 809 (723 SE2d 43) (2012), we affirmed Dailey’s conviction on multiple crimes against four victims based on his actions that day. In Phillips v. City of Duluth, 322 Ga. App. XXIV (March 27, 2013) (unpublished), we affirmed without opinion the trial court’s grant of summary judgment to the City of Duluth and two of its police department officials after Phillips filed suit against those defendants seeking damages for the injuries he suffered during the attack. Graham also brought suit against the City, the two police department officials and Dailey, and after dismissal of her claims against the two police officials, the trial court granted summary judgment to the City on Graham’s remaining claims based on respondeat superior and negligent hiring and retention. Graham now appeals from that order.

The relevant circumstances surrounding Dailey’s employment with the City of Duluth Police Department (“Department”) are as follows. Dailey submitted his application for employment to the Department in September 2002, indicating that he was currently certified as a police officer under Georgia law. The application contained a specific section on drug and alcohol use, under which Dailey indicated that he had never been arrested because of alcohol consumption or drug use, had never been disciplined or terminated from employment because of drug or alcohol use, had never called in sick because of drug or alcohol use, and during the past ten years, had never used alcohol during working hours. Further, Dailey also represented that he had never been arrested or convicted of any criminal offense or placed on parole or probation. There is no evidence in the record that any of Dailey’s responses were false at the time they were made.

The first employer Dailey listed under the section on employment showed that Dailey currently worked as a “reserve” or “volunteer” motor deputy for the Fulton County Sheriff’s office and that he had done so since 1999. Dailey indicated his job duties included serving warrants, working at the jail, and assisting at special community events, and listed Major Richard Davis as his supervisor. The second employment Dailey listed was his employment by an advertising agency as an ad salesman to used car dealers, and this appeared to be Dailey’s paid employment at the time he submitted his application.

Consistent with the Department’s Standard Operating Procedures (“Operating Procedures”) governing the hiring and selection of new employees, Major Don Woodruff was assigned the task of conducting a pre-employment background check on Dailey. In December 2002, Woodruff obtained a copy of Dailey’s officer profile report as maintained by the Peace Officers Standards Training Council (“P.O.S.T.”), which reflected that Dailey had obtained his jailer certification and basic law enforcement certification in 2001, and that Dailey’s certifications had never been revoked or suspended. Wood-ruff obtained a copy of Dailey’s birth certificate, high school diploma, college certification and driver’s license, and performed a criminal background check of Dailey through the GCIC and NCIC, which indicated that Dailey had never been arrested, either in the state of Georgia or anywhere in the country.

As part of the pre-employment investigation, Woodruff was also required to interview Dailey’s current and former employers, and Woodruff contacted Stanley Green at the Fulton County Sheriff’s office regarding Dailey’s employment there. However, Woodruff indicated on Dailey’s “Employment Check Off List” that Dailey was a “reserve” and that Green had no information about Dailey.

Dailey was not hired when he submitted his application in 2002, but a position became available about a year later, and Woodruff scheduled a personal interview with Dailey for September 30, 2003. A notation appearing on the Employment Check Off List indicates Dailey was made a conditional offer sometime around October 3, 2003, which was dependent on his evaluation by a licensed psychologist, which Woodruff arranged. Consistent with the Department’s hiring policy, Woodruff also arranged for Dailey to undergo a polygraph examination by an independent polygrapher and a urine screen by an independent entity. Following the completion of these tests, Dailey was deemed fit for duty by the psychologist, drug free, and to have given non-deceptive responses during the polygraph examination.

Unbeknownst to the City, just a few weeks before he was hired, on September 21, 2003, Dailey had been involuntarily committed to a hospital for one night after an incident in his neighborhood (“neighborhood incident”). The record, which includes the incident report and an affidavit from one of Dailey’s neighbors, shows that Dailey, while highly intoxicated, brandished his service weapon and two other weapons in front of his neighbors, who persuaded him to turn the guns over to them because of the danger presented by Dailey having guns in such an intoxicated state. However, Dailey, who stated to his neighbors he had so many guns because he was a police officer, asked for his guns back, and when his neighbors refused, he became “very angry,” and started to walk toward his house to get more guns he said he had there. At that point, Dailey’s neighbors became afraid for their safety and went inside and called police.

The police arrived and talked to Dailey. During this conversation, they detected a strong odor of alcohol emanating from Dailey’s body and breath. Dailey told the officers that he was a Fulton County Sheriff’s Deputy, admitted that one of the weapons he carried to his neighbors’ house was his service weapon, and made a remark to them concerning whether they also carried their weapons when they were off duty. The officers persuaded Dailey to stay at his house and go to sleep and sober up, and Dailey agreed that he would not go out again.

However, about five to ten minutes after the officers left, Dailey went back outside with a flashlight, which he shined into his neighbor’s window. Dailey was using profanity, and the police were again summoned. The officers once again attempted to get Dailey to calm down, but Dailey started yelling words to the effect that he wanted to blow his brains out and then became angry at the officers. The officers tried to persuade Dailey to voluntarily get into their patrol car, and at first he appeared to be cooperating, but then he became belligerent and combative and eventually had to be handcuffed in order to be transported to the hospital for treatment.

On the way to the hospital, Dailey asked one of the police officers if he had ever been addicted to alcohol or drugs and when the officer replied in the negative, Dailey again became combative and attempted to kick out the rear passenger window of the patrol car. Dailey continued to be combative and belligerent after arriving at the hospital, and had to be restrained several times.

The incident report further shows that one of the officers contacted the Fulton County Sheriff’s office to see if he could verify that Dailey worked for them as a Deputy Sheriff. The officer spoke to Fulton County Jail shift commander Lt. Baker, who informed him that he did not know Dailey personally but that he would contact “Major Davis” and notify “O. P. S.” The officer also informed Lt. Baker about Dailey’s “condition” and that he had been involuntarily committed because of suicide threats. Lt. Baker replied that he would have someone who could verify Dailey’s employment contact the officer, but nothing is contained in the record to indicate what follow-up, if any, was done by the Sheriff’s office.

As stated above, Dailey started working at the Department shortly after this incident, and the record does not contain any documented issues concerning his work performance after he was hired. However, in March 2005, Dailey advised his supervisor that he needed to take medical leave, and it was ultimately revealed that Dailey requested the leave so that he could participate in an alcohol treatment program. Dailey was scheduled to come back to work in April, and Major Woodruff arranged for him to undergo a psychological evaluation by a licensed psychologist before he could return to work, and, according to Woodruff’s affidavit, Dailey was declared fit to return to duty. Dailey also provided a letter from a licensed counselor confirming that he was able to return to work and fulfill his duties. Later, in October 2005, Dailey also provided the City with a certificate showing he had completed a comprehensive evening alcohol and drug treatment program. There is nothing in the record to indicate that there were any reported incidents or performance issues related to Dailey’s alcohol use after he returned to work following his treatment in 2005.

The incident in this case occurred almost three years later, on February 1, 2008. The record shows that Dailey came to work early that morning to meet with a solicitor about a court case; the solicitor submitted an affidavit that he was familiar with Dailey from having worked with him before and that at no time, including on that morning, had he ever observed any behavior that indicated Dailey was under the influence of alcohol. Dailey concluded his meeting, and then drove his patrol car to have the oil changed. After he completed that task, Dailey drove his police vehicle back to the station, went off duty, and drove home in his personal vehicle. According to Dailey, he has no recollection of later leaving his home or his encounter with Graham.

As to that encounter, the record shows that Graham was traveling on Level Creek Road in Gwinnett County around 1:00 p.m. that day, when she noticed a car, which she thought was an unmarked police vehicle, parked in the roadway with its door open. She immediately saw a man, subsequently identified as Dailey, running in her lane of travel toward her vehicle. Dailey was not in uniform but was putting on a police issued bulletproof vest with a radio attached as he ran. Dailey was doubled over and grabbing his waist as if he was injured. Because it was obvious that “something was going on with a wounded police officer flagging [her] down,” Graham rolled up her window and locked her doors, but Dailey flashed his badge and told her he was a police officer and that he was injured and needed help. He also attempted to open her back door but was unsuccessful because it was locked. Graham slightly opened her window, and Dailey asked her to call 911. However, when Graham picked up her cell phone to make the call, Dailey became enraged, screamed at Graham that she was going to ruin his career, slapped the phone out of her hand, grabbed for her head, and sprayed her with pepper spray. Graham rolled up the window with Dailey’s arm still inside and screamed for help as Dailey emptied the entire can of pepper spray in her face. Dailey then used the empty can to beat on the window, eventually breaking the glass, and then used the can to strike Graham in the face, telling her he was going to kill her. Although Graham was having difficulty breathing and was mostly blinded by the pepper spray, she continued to scream for help, and other motorists were able to come to her aid and call 911.

Although he was off duty, Officer Phillips happened to be traveling through the area in a marked patrol car and was waved down by another motorist. As Phillips approached Graham’s vehicle, Dailey came out from beside the vehicle, and Phillips initially thought he was a fellow officer in need of help. However, Dailey openedfire, and during the ensuing gun battle, both Dailey and Phillips were shot, and both were taken to the hospital for treatment.

Other facts will be set forth as necessary to address Graham’s specific claims of error.

1. Graham first contends that the trial court erred by granting summary judgment on her claim based on the doctrine of respondeat superior, arguing a jury should decide whether Dailey was acting “under color” of state law at the time he attacked her. But that is not the test to determine the viability of a respondeat superior claim in this state. TGM Ashley Lakes, Inc. v. Jennings, 264 Ga. App. 456, 460-462 (1) (b) (590 SE2d 807) (2003) (distinguishing and explaining concept of “color of employment,” used in the negligent/hiring retention context, and “scope of employment” used in respondeat superior cases); see also Georgia Interlocal Risk Mgmt. Agency v. Godfrey, 273 Ga. App. 77 (614 SE2d 201) (2005) (noting difference between analysis employed in negligent hiring/retention cases and cases involving liability based upon respondeat superior).

The common law principle of respondeat superior is codified in Georgia under OCGA § 51-2-2, which provides that “[ejvery person shall be liable for torts committed by his ... servant by his command or in the prosecution and within the scope of his business____” As our Supreme Court has explained, “the test to determine if the employer is liable is whether the employee was acting within the scope of the employee’s employment and on the business of the employer at the time of the injury.” Chorey, Taylor & Feil, P.C. v. Clark, 273 Ga. 143, 144 (539 SE2d 139) (2000). Thus, “[t]wo elements must be present to render a master liable under respondeat superior: first, the servant must be in furtherance of the master’s business; and, second, he must be acting within the scope of his master’s business.” (Citation and punctuation omitted.) Piedmont Hosp. v. Palladino, 276 Ga. 612, 613 (580 SE2d 215) (2003). Here, it is absolutely undisputed that Dailey was off duty, intoxicated, and not in any way engaged in his law enforcement duties at the time he attacked Graham. To the contrary, Dailey’s criminal conduct in this case was antithetic to his law enforcement duties. “Under Georgia law, ‘if a servant steps aside from his master’s business to do an act entirely disconnected from it, and injury to another results from the act, the servant may be liable, but the master is not liable.’ ” (Citation omitted.) Id. at 614. Accordingly, this is one of those plain and palpable cases in which summary judgment was appropriately granted on this claim. Id. at 617; Clark, 273 Ga. at 145; Mountain v. Southern Bell Telephone & Telegraph Co., 205 Ga. App. 119, 120 (421 SE2d 284) (1992).

2. Graham also asserted claims based on negligent hiring and negligent retention. As to Graham’s claim of negligent hiring, O CGA § 34-7-20 provides that an employer

is bound to exercise ordinary care in the selection of employees and not to retain them after knowledge of incompetency Thus, the appellate courts have recognized that an employer may be liable for hiring or retaining an employee the employer knows or in the course of ordinary care should have known was not suited for the particular employment.

(Citations and punctuation omitted.) Munroe v. Universal Health Svcs., Inc., 277 Ga. 861, 862 (596 SE2d 604) (2004).

Stated differently, a defendant employer has a duty to exercise ordinary care not to hire or retain an employee the employer knew or should have known posed a risk of harm to others where it is reasonably foreseeable from the employee’s “tendencies” or propensities that the employee could cause the type of harm sustained by the plaintiff. [Munroe, 277 Ga. at 863 (1).]

Underberg v. Southern Alarm, Inc., 284 Ga. App. 108, 110 (643 SE2d 374) (2007).

(a) We turn first to the question of whether the City’s preemployment investigation of Dailey was sufficient to meet its duty of ordinary care in hiring him. “While the standard of ordinary care is invariable, yet circumstances of the case may require a greater amount of care to meet the degree or standard of care required by law. Unsuitability is thus properly determined with reference to the particular position involved.” (Citations omitted.) Munroe, 277 Ga. at 862 (1), n. 2. Accordingly, “[w]hether or not an employer’s investigative efforts were sufficient to fulfill its duty of ordinary care is dependent upon the unique facts of each case,” and “employers who fill positions in more sensitive businesses” may be required in the exercise of ordinary care to perform more thorough background investigations. Id. at 864 (2), n. 4.

It is undisputed that the City did not have actual knowledge of Dailey’s tendency to drink to excess and then become belligerent and physically aggressive. It also appears to be undisputed that the City had no knowledge that Dailey had, while intoxicated, brandished his service revolver when not on duty or that he owned, and carried, other weapons when not on duty and in a manner that caused others to fear for their safety. However, Graham contends, based on her expert’s affidavit, that the City should have done more to investigate Dailey prior to hiring him; specifically that the City should have canvassed Dailey’s neighborhood and contacted his supervisor at the Fulton County Sheriff’s office where he worked. Graham contends that had the City taken either of these steps, it would have discovered the 2003 neighborhood incident and realized that Dailey was unsuited to be a police officer. Although we agree with the trial court that canvassing an applicant’s neighborhood is not legally required under the facts and circumstances of this case, we find genuine issues of material fact regarding whether the City exercised ordinary care in conducting its pre-employment background check of Dailey.

As stated above, the pre-employment investigation in this case was performed by Major Woodruff pursuant to the Department’s Operating Procedures, and a copy of the procedures applicable to pre-screening of potential employees has been included in the record on appeal. According to the Operating Procedures, the preemployment investigator should, among other things: (1) check the applicant’s criminal and driving history; (2) determine the applicant’s Georgia P.O.S.T. status; (3) coordinate medical and psychological testing and interviews; (4) ensure that all required documents are available; (5) interview current and former employers of applicant to determine applicant’s work performance record; (6) interview applicant’s personal references; (7) coordinate, where applicable, drug screening, physical agility, polygraph and psychological screening and testing; (8) inspect employee files at current and/or former employers (post-offer of employment)-, and (9) complete a background investigation on applications for review.

The Operating Procedures also contained a separate section on background investigations which were required prior to an applicant being appointed to “new hire” status; these included, at a minimum: (1) verification of the qualifying credentials; (2) review of criminal record; (3) verification of at least three personal references; (4) verification of training achievements; (5) check of employment history; (6) if applicable, verification of citizenship and review of military history; (7) verification of driving record; (8) review of Georgia P.O.S.T. file; and (9) verification of education. This section also provided that “whenever practical” the background check should be conducted in person, although it was permissible to send written forms to references or prior employers.

As stated above, the Employment Check Off List completed by Major Woodruff shows that he called Stanley Green at the Fulton County Sheriff’s office, who apparently indicated he had no information about Dailey due to his status as a “reserve” employee. However, it does not appear that Major Woodruff made any attempt to contact someone at the Fulton County Sheriff’s office who might have known about Dailey’s work performance, and it does not appear Major Woodruff made any attempt to contact Major Richard Davis, although Dailey specifically listed Major Davis as his supervisor on his application when he applied for employment with the City. Moreover, neither the pre-employment check list nor Major Woodruff’s affidavit indicates when he called the Fulton County Sheriff’s office or whether he attempted to check Dailey’s employee file after Dailey was offered a job with the City, as the Operating Procedures seem to require.

These matters are significant for several reasons. The neighborhood incident occurred shortly before Dailey was hired, but approximately one year after Dailey submitted his application to the Department, and the Operating Procedures appear to require the preemployment investigator to update the information from the applicant’s current employment at the time they are offered employment with the City. Further, the incident report from the neighborhood incident indicates the Fulton County Sheriff’s office was contacted about the incident, and the officer who took the call was informed about Dailey’s “condition” and his involuntary commitment. Moreover, the officer who took that call stated specifically that he would inform Major Davis, whom Dailey listed as his supervisor on his Department application, and who would thus appear to be the person the Department should have contacted while conducting its investigation of Dailey. Thus, an inference arises that if Major Woodruff had contacted Major Davis at the Sheriff’s office or had examined Dailey’s personnel file around the time Dailey was hired, he would have discovered the information about the neighborhood incident, including that Dailey had just been involuntarily committed because his drunken behavior placed his neighbors in fear for their safety and that the incident involved his self-identification as a police officer and use of his service weapon. A jury question exists as to whether such information should have raised at least some question as to Dailey’s suitability to be a police officer. Accordingly, properly construing the evidence in Graham’s favor and against the City, see Govea v. City of Norcross, 271 Ga. App. 36, 47-48 (6) (a) (608 SE2d 677) (2004), we believe that a jury must decide whether the City exercised ordinary care in conducting its pre-employment background investigation of Dailey. Underberg, 284 Ga. App. at 111 (1).

(b) However, that does not end our inquiry, because even if the City did not adhere to proper procedures in hiring Dailey, “absent a causal connection between the employee’s particular incompetency for the job and the injury sustained by the plaintiff, the defendant employer is not liable to the plaintiff for hiring an employee with that particular incompetency.” Munroe, 277 Ga. at 862 (1). Although the trial court found that there was no evidence that Dailey had ever inappropriately discharged his pepper spray or committed an assault on an innocent civilian prior to the February 8 incident, we do not believe the test is that narrow. Rather, to establish the vicarious liability of the employer for the employee’s acts, it must be “reasonably foreseeable from the employee’s ‘tendencies’ or propensities that the employee could cause the type of harm sustained by the plaintiff. ‘The employer is subject to liability only for such harm as is within the risk.’Restatement (Second) of Agency, § 213 Comment (d).” Munroe, 277 Ga. at 863.

Here, contrary to the trial court’s findings, we believe that a jury could conclude that Dailey’s propensity to get extremely intoxicated, brandish his service weapon before innocent bystanders, and become belligerent and irrational when questioned or contradicted made him unsuitable to be placed in a position where he would be issued weapons, including pepper spray, which was used in the attack on Graham. Moreover, we note that the City’s Operating Procedures recognize the danger of officers carrying firearms while consuming alcoholic beverages, and specifically prohibits them from doing so. Thus, “the evidence would authorize a jury to conclude that [the City] might have foreseen that personal injury would result from hiring and retaining an officer with [Dailey’s] history . . ..” Govea, 271 Ga. App. at 49 (6) (b).

(c) We must still consider, however, whether Dailey, who was off duty and not performing any official duties at the time of the attack on Graham, was nevertheless acting “under color of employment” at that time.

In [the whole court case of] TGM Ashley Lakes v. Jennings, [264 Ga. App. at 459 (1) (a)], this Court decided that “liability does not attach if the employee committed the tort in a setting or under circumstances wholly unrelated to his employment.” TGM established that an employer may be held liable for torts committed outside the scope of employment, at least where a relationship exists between the employer and the tort victim. “The question is not whether the servant was acting within the scope of his authority, but whether in view of his known characteristics such an injury by him was reasonably to be apprehended or anticipated.” Still, the act must be committed “within the tortfeasor’s working hours or under the color of employment.”

(Citations omitted.) Underberg, 284 Ga. App. at 113 (2). Harvey Freeman & Sons, Inc. v. Stanley, 259 Ga. 233, 234 (1) (378 SE2d 857) (1989); Govea, 271 Ga. App. at 49 (6) (c). Thus, “even for employers who should have known of the dangerous propensities of an employee, they will not be liable if the employee acts on those propensities in a setting or under circumstances wholly unrelated to his employment.” TGM, 264 Ga. App. at 462 (1).

The question then is whether the attack on Graham was “wholly unrelated” to Dailey’s employment as a police officer. Although this is a close case, we think this question must be decided by a jury. Although it is true that Dailey was off duty and not engaged in any law enforcement duties at the time he attacked Graham, he made several objective displays of authority to Graham, including telling her that he was a police officer, putting on his vest with his radio attached, showing her his badge, and instructing her to summon him help. He then became enraged when she did as he instructed, and attacked her with his Department-issued pepper spray before engaging in a shoot out with his Department-issued service weapon, striking Graham’s car and a fellow officer who came to the scene to help. Thus, it appears that he used his position as a police officer to gain access to, and greater control over, Graham’s actions and responses to what she sensed was a dangerous situation. Thus, a jury must decide whether Dailey was acting under color of employment at the time he attacked Graham. Underberg, 284 Ga. App. at 113 (2) (jury issue whether ex-employee acting under color of employment of former employer alarm company at the time of his attack on the plaintiff); Govea, 271 Ga. App. at 49 (6) (b) (jury issue whether employee used his status as a police officer to gain access to the victim).

“Issues of negligence, including failure to exercise ordinary care and the foreseeability of criminal behavior, are not ordinarily susceptible of summary adjudication.” Munroe, 277 Ga. at 866 (2). Because the evidence here is not plain, palpable and undisputable, we must reverse the grant of summary judgment to the City on Graham’s negligent hiring claim.

3. However, we reach a different result with respect to Graham’s negligent retention claim, which was based on the City’s decision to allow Dailey to return to work after he took a medical leave of absence to obtain treatment for issues related to alcohol. At the time that Dailey took this leave, the City had not been alerted to any performance or work issues related to Dailey’s use of alcohol. And even if his request for leave alerted the City that Dailey had a problem with alcohol, it had no actual knowledge or reason to suspect that Dailey became belligerent and physically and verbally combative when drinking. Nor did the City know when Dailey sought treatment that he would use his service weapon in an inappropriate manner while under the influence. In sum, the City did not have actual knowledge of any facts which would have alerted it to the extent of Dailey’s problem or that his use of alcohol might cause him to act in an unsuitable or dangerous manner. Further, the City took steps to ensure that Dailey was fit to return to work following his treatment, and we cannot say that the City should have taken any additional steps prior to allowing him to do so. Thus, we find the trial court properly granted summary judgment on Graham’s negligent retention claim. Mountain, 205 Ga. App. at 120-121 (2).

4. In light of our determination that a jury must decide whether the City should be held vicariously liable for Graham’s injuries, we need not consider her contention that the City failed to provide proper evidence in support of its motion for summary judgment. Further, to the extent that any of the alleged evidentiary deficiencies pertained to Graham’s negligent hiring claim, we find that Woodruff’s affidavit was sufficient to establish the measures that the City took prior to allowing Dailey to return to work.

Judgment affirmed in part and reversed in part.

Phipps, C. J., and Ellington, P. J., concur.

Decided July 3, 2014 —

Reconsideration denied July 23, 2014 —

Oxendine & Sauls, Jarrod H. Oxendine, Flowers and Gaskin, Johnathan C. Gaskin, for appellant.

Gray, Rust, St. Amand, Moffett & Brieske, Harvey S. Gray, for appellee.

       This action was a renewal action from an earlier voluntarily dismissed suit. See OCGA § 9-11-41 (a).

       Graham asserted claims under both federal and state law, and the case was initially removed to federal court. The federal court granted summary judgment on the federal claims and on the claims against the police officials and then remanded the case to state court for disposition of the remaining claims.

       Phillips formed this opinion because Dailey was wearing a bullet proof vest similar to his own and because Dailey had assumed a “professional police” stance when he came out from behind Graham’s car. Like Graham, Phillips also thought that Dailey’s vehicle was an unmarked police car.

       It is undisputed that Dailey used his Department-issued firearm to shoot Phillips.

       The Operating Procedures also explain that “[t]he pre-employment background investigation, while costly and time consuming, is the most useful and relevant component of the selection process.”

       The record shows that Woodruff sent out several “form” letters to Dailey’s former employers, but these have been redacted and the recipients are not discernable. These are attached as Exhibit F to Graham’s response to the City’s summary judgment motion but not identified. Further, although no specific contact person or information is listed, the checklist also indicates that Woodruff contacted Trader Publishing, with whom Dailey was employed as an account representative selling advertising to used car dealerships at the time he submitted his application.

       Although it may have been of obvious benefit in this case, we decline to impose a general duty on the City to conduct a canvas of a prospect’s neighborhood prior to hiring him or her as a police officer. See Munroe, 277 Ga. at 864, n. 4.

       In adopting this standard, our Supreme Court in Munroe rejected plaintiff’s “but for” argument that the employer was liable for negligent hiring or retention of the employee solely because his employment provided him access or opportunity to injure the plaintiff and likewise disapproved language in prior opinions to the effect that a plaintiff in such a case must show the employee’s propensity to commit the precise tortious or criminal act that caused plaintiff’s injury. Munroe, 277 Ga. at 863-864.


source: Caselaw Access Project

author: ANDREWS, Presiding Judge.

license: Public Domain

text:
    A14A0339.
    PERKINS v. THE STATE.
    (759 SE2d 626)
   ANDREWS, Presiding Judge.

Scott Anthony Perkins was found guilty by a jury of multiple counts of aggravated child molestation, aggravated sodomy, and child molestation, plus one count of enticing a child for indecent purposes — all stemming from allegations that he committed these offenses against his two minor stepsons. On appeal from the judgment of conviction entered by the trial court, Perkins does not challenge the sufficiency of the evidence to support the convictions. Perkins seeks a new trial on the basis: (1) that his trial counsel was ineffective because counsel failed to investigate and raise the issue of his mental health and failed to request a jury charge on the issue of whether he was guilty but mentally ill; (2) that the trial court erred by failing to sua sponte order an evaluation of his mental health and charge the jury that it could render a verdict of guilty but mentally ill; and (3) that the trial court erred by considering a pre-sentence report that was not made known to him before it was submitted to the trial court. For the following reasons, we find no reversible error and affirm.

1. To prevail on his claim of ineffective assistance,
[Perkins] must prove both that the performance of his lawyer was deficient and that he was prejudiced by this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC[t] 2052, 80 LE2d 674) (1984). To show that the performance of his [trial counsel] was deficient, [Perkins] must prove that [counsel] performed h[is] duties at trial in an objectively unreasonable way, considering all the circumstances, and in the light of prevailing professional norms. Id. at 687-688 (III) (A). See also Kimmelman v. Morrison, 477 U. S. 365, 381 (II) (C) (106 SC[t] 2574, 91 LE2d 305) (1986). And to show that he was prejudiced by the performance of his [trial counsel], [Perkins] must prove “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U. S. at 694 (III) (B). See also Williams v. Taylor, 529 U. S. 362, 391 (III) (120 SC[t] 1495, 146 LE2d 389) (2000). This burden, though not impossible to carry, is a heavy one. See Kimmelman, 477 U. S. at 382 (II) (C).

Arnold v. State, 292 Ga. 268, 269-270 (737 SE2d 98) (2013).

Perkins did not assert as a defense at trial that he was not guilty because he was legally insane or otherwise mentally incompetent at the time of the charged offenses (see OCGA §§ 16-3-2; 16-3-3; Perkins v. Hall, 288 Ga. 810, 825 (708 SE2d 335) (2011)), nor did he assert a special plea that he was mentally incompetent to stand trial (see OCGA § 17-7-130 (b)). The State produced testimony at trial from one of the minor victims that he was molested by Perkins; additional evidence that Perkins was guilty of the charged offenses in testimony (pursuant to former OCGA § 24-3-16) from the mother, father, and counselors of both victims as to statements made to them by the victims; and evidence of Perkins’s own admission of guilt in a statement he gave to police. Perkins testified in his defense at trial and denied that he committed any of the charged acts.

Perkins seeks a new trial on the basis that trial counsel was ineffective because counsel failed to evaluate his mental health. He points out facts known to trial counsel that showed he had been diagnosed prior to the charged offenses with bipolar disorder; that after the offenses he told police he “need[ed] help”; and that he had an angry disposition and had been physically and verbally abusive toward the minor victims and his wife. On these facts, Perkins claims that, if counsel had raised and investigated evidence that he had a mental health issue, there was a reasonable probability that the result of the trial would have been different because: (1) he would have been entitled to a jury charge on the issue of whether he was guilty but mentally ill; (2) the jury would have reached a verdict of guilty but mentally ill rather than guilty; and (3) on the basis of the guilty but mentally ill verdict, he would have been entitled under OCGA § 17-7-131 (g) (1) to be committed to a penal facility where he could receive treatment for his mental illness.

Under OCGA § 17-7-131 (b) (1), in all felony cases “in which the defense of insanity is interposed,” the jury (or the court in a bench trial) shall find whether the defendant is guilty, not guilty, not guilty by reason of insanity at the time of the crime, guilty but mentally ill at the time of the crime, or guilty but mentally retarded. Moreover,

[i]n all criminal trials in any of the courts of this state wherein an accused shall contend that he was insane or otherwise mentally incompetent under the law at the time the act or acts charged against him were committed, the trial judge shall instruct the jury that they may consider, in addition to verdicts of “guilty” and “not guilty,” the additional verdicts of “not guilty by reason of insanity at the time of the crime,” “guilty but mentally ill at the time of the crime,” and “guilty but mentally retarded.”

OCGA § 17-7-131 (c). Under OCGA § 17-7-131 (a) (2),

“[mjentally ill” means having a disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life. However, the term “mental illness” shall not include a mental state manifested only by repeated unlawful or antisocial conduct.

Accordingly, mental illness less than legal insanity or incompetency at the time of the crime is not a defense to the crime. State v. Abernathy, 289 Ga. 603, 608-609 (715 SE2d 48) (2011). When a defendant is found guilty but mentally ill at the time of a felony, “the court shall sentence him or her in the same manner as a defendant found guilty of the offense. .. .” OCGA § 17-7-131 (g) (1). But in that case, the defendant “shall be committed to an appropriate penal facility and shall be evaluated then treated, if indicated, within the limits of state funds appropriated therefor, in such manner as is psychiatrically indicated for his or her mental illness. . . .” Id.

Under OCGA § 17-7-131, Perkins would have been entitled to a jury charge on whether he was guilty but mentally ill only if he asserted the defense that he was not guilty because he was legally insane or otherwise mentally incompetent at the time of the charged offenses. Accordingly, as to whether trial counsel’s performance was deficient, the issue is whether counsel had information which required him to investigate and raise whether Perkins was sane at the time of the charged offenses.

In a non-capital case, [as opposed to a death penalty case,] a decision to forego or curtail the investigation of the accused’s mental health is not as likely to be unreasonable. Ordinarily, the lack of investigation into a previous mental hospitalization is reasonable when an expert has determined that the defendant is fit to stand trial or that he was sane at the time of the offense. In the absence of such determination, however, where a defense attorney has received information from a reliable source that his client has had a history of psychiatric problems, but failed to adequately investigate this history, counsel failed to provide effective assistance.

Martin v. Barrett, 279 Ga. 593, 594 (619 SE2d 656) (2005) (citations and punctuation omitted). Here, there was no determination by any expert that Perkins was sane at the time of the offenses (or that he was fit to stand trial), and the record shows that trial counsel received reliable information during the course of the trial that Perkins had a history of mental illness in that he had been diagnosed as suffering from bipolar disorder. Despite this information, trial counsel made no effort to investigate Perkins’s history of mental illness. Even assuming under these circumstances that counsel’s failure to seek a psychological evaluation to determine if Perkins was sane at the time of the charged offenses was deficient performance, and that the trial court erred by finding to the contrary, Perkins failed to show prejudice by proving that, but for counsel’s failure, there was a reasonable probability the result of the trial would have been different. Strickland, 466 U. S. at 694. Because Perkins produced no expert testimony at the motion for new trial hearing showing that a psychological evaluation would have aided an insanity defense, his ineffective assistance claim rests on speculation and fails for lack of demonstrated prejudice. Taylor v. State, 298 Ga. App. 145, 148 (679 SE2d 371) (2009); Devega v. State, 286 Ga. 448, 450 (689 SE2d 293) (2010).

2. Perkins claims that the trial court erred by failing to sua sponte order a mental health evaluation and instruct the jury that it was entitled to reach a verdict that he was guilty but mentally ill.

As set forth above, under OCGA § 17-7-131, Perkins would have been entitled to a jury charge on the issue of whether he was guilty but mentally ill only where the defense was interposed that he was not guilty by reason of being insane or otherwise mentally incompetent at the time of the charged offenses. Perkins did not raise this defense at trial, and in Division 1, supra, we addressed his claim that trial counsel was ineffective for failing to seek a mental health evaluation to determine whether there was a basis for him to assert an insanity defense. Where evidence of a defendant’s incompetency comes to the trial court’s attention, the court is required to conduct a sua sponte investigation into the defendant’s competency to stand trial (Jackson v. State, 294 Ga. 431, 434 (754 SE2d 322) (2014)), but for a defendant competent to stand trial, there is no requirement that the trial court sua sponte investigate or raise the defense of insanity (or other mental incompetency) at the time of the charged offense. Holsey v. State, 322 Ga. App. 425, 428 (746 SE2d 133) (2013). Contrary to Perkins’s claim, Ake v. Oklahoma, 470 U. S. 68, 83 (105 SCt 1087, 84 LE2d 53) (1985), did not require the trial court to sua sponte investigate or raise an insanity defense on his behalf. In Ake, the indigent defendant: (1) requested that the trial court arrange to have him examined by a psychiatrist to determine his sanity at the time of the charged offense, or (2) in the alternative, petitioned the court for funds to hire his own psychiatrist. Lindsey v. State, 254 Ga. 444, 447 (330 SE2d 563) (1985) (explaining the holding in Ake). On those facts, Ake held that “when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Ake, 470 U. S. at 83. Perkins made no request, motion, or other affirmative attempt to demonstrate to the trial court that he had an insanity defense, and Ake does not establish a requirement for the trial court to act sua sponte under these circumstances. Although a trial court may exercise inherent authority to “[appoint] experts to testify as to the defendant’s mental capacity at the time of the alleged crimes” (Presnell v. State, 241 Ga. 49, 57 (243 SE2d 496) (1978), rev’d in part on other grounds, Presnell v. Georgia, 439 U.S. 14 (99 SCt 235, 58 LE2d 207) (1978)), there is no requirement that the court do so sua sponte. The trial court did not err by failing to sua sponte order that Perkins submit to a mental health evaluation to determine his sanity, or by failing to instruct the jury that it was entitled to reach a verdict of guilty but mentally ill.

3. Perkins claims that the trial court erred by considering aggravating circumstances in a pre-sentence report because the report was not made known to him before it was submitted to the trial court for the sentencing hearing. See Geyer v. State, 289 Ga. App. 492, 493-494 (657 SE2d 878) (2008). The State disputes Perkins’s claim, and the record is unclear. But even assuming that Perkins was not given the report before the sentencing hearing, in the absence of any objection at the hearing to use of the report, this claim was waived. Eddleman v. State, 247 Ga. App. 753, 754 (545 SE2d 122) (2001).

Judgment affirmed.

McFadden and Ray, JJ., concur.

Decided June 24, 2014 —

Reconsideration denied July 23, 2014 —

McMillan & Rawlings, Walter C. McMillan, Jr., Thomas C. Rawlings, Jason H. Davis, for appellant.

Richard A. Mallard, District Attorney, Daphne H. Jarriel, Assistant District Attorney, for appellee.


author: Miller, Judge.

text:
    A14A0617.
    POLANCO v. THE STATE.
    (759 SE2d 640)
   Miller, Judge.

Following a jury trial, Pablo Polanco was convicted of four counts of armed robbery (OCGA § 16-8-41 (a)), four counts of aggravated assault (OCGA § 16-5-21), four counts of false imprisonment (OCGA § 16-5-41), theft by taking (OCGA § 16-8-2), and possession of a firearm or knife during the commission of a felony (OCGA § 16-11-106). Polanco appeals from the denial of his motion for a new trial, contending that: (1) the trial court erred in failing to merge his aggravated assault convictions into his armed robbery convictions; (2) the trial court erred in refusing to allow him to identify jurors who would have been unfairly prejudiced by the large number of counts in the indictment; and (3) trial counsel rendered ineffective assistance. For the reasons that follow, we affirm in part, reverse in part, and remand for resentencing.

Viewed in the light most favorable to Polanco’s convictions, the evidence shows that the victims Rafael, Raul, Rigoberto, Rodrigo, and Jesus all lived in a house on Doyle Street in Tucker, Georgia, which is located in Gwinnett County. Around 10:00 p.m. on the night of February 12, 2010, Polanco went over to the victims’ house with several others •—Rosa, Braen, Mendy, Frank, Yuri and a juvenile. The juvenile and Yuri rode with Rosa in her Lexus. Polanco, Mendy and Frank rode with Braen in his gray Mercedes. The driver of the Mercedes parked in the victims’ driveway, while Rosa dropped off her passengers and left.

Frank, Yuri and the juvenile went to the back of the victims’ house, while Polanco, Mendy and Braen went to the front and knocked on the front door. Mendy and Braen were carrying firearms, and one of the men was carrying pepper spray. Raul opened the door partway, and saw one of the men pointing a 9mm assault pistol at him. He saw a second man carrying a shotgun. Because the men were unable to push open the door, they went around to the garage, kicked in the door and entered the house. A third man also entered the house armed with a pistol.

When they entered the house, the man with the shotgun shot at Raul, Rafael and Rodrigo to make them get down on the living room floor. The men told the three victims not to move, and then Frank started beating Rafael and Rodrigo on the head with a metal pipe. Meanwhile Polanco, Braen, Mendy, Yuri and the juvenile ran toward the other rooms in the house. The juvenile grabbed two cell phones and then went outside to act as the lookout. Polanco, along with Braen, Yuri and Frank each took turns handing the juvenile electronics taken from the house to put into the back seat of the Mercedes.

Two of the men forced Rigoberto into the master bedroom and hit him on the neck with the butt of a gun, knocking him to his knees. The men then threatened to kill Rigoberto and grabbed items from the room including a television, DVDs, a stereo, a computer and speakers. At one point, Rigoberto tried to get up, but the men kicked him and sprayed pepper spray in his eyes. The men then brought Rigoberto to the living room where they tied all four victims’ hands and feet with duct tape. The men also hit Raul on the head and back with their hands and fists and kicked him.

Jesus was in his room watching TV when the men knocked on the door. Rafael told Jesus that the men were thieves because they had their faces covered. Jesus escaped the house, went to the next-door neighbor’s house and told the neighbor to call the police. Jesus then looked back at his house and saw a man dressed in black standing by a small Mercedes which was parked in the driveway. Jesus also saw two other men dressed in black who were carrying things out of the house, including a television, computer and suitcase containing other items.

Before the police arrived, Jesus saw Rosa pull up in a white Lexus SUV and park next to the driveway. Some of the items, including a duffle bag, were then transferred from the Mercedes to the Lexus. Yuri, Frank, Braen and the juvenile then got into the Lexus, while Polanco and Mendi ran toward the back of the house and left the scene.

At that same moment, the police arrived. Jesus then ran back to the house, saw that the living room was full of blood and the other victims’ hands were bound. Jesus grabbed a knife from the kitchen and then he and Rigoberto, who had untied himself, cut the tape from the other victims’ hands. Jesus then noticed that his Taekwondo sports bag, desktop computer and monitor, MP3 player and some money from his wallet had been taken during the home invasion. Rafael’s cell phone and a car stereo were also taken from the house.

The responding officers stopped the Lexus, drew their weapons, pulled the five occupants—Rosa, Yuri, Frank, Braen and the juvenile — from the Lexus and arrested them. The officers found a duffle bag, laundry basket, speaker box and two firearms — a 9mm assault pistol and a sawed off shotgun —• in the rear of the Lexus. The Taekwondo duffle bag contained protective fighting equipment, some loose change, a wallet with cash in it, a computer monitor, CD player and two cell phones. Officers also recovered three water bottles and some MP3 players from the Lexus, as well as two flat screen televisions in the rear passenger seat of the Mercedes and a roll of duct tape in the Mercedes’ trunk.

A week or two later Yuri provided investigators with Polanco’s name, and he identified Polanco from a subsequent photo lineup. Rodrigo also identified Polanco from the same photo lineup.

1. Polanco contends that the trial court erred in failing to merge his aggravated assault convictions with his convictions for armed robbery. The State concedes, and for the following reasons we agree.

Aperson commits the offense of armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon. OCGA § 16-8-41 (a). A person commits the offense of aggravated assault when he assaults with the intent to rob or with a deadly weapon which, when used offensively against a person is likely to or actually does result in serious bodily injury. OCGA § 16-5-21 (b) (2).

For purposes of armed robbery, the term offensive weapon includes not only weapons which are offensive per se, such as firearms loaded with live ammunition, but also embraces other instrumentalities not normally considered to be offensive weapons in and of themselves but which may be found by a jury to be likely to produce death or great bodily injury depending on the manner and means of their use. Similarly, with regard to the deadly weapon requirement for aggravated assault, our appellate courts have held that a weapon that may be found by a jury to produce death or great bodily injury based on its use in a particular case constitutes a deadly weapon. We therefore conclude that there is no element of aggravated assault with a deadly weapon that is not contained in armed robbery[.]

(Citations and punctuation omitted.) Long v. State, 287 Ga. 886, 889-890 (2) (700 SE2d 399) (2010).

In determining whether one crime merges with another “we apply the ‘required evidence’ test set forth in Drinkard v. Walker, 281 Ga. 211 (636 SE2d 530) (2006). Under that test, we examine ‘whether each offense requires proof of a fact which the other does not.’ ” (Citations and punctuation omitted.) Thomas v. State, 292 Ga. 429, 433 (4) (738 SE2d 571) (2013).

Here, the indictment charged Polanco with using offensive weapons •— a handgun and a shotgun — to commit armed robbery against Rafael, Raul, Rigoberto and Rodrigo. Polanco was charged with committing aggravated assault against those same victims by using a handgun and a shotgun, both of which are deadly weapons, and a metal pipe, which when used offensively was likely to result in serious bodily injury. Neither the indictment, nor the jury’s verdict, however, required the jury to find that Polanco committed the aggravated assaults with a metal pipe. Moreover, the trial court instructed the jury that the State had to prove as a material element of aggravated assault that an assault was made with a deadly weapon; a firearm when used as such is a deadly weapon as a matter of law; and when an indictment charges that a crime was committed in more than one way, proof that the crime was committed in one of the separate ways alleged in the indictment makes a prima facie case. Finally, these actions arose out of the same act or continuous transaction as the armed robbery against the same victims and therefore merged as a matter of fact. See Bradley v. State, 292 Ga. 607, 610 (1) (c) (740 SE2d 100) (2013) (since aggravated assault with a deadly weapon does not require proof of any element that armed robbery does not, convictions for both offenses will merge if the crimes are part of the same act or transaction); Ingram v. State, 279 Ga. 132, 133 (2) (610 SE2d 21) (2005) (aggravated assault merged as matter of fact with murder conviction where assault was part of a continuous criminal act, committed at the same time and place and inspired by the same criminal intent). Accordingly, we vacate Polanco’s convictions for aggravated assault and remand for resentencing.

2. Polanco contends that the trial court erred by not allowing him to ask potential jurors whether they would prejudge his case or cause them to be biased based on the large number of charges in the indictment. We disagree.

With regard to the trial court’s limitation on voir dire, Polanco was entitled under OCGA § 15-12-133 to examine the individual jurors as to any matter or thing which would illustrate any bias of the juror in the case. See Stell v. State, 210 Ga. App. 662 (1) (436 SE2d 806) (1993). However, hypothetical questions, such as the question in this case, that would require a response from a juror which might amount to a prejudgment of the case are improper and should be excluded from voir dire. See id.; see also Anderson v. State, 236 Ga. App. 679, 682 (3) (513 SE2d 235) (1999) (prejudgment questions may not be asked in voir dire). Accordingly, the trial court did not err in prohibiting defense counsel’s examination of the prospective jurors regarding their possible reaction to the multi-count indictment.

3. Polanco contends that trial counsel rendered ineffective assistance. We do not agree.

To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. See Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. Furthermore, there is a strong presumption that the performance of counsel was within the wide range of reasonable professional lawyering, and we cannot reach a contrary conclusion unless defendant successfully rebuts the presumption by clear and convincing evidence. Judicial scrutiny of counsel’s performance must be highly deferential.

(Citation and punctuation omitted.) Davenport v. State, 316 Ga. App. 234, 239 (3) (729 SE2d 442) (2012).

(a) Polanco argues that trial counsel should have objected to inadmissible hearsay and a confrontation clause violation. Specifically, Polanco argues that trial counsel should have objected to a detective’s testimony regarding out-of-court statements made by co-defendants Rosa, Yuri, Braen and the juvenile after their arrests.

Here, Rosa, Yuri and the juvenile testified at trial, and trial counsel vigorously cross-examined them regarding their inconsistent statements, and challenged each co-defendant’s veracity based on their favorable plea agreements. Since trial counsel challenged the veracity of the co-defendants who testified under oath and were available for cross-examination, their out-of-court statements were admissible as prior consistent statements. See Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985). Accordingly, any objection to the admissibility of these statements would have been futile and did not amount to ineffective assistance. See Ventura v. State, 284 Ga. 215, 218 (4) (663 SE2d 149) (2008).

Decided July 1, 2014 —

Reconsideration denied July 23, 2014 —

Lynn M. Kleinrock, for appellant.

Daniel J. Porter, District Attorney, Lindsay B. Gardner, Assistant District Attorney, for appellee.

Braen’s statement to the detective that there were two other people involved in the case — “Pa and Mend/’ — constituted inadmissible hearsay because Braen did not testify at trial and was not available for cross-examination. Nevertheless, it is highly unlikely that this isolated reference to someone named “Pa” contributed to the jury’s verdict, given Rodrigo, Yuri and the juvenile’s testimony that Polanco participated in the crimes. Accordingly, Polanco has not shown that the outcome of the trial would have been different but for trial counsel’s failure to object to Braen’s statement.

(b) Polanco argues that trial counsel should have attacked Rodrigo’s identification of Polanco at trial. Specifically, Polanco argues that trial counsel should have questioned the detective about the details of the photo lineup.

Contrary to Polanco’s argument, the record shows that trial counsel vigorously cross-examined Rodrigo regarding his inability to clearly see the perpetrators during the crimes and his subsequent indecisiveness in picking the perpetrators out of the photo lineup. Moreover, trial counsel cross-examined the detective regarding Rodrigo’s equivocation in identifying the perpetrators.

Accordingly, the trial court did not err in denying Polanco’s motion for new trial based on his claims of ineffective assistance of counsel.

Judgment affirmed in part and reversed in part, and case remanded for resentencing.

Doyle, P. J., and Dillard, J., concur.

        Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).


author: MCFADDEN, Judge.

text:
    A14A0409.
    RICHARDSON v. THE STATE.
    (759 SE2d 630)
   MCFADDEN, Judge.

After a jury trial, Leronza Lamar Richardson was convicted of possession of cocaine with intent to distribute, possession of marijuana with intent to distribute, and misdemeanor obstruction of an officer. He appeals, challenging the denial of his motion to suppress and the denial of his Batson motion. He also argues that he received the ineffective assistance of trial counsel. We find that the arresting officer’s decision to detain Richardson was founded on a reasonable, articulable suspicion of criminal conduct and that the officer legally could frisk Richardson. We find that the state articulated race-neutral reasons for exercising its jury strikes. Finally, we find that trial counsel was not ineffective. We therefore affirm Richardson’s convictions.

Viewed in the light most favorable to the verdict, Morris v. State, 322 Ga. App. 682, 682-683 (1) (746 SE2d 162) (2013), the evidence shows that the arresting officer, a deputy sheriff with the Houston County Sheriff’s Office, was monitoring traffic on Interstate 75 when he saw Richardson’s minivan fail to maintain its lane. The deputy signaled for Richardson to pull over. Richardson exited the highway, turned left onto the roadway, turned right onto another street, and then stopped at a gas station, about a mile from where the deputy had activated his lights. Richardson, the only person in the minivan, was extremely nervous. Richardson exited his minivan and told the deputy that he had panicked when he saw the deputy because he was driving on some type of limited permit. He said that he was returning to Moultrie from his job at Wendy’s in Atlanta, three hours away, which did not make sense to the deputy. That, combined with Richardson’s nervousness, made the deputy suspicious that “some type of criminal activity was going on.” Almost immediately, a backup officer with a drug detection dog arrived at the scene.

Within five minutes of Richardson stopping, while the backup officer was in the process of issuing a warning citation for failure to maintain lane, the deputy walked the drug detection dog around the minivan. The dog indicated the presence of contraband on the driver’s side of the minivan. The deputy searched the interior of the minivan, but found only an open container of alcohol. The deputy therefore believed that the drugs were on Richardson’s person and had left an odor on the driver’s side of the minivan, where Richardson had been sitting.

Richardson told the deputy that he was a convicted felon and on probation. The deputy asked Richardson for his license, and then made a telephone call to conduct a background check. The deputy learned that Richardson had been convicted of possessing a firearm as a convicted felon. While the deputy was checking Richardson’s background, the backup officer drove off to another traffic stop; it is not clear at what point Richardson was given the warning citation.

The deputy finished his background-check phone call and then patted down Richardson, looking for weapons. The deputy was very concerned for his safety, given that he was alone with Richardson, that Richardson was so nervous, and the other circumstances, which included the unusual explanation of his travel, the firearm conviction and the drug dog’s alert. During the pat-down search, the deputy felt what he immediately recognized to be contraband on the inside of Richardson’s thigh. The deputy called for another backup officer, explaining that Richardson had drugs on him. Once that officer arrived, the deputy placed Richardson in handcuffs and then put him into the back of his patrol car. Richardson struggled with the deputy as the deputy was trying to remove the contraband. The deputy was able to remove the contraband, fifteen bags of marijuana, a bag of crack cocaine, and a bag of powdered cocaine, all packaged for distribution, not personal use.

1. The trial court did not err by denying the motion to suppress.

“On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous.” Wright v. State, 294 Ga. 798, 801 (2) (756 SE2d 513) (2014) (citation and punctuation omitted). This “means that we sustain all of the trial court’s findings of fact that are supported by any evidence.” Ansley v. State, 325 Ga. App. 226 (750 SE2d 484) (2013) (citation omitted). Because Richardson challenged the credibility of the deputy, “we do not apply a de novo standard of review, which applies only where the facts are undisputed.” Id. at 227 (citation omitted). Compare State v. Underwood, 283 Ga. 498, 500-501 (661 SE2d 529) (2008) (applying de novo standard where evidence is uncontroverted and credibility is not challenged). Moreover, “we may consider all relevant evidence of record, wherever located.” Tyre v. State, 323 Ga. App. 37, 42 (4) (a) (747 SE2d 106) (2013) (citation and punctuation omitted).

(a) The detention after the initial traffic stop had ended.

Richardson argues on appeal that the deputy unlawfully detained him after the initial traffic stop had ended. But Richardson did not raise this argument in his motion to suppress or at the hearing on the motion. He therefore has waived the argument. Locher v. State, 293 Ga. App. 67, 68-69 (1) (666 SE2d 468) (2008).

“In challenging a trial court’s denial of a motion to suppress, a defendant may not argue on appeal grounds that he did not argue (and obtain a ruling on) below. Notwithstanding his waiver, however, [Richardson’s] argument is unavailing.” Bryant v. State, 326 Ga. App. 385, 388 (756 SE2d 621) (2014) (citation and punctuation omitted). As Richardson concedes, the backup officer was writing the warning citation while the drug dog sniffed around the minivan. In less than two minutes, the drug dog had alerted, indicating the presence of contraband. Accordingly, “there was no extension of the stop before officers received a basis independent of the traffic stop to investigate a reasonable suspicion that [Richardson was] in possession of contraband.” State v. Price, 322 Ga. App. 778, 781 (746 SE2d 258) (2013). Moreover, Richardson had told the deputy that he was a convicted felon on probation and was driving on a limited permit, justifying the deputy’s further investigation. See Matthews v. State, 294 Ga. App. 836, 839 (1) (b) (670 SE2d 520) (2008) (“[T]he information developed during the course of the valid traffic stop provided a reasonable, articulable suspicion to prolong [defendant’s] detention beyond the time reasonably required for completion of the traffic stop standing alone.”). Cf. Weems v. State, 318 Ga. App. 749, 752 (1) (734 SE2d 749) (2012) (after officer already had written a warning citation, further detention of defendant was unlawful where the only basis for officer’s actions was the nervousness of defendant and the conflicting stories of defendant and passenger).

(b) The pat-down search.

Richardson argues that the pat-down search was unlawful because it was not supported by a reasonable belief that he was armed and dangerous. Only when a law enforcement officer reasonably believes someone possesses weapons may the officer conduct a pat-down search:

A law enforcement officer, for his own protection and safety, may conduct a pat [-] down to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted. A [police officer] making a reasonable investigatory stop should not be denied the opportunity to protect himself from attack by a hostile suspect. The purpose of this limited search is to allow the officer to pursue his investigation without fear of violence. The question is whether a reasonably prudent [officer] in the circumstances would be warranted in the belief that his safety was in danger.

Jones v. State, 237 Ga. App. 847, 849 (2) (515 SE2d 841) (1999) (citation and punctuation omitted). “[T]he prerequisite determination [is] that the officer actually concluded that the suspect was armed or a threat to personal safety and the officer can articulate a basis for his conclusion so that a... protective pat-down would not be unreasonable in the given set of circumstances.” Edgell v. State, 253 Ga. App. 775, 777 (560 SE2d 532) (2002) (citation omitted).

In this case, the trial court, which had the opportunity to observe the officer as he testified and to make a credibility determination,

concluded that a pat-down [for] weapons was supported by the requisite facts. This [cjourt does not weigh the evidence and cannot judge the credibility of witnesses. We conclude that the evidence before the trial court authorized the court to find that... the officer actually believed that [Richardson] posed a threat to the officer’s personal safety and that such belief was reasonable considering all of the circumstances, including [the deputy’s suspicion of Richardson’s involvement with drugs and Richardson’s prior conviction of a firearms offense].

Santos v. State, 306 Ga. App. 772, 775 (1) (703 SE2d 140) (2010) (citation omitted). See Jones, supra, 237 Ga. App. at 850 (2) (“[W]e have repeatedly held that it is not unreasonable for officers to anticipate that those who are suspected of involvement in the drug trade might be armed. Firearms are tools of the drug trade.”) (citations and punctuation omitted).

2. The Batson challenge.

Richardson argues that the trial court erred by denying his challenge under Batson v. Kentucky, 476 U. S. 79 (106 SCt 1712, 90 LE2d 69) (1986), because he proved that the state engaged in purposeful racial discrimination in its use of peremptory strikes.

Under Batson, the opponent of a peremptory challenge must make a prima facie showing of racial discrimination. O’Connell v. State, 294 Ga. 379, 380 (2) (754 SE2d 29) (2014) (citation omitted). At that point, “[t]he burden then shifts to the [s]tate to offer a race-neutral reason for the strike. Finally, the trial court must determine if the opponent of the strike has proven discriminatory intent. The trial court’s ultimate finding in this regard is entitled to great deference on appeal.” Id. To satisfy its burden to offer a race-neutral reason for the strike, the state

need only articulate a facially race-neutral reason for the strike. Step two does not demand an explanation that is persuasive, or even plausible. At this second step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.

Toomer v. State, 292 Ga. 49, 54 (2) (b) (734 SE2d 333) (2012), citing Purkett v. Elem, 514 U. S. 765, 768 (115 SCt 1769, 131 LE2d 834) (1995) (punctuation omitted). The articulated reason need not be concrete, tangible, specific, or even case-related. Toomer, supra, 292 Ga. at 54 (2) (b). “The explanation for the strike only needs to be facially race-neutral.” Id. (citation omitted). See also Rose v. State, 287 Ga. 238, 241 (695 SE2d 261) (2010) (“Although a striking party’s explanation for the exercise of a peremptory strike may be superstitious, silly, or implausible, the striking party’s burden is satisfied as long as the articulated reason is race or gender-neutral.”) (citation omitted).

The state concedes that Richardson made a prima facie showing of racial discrimination. But it argues that it offered race-neutral reasons for the strikes, which the trial court was authorized to accept and did accept, denying the Batson challenge. Richardson focuses on the state’s strike of two jurors, jurors Jackson and Greene.

The assistant district attorney explained that she struck juror Jackson because “[h]e raised his hand when [she] said, who doesn’t want to be here. He started to raise his hand. He was also a witness for a defendant in the criminal court, the military court, and [she and co-counsel were] concerned about his bias.” Richardson argues that this explanation “strains credibility.” But even if the “prosecutor’s explanations [are not] compelling, . . . the trial court’s ultimate finding is entitled to great deference on appeal, and [Richardson] has not demonstrated that it was clearly erroneous.” Toomer, supra, 292 Ga. at 58 (2) (d) (citation omitted).

The assistant district attorney explained that she struck juror Greene because “[s]he’s a distribution manager. [The assistant district attorney and co-counsel were] not sure how much education [juror Greene] has. She also appeared to be nervous. [Co-counsel] was watching as [the assistant district attorney] was speaking with the jury and he felt that [Greene’s] demeanor was —.” Co-counsel elaborated that juror Greene “was kinda nervous. She trembled and finally toward the end she turned around, took her sweatshirt and made it like a snuggie and relaxed up against the back wall not paying attention.” The assistant district attorney added, “And for the record, it’s not cool in here.” “A peremptory strike based on a juror’s demeanor during voir dire may be deemed to be race-neutral.” O’Connell, supra, 294 Ga. at 381 (2) (citation omitted).

Decided June 26, 2014 —

Reconsideration denied July 24, 2014.

Russell K. Walker, for appellant.

George H. Hartwig III, District Attorney, Marie R. Banks, Assistant District Attorney, for appellee.

“In light of the [s] fate’s race-neutral reasons for striking [the two jurors], and giving great deference to the trial court’s ultimate finding that [Richardson] failed to prove discriminatory intent, we perceive no error in the denial of [Richardson’s] Batson challenge.” O’Connell, supra, 294 Ga. at 381 (2) (citation omitted).

3. Ineffective assistance of counsel.

Richardson argues that trial counsel was ineffective for failing to argue in his motion to suppress that the traffic stop was unlawfully prolonged. However, we have already determined that the stop was not unlawfully prolonged. The “failure to pursue ... a meritless argument does not constitute ineffective representation by counsel.” Walker v. State, 294 Ga. 851, 855 (4) (b) (757 SE2d 64) (2014) (citation omitted).

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.